dissenting.
I respectfully dissent from that portion of the opinion which holds that testimony attributing to the defendant a murder, unrelated to the charge for which he was being tried, was not ground for a mistrial. I would hold that defense counsel’s objection to the testimony was not waived and that the judge’s admonition to the jury to disregard the testimony was insufficient to overcome the highly prejudicial effect of the testimony.
Although the record is unclear as to the precise ruling of the judge prior to trial, he apparently ruled admissible, over defense counsel’s objection, a conversation between the defendant and R. F. Smith, a witness for the Commonwealth, which was alleged to have occurred at the State Farm sometime before the murder for which the defendant was being tried. The conversation was alleged to have concerned the planning of the murder for which the defendant was being tried. Smith testified, in part, on direct examination by the Commonwealth as follows:
MR. SMITH: * * * Steve Howard said they couldn’t get both of them, but both of them needed to die. So they will get the one that’s here now. He went on with the method. A gallon can, a paint can, and it was full of liquid. It’s hard to explain what the liquid looked like. It was ethyl, or whatever. You could smell the fumes coming off of it. He is going to do this guy the same way he did that nigger in the penitentiary in ‘82. And I remember he had told me before he got to State Farm how he burnt this black dude to death. And I was in the penitentiary then, and I had seen Steve Howard in this, but I didn’t know he did it. He told me he did it.
MR. ZERKIN: I’m going to object to that, and I move to strike the testimony and ask that it be struck. I think we should go further into it outside of the presence of the jury.
*148The trial judge sustained defense counsel’s objection and stated that the testimony “was not . . . contemplated” when he made his pre-trial ruling. The record does not reflect that the trial judge or defense counsel knew in advance the particulars of the objectionable testimony. Smith was the Commonwealth’s witness and he was testifying on direct examination when the error occurred. Moreover, the Commonwealth was apprised of the judge’s pretrial ruling and, significantly, did not assert in the trial court or in this Court that the witness’ testimony was unexpected. We cannot determine from the record whether the Commonwealth informed its witness of the pre-trial ruling. In any event, the objection by defense counsel was raised in a matter of seconds after the inadmissible statements and was timely. See Caldwell v. Commonwealth, 221 Va. 291, 295-96, 269 S.E.2d 811, 814 (1980)(objec-tion to the reading of irrelevant portions of a statute did not come too late when made as soon as the clerk completed the reading).
After sustaining defense counsel’s objection, the trial judge sua sponte refused a mistrial and decided instead to merely admonish the jury to disregard the last part of Smith’s testimony. The majority holds that after raising objection to Smith’s testimony, the defendant has nonetheless waived his right to a mistrial and waived any objection to the trial judge’s cautionary instruction because defense counsel “did not offer objection to the court’s instruction or request further action.” I find no indication from the record or the law that defense counsel waived objection to the trial judge’s handling of Smith’s remarks.
After affirming defense counsel’s objection, the trial judge stated: “I’m going to tell the jury to disregard it. I know the problems with it, but I’m not going to declare a mistrial.” Since the judge’s ruling precluded defense counsel from the opportunity of requesting a ruling on a mistrial and since formal exceptions are no longer necessary in our courts, the absence of an objection cannot now be taken as a waiver of defendant’s entitlement to appeal the denial of a mistrial. See Code § 8.01-384(A).
Even if the trial court had not ruled sua sponte that a mistrial would not be granted, defense counsel’s initial objection to Smith’s testimony would preserve defendant’s right to appeal and is not waived by the absence of a request for a mistrial. “The failure to make a motion for a new trial in any case in which an appeal [or] writ of error . . . lies to or from a higher court shall not be *149deemed a waiver of any objection made during the trial if such objection be properly made a part of the record.” Code § 8.01-384(B); see also Harrison v. Commonwealth, 183 Va. 394, 32 S.E.2d 136 (1944)(new trial granted to prevent injustice even though no exception was taken to court’s ruling after defendant’s objection); Boggs v. Commonwealth, 199 Va. 478, 100 S.E.2d 766 (1957)(new trial granted to prevent injustice despite the fact that no motion was made for a mistrial after defense counsel stated objections).
Additionally, the lack of objection to the trial judge’s phraseology of the cautionary instruction cannot be deemed a waiver of defendant’s right to appeal this ruling.
The rule in Virginia is well established that a judgment will not be reversed for the admission of evidence which the court afterwards directs the jury to disregard unless there is a manifest probability that the evidence has been prejudicial to the adverse party. The exception to this rule is that the admission of incompetent evidence is reversible error notwithstanding the fact that the trial court, after its admission, instructed the jury to disregard it, if such illegal evidence was so impressive that it probably remained on the minds of the jury and influenced their verdict.
Ashbury v. Commonwealth, 211 Va. 101, 104, 175 S.E.2d 239, 241 (1970)(citations omitted). “There are cases in which the error of admitting improper testimony . . . cannot be adequately overcome by a subsequent direction to the jury to disregard the objectionable evidence or statements.” Washington and Old Dominion Railway v. Ward’s Adm’r., 119 Va. 334, 339, 89 S.E. 140, 142 (1916). This is such a case. Here the error was so great and the testimony was so damaging that the trial judge’s instruction to the jury to disregard the last part of Smith’s testimony was insufficient to overcome the highly prejudicial effect of testimony informing the jury that the defendant committed a prior murder.
Absent well established exceptions, none of which are present in this case, evidence that a defendant has committed crimes other than the offense for which he is then being tried is inadmissible. See Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 892-93 (1983); King v. Commonwealth, 217 Va. 912, 914, 234 *150S.E.2d 67, 69 (1977). The rationale behind the general rule of inadmissibility of prior crimes is that “such evidence confuses one offense with the other, unfairly surprises the defendant with a charge he is unprepared to meet, and, by showing that the [defendant] has a criminal propensity, tends to reverse his presumption of innocence of the crime on trial.” Lewis, 225 Va. at 502, 303 S.E.2d at 893.
Citing LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063 (1984), the majority presumes that the jury obeyed the trial judge’s cautionary instruction. Such a presumption is unwarranted under the circumstances found here. Unlike LeVasseur, where the Commonwealth on cross examination asked an improper question to a defendant who “had, in effect, admitted” committing a murder, the testimony in this case imputing to the defendant an admission of having committed a prior murder would not “pale into relative insignificance” when compared with other evidence proved at trial. Id. at 589, 304 S.E.2d at 657. In this case the defendant took the stand in his own defense and denied having been involved in the murder for which he was being tried. The defendant apparently was never charged and tried for committing the prior murder. Moreover, the unexpected testimony deprived the defendant of the opportunity to put on evidence, as related by defense counsel to the trial judge, that an eyewitness to the prior murder exonerated the defendant.
It is manifestly probable that, despite the judge’s admonition to the jury, the improper testimony indelibly exposed the jury to evidence that (1) inexorably linked the prior murder to the defendant and to the offenses being tried, and (2) tended to prove that the defendant had a propensity to commit murder. The error in this case undoubtedly reversed the presumption of innocence. No amount of warning could have conveyed to the jury the gross impropriety of the testimony. No instruction could have accomplished the subtle feat of erasing evidence of the previous murder from the minds and memories of the ordinary citizens sitting to consider whether the defendant was a murderer. No caution to the jury could have effectively restored the balance to afford the defendant a fair trial. Defense counsel correctly concluded that a cautionary instruction would have been woefully inadequate and could not have cured the prejudice.
*151For these reasons I conclude that the impropriety was manifestly prejudicial and that the trial court erred in refusing a mistrial. Accordingly, I would reverse and remand for a new trial.