dissenting.
I would affirm the conviction.
The principal battleground at trial and upon appeal is the admissibility of evidence of prior beatings of the victim by the defend*310ant. Dr. Jones, Mary Duschell, Eldon Brubaker, Kenneth Perrin and Donald Gilreath testified to a total of five such beatings in roughly the first six months of 1976.
Dr. Jones, an oral surgeon, treated the victim for a broken jaw during May, June and July 1976. He first saw the victim on May 10, 1976, at which time she had a comminuted fracture of the jaw and an impacted tooth. Dr. Jones treated her on several visits thereafter. When the victim appeared in his office on June 21 she had been injured a second time and was black and blue on her face, arms and legs. At that time the victim told Dr. Jones that defendant “had beaten up on her” and that “it was the same guy that did it the first time.”
At the hearing in chambers outside the presence of the jury to determine the admissibility of Dr. Jones’ testimony, he testified that the information given him by the victim concerning the injuries around her mouth were important and helpful in treating her. The trial judge ruled the testimony was admissible.
In my opinion, Dr. Jones’ testimony was admissible under Rule 803(4), Mont.R.Evid.
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
“(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment... or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." (Emphasis added.)
The majority hold the testimony inadmissible because the doctor did not repeat in the presence of the jury that the statements of the victim were important and helpful in treating her injuries. The admissibility of evidence is to be determined by the judge alone and the jury plays no part in determining questions of admissibility of evidence. The judge had already ruled the evidence admissible at the hearing in chambers. A repetition of the foundation testimony *311before the jury, while preferable, was not essential to any function of the jury at trial.
In my view the testimony of Mary Duschell, Eldon Brubaker, Kenneth Perrin and Donald Gilreath concerning prior beatings of the victim by the defendant was also admissible.
Rule 404(b) of the Montana Rules of Evidence states:
“Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (Emphasis added.)
In this case the defendant’s motive and identity were squarely in issue. The prior beatings constitute evidence of continuing marital discord and a motive for the aggravated assault of which the defendant was charged. These prior beatings also were evidence of a prior continuing course of conduct by the defendant toward the victim constituting a common scheme, plan or design.
Where evidence of other crimes is similar to, closely connected with, and not too remote from the one charged, and where they are so related that proof of one tends to establish the other, the evidence is admissible. State v. Jensen (1969), 153 Mont. 233, 455 P.2d 63 and cases cited therein. Although distinguishable on the facts, a child beating case decided by us indicates application of this principle and holds this kind of evidence admissible. State v. Taylor (1973), 163 Mont. 106, 515 P.2d 695.
As stated by the majority, the probative value of this evidence must be weighed against its prejudicial effect in determining its admissibility. It is the only proof of motive, viz. marital discord. It is a continuous course of conduct by the defendant toward the victim over a substantial period of time, contradicts the testimony of some of defendant’s witnesses, and involves the same kind of crime, viz. beatings around the head and face with the fists. When so weighed, I cannot say that the trial judge abused his discretion in admitting this testimony.
*312No hearsay objection was made to the testimony of Deputy Sheriff Ross. Rule 103(a) requires a specific objection on this ground to preserve the issue on appeal. The plain error rule eliminating the need for such objection is inapplicable because such claimed error does not affect a substantial right of the defendant. Rule 103(d), Mont.R.Evid. Here the victim at the trial identified the defendant and testified she knew him.
Accordingly, I would affirm the conviction.
MR. JUSTICE HARRISON concurring.