(dissenting).
I quite agree with the idea that the deceased’s state of mind toward defendant, that is, whether she loved or hated him, would be immaterial. The issue in this case appears to be whether the death of defendant’s wife resulted from being beaten by him which seems to me to be the only reasonable view of the evidence, as contrasted with the defendant’s almost preposterous contention that all blood and gore about the place and about seventy-five wounds on her body resulted from accidental falling. Therefore, any evidence which could reasonably be regarded as probative on what was the truth on that issue would be material.
The matter of critical concern is the competency of the evidence in question. The general and fundamental test which underlies the determination of competency is: what are the assurances of credibility?
The facts indicate that five days before the crime, a store clerk, Ms. April Dahl, observed that the deceased had a bruised face and a swollen eye. Ms. Dahl testified that upon her inquiry, the deceased stated, “Ben’s beating me” and that she wanted her (Ms. Dahl) to call the police because the defendant would “kill' me if he finds out I made the phone call.”
This testimony of Ms. Dahl was as to statements made by the deceased, shortly after she had been beaten by the defendant. It was an expression naturally and logically arising out of her observed physical condition, where there would be no motive to falsify; and which had logical relevancy to the issue: whether beatings by defendant resulted in her death. The matter of remoteness in time (four days prior) goes to its weight, not to its admissibility. The first statement comes within an exception *1382to the hearsay rule under Rule 63(12)(a), Utah Rules of Evidence, as “a statement of the declarant’s . . . pain and bodily health, . . . when such a mental or physical condition is in issue . . .i. e., whether defendant was thus beating her and continued to do so, causing her death. The second part of the evidence, requesting the phone call because defendant will “kill me if he finds out I made the phone call,” finds further support in that it can reasonably be regarded as a product of her fear and apprehension of injury and therefore as “a statement which the judge finds was made while the declarant was under the stress of'a nervous excitement” caused by the event or perception which the statement narrates, describes or explains, as provided in Rule 63(4)(b), Utah Rules of Evidence.
The same analysis applies to the testimony of the social worker, Ms. Regina Betonney, as to the conversation she had with the deceased the day before the murder. Ms. Betonney saw the deceased on that day and testified that she had bruises on her cheek, chin, forehead and arms. When Ms. Beton-ney asked how she got the bruises, the decedent stated that the defendant beat her up and that she was “just his punching bag.” At the time, the deceased was shaking and stated that if she left her husband, he would kill her.
These statements also go to the central issue in this case: how did the decedent meet her death? As was noted in United States v. Brown, footnote 9, main opinion, such evidence has been held admissible:
Quite a number of courts have confronted facts similar to those involving hearsay statements made by the victim of a homicide which inferentially implicate the defendant. Such statements by the victim often include previous threats made by the defendant towards the victim, narrations of past incidents of violence on the part of the defendant or general verbalizations of fear of the defendant. While such statements are admittedly of some value in presenting to the jury a complete picture of all the facts and circumstances surrounding the homicide, it is generally agreed that their admissibility must be determined by a careful balancing of their probative value against their prejudicial effect. [490 F.2d at 765-66.] [Emphasis added.]
The statements under attack could reasonably be regarded as relevant and probative of the issue as to the cause of death: and the circumstances under which they were made give sufficient assurances of credibility. These matters, and whether the probative value would be outweighed by danger of undue prejudice to the defendant in having a fair trial were for the trial court to determine. See Rule 45, Utah Rules of Evidence. It has been held that inasmuch as the crime of murder requires that the act be wilfully and intentionally committed, evidence of previous injury to or maltreatment of the victim, by the defendant, is admissible as relevant on the issue of the defendant’s intent. (State v. Gee, 28 Utah 2d 96, 498 P.2d 662, and authorities therein cited.)
Some point is made of the fact that the court instructed the jury that such evidence should not be considered as to its truth or falsity, but only as bearing on the deceased’s state of mind. Assuming that the evidence was competent, as I have set forth above, the instruction thus restricting its consideration, would not be prejudicial to the defendant, if anything it would be to his benefit.
It is therefore my opinion that neither the admission of the evidence, nor the instructions concerning it, was prejudicial error in the sense that in the absence thereof there is any reasonable likelihood that there would have been a different result. It is the mandate of our statute, Sec. 77-42-1, U.C.A.1953, and in implementation thereof, the well established rule of our decisional law, (e. g., State v. Miller, 24 Utah 2d 1, 464 P.2d 844) that we should disregard any error or irregularity unless it is of sufficient substance that in its absence there is a reasonable likelihood that there would have been a different result. Wherefore, I would affirm the conviction..