dissenting.
Although I hold the greatest respect for the views of the members of the majority, I cannot, upon this occasion, conform my judgment to theirs, and am, therefore, constrained to dissent.
I am compelled to this course for two reasons:
First, the decision that has been reached reverses the conviction of a defendant who has had a fair trial, whose guilt is beyond question and whose punishment, fixed by an impartial jury and approved and imposed by an able trial judge, is appropriate to the crime he has committed.
But the other, and more impelling, reason for my deep concern is that the majority opinion reverses prior decisions of this Court, decisions upon which the bench and bar have relied for so many years that the rules and principles therein enunciated have become imbedded in our system of criminal jurisprudence. They ought not now to be disturbed.
The majority opinion holds that it is improper to admit, in a prosecution for murder, evidence of prior assaults by the accused upon his victim. It is stated that this finding is based upon the rule that, “It is not competent to prove that the accused committed other crimes of a like nature for the purpose of showing that he would be likely to commit the crime charged in' the indictment.”
I take no issue with this general rule. It, too, is an ingrained part of our criminal law, and I would scrupulously avoid diminishing its effectiveness. It is the failure of the majority opinion to recognize the exceptions to the general rule with which I take issue.
We have always, in our decisions, recognized and applied these exceptions. The result reached today will overturn those decisions.
Evidence of other, although similar, offenses should be excluded if it is offered merely for the purpose of showing that the accused was likely to commit the crime charged in the indictment. But it should be admitted if it shows the conduct and feelings of the accused toward his victim, if it establishes their prior relations, or if it tends to prove any relevant element of the offense charged. 7 Mich. Jur., *845Evidence, § 48, pp. 390, 392, 393; 9 Mich. Jur., Homicide, § 67, p. 407.
In a charge of murder, malice, motive and intent are most relevant matters for the consideration of the jury. In the case before us, their existence was a crucial issue. The evidence of the prior assaults by the defendant upon his wife was pertinent, material and proper to show their existence.
This Court, on December 5, 1901, decided the case of O’Boyle v. Commonwealth, 100 Va. 785, 40 S. E. 121. By the mere substitution of the name of the present defendant in the place of the name of O’Boyle, we surely decided, more than sixty years ago, the case now before us.
O’Boyle was indicted and tried for the murder of the woman with whom he had lived, prior to the killing, as man and wife. He was convicted of murder in the first degree and sentenced to be hanged.
A witness, introduced by the Commonwealth, was asked:
“Did they ever have any difficulty before (meaning the deceased and the prisoner at the bar), and what were (sic) the nature of those difficulties, if they had any?”
Over the objections of the defendant, the witness was permitted to testify:
“Yes, sir; I saw them have a difficulty a good while before this. He kicked her and beat her once when she lived at my sister’s house last year.”
After a careful and exhaustive survey and discussion of the authorities on the subject, the evidence was held to have been properly admitted, and Judge Keith, then President, speaking for the Court, said:
“The evidence objected to was not admitted as tending to prove the perpetration of the crime with which the prisoner was charged, but for the purpose of showing the relations between the parties, their state of feeling and course of conduct towards each other, and as reflecting light upon the motive and intent with which the act was done. Nor is the admissibility of such testimony to be determined by the length of time which intervened between the threat or act proved, evidence of which is introduced, and the homicide under investigation, but the effect to be attributed to it by the jury will be in proportion to its closeness in point of time, and the directness of its association with the principal fact under consideration.” 100 Va., at p. 792.
“In 3 Russel on Crimes (9th ed.) 288, it is said:
*846“ ‘On the trial of an indictment for murder, former grudges and antecedent menaces are admitted to be given in evidence as proof of the prisoner’s malice against the deceased.’ ” 100 Va., at p. 791.
There is more compelling reason for the admission of the evidence in the case before us than was true in the O'Boyle case. As has been noted, in the O'Boyle case, the evidence was introduced through an independent witness, placed on the stand by the Commonwealth. Here, the evidence was elicited from the defendant, himself, on cross-examination, after he had attempted, while testifying in his own defense on direct examination, to negate malice toward his wife and to suggest a possible plea of self-defense.
The defendant in his direct testimony, told the jury that it was the fact that his wife had been in the company of another man for four hours that caused the trouble between them which resulted in her death.
He also said, “Me and her was fighting,” and when asked by his counsel, “Did she hit you?”, he replied, “Yes,” without any explanation as to whether she had struck him first or whether she had struck him with the axe.
Thus, it was the defendant who put in issue the presence, or the lack, of malice, the motive for the killing and his prior relationship with his wife. It was pertinent and proper for the Commonwealth’s Attorney to question the defendant about his prior conduct toward his wife to rebut his direct testimony. Smith v. Commonwealth, 185 Va. 800, 822, 40 S. E. 2d 273.
But the O'Boyle case is not the first, or only, time that we have recognized the admissibility of such evidence under circumstances similar to those in the case at bar.
In Taylor v. Commonwealth, 90 Va. 109, 113, 17 S. E. 812, we said:
.....“The fact that Ira Mullins’ [the victim] house and bed in which he was lying was fired into about three weeks before the killing, was important, material and proper evidence in view of the testimony of sundry witnesses that the prisoner, over and over again, mentioned it in a way showing that he had done it himself or had procured it to be done.”
In Nicholas v. Commonwealth, 91 Va. 741, 748, 21 S. E. 364, it is said:
.....“In cases of homicide it has always been competent to show the conduct and the feelings of the prisoner towards his victim, and proof *847that he made previous threats, or attempts to kill his victim has always been received.”
We have followed, and never overruled, the principles laid down in O'Boyle v. Commonwealth, supra, in cases involving indictments for murder or assault. Lloyd v. Commonwealth, 185 Va. 674, 40 S. E. 2d 258; Evans v. Commonwealth, 161 Va. 992, 170 S. E. 756; Webb v. Commonwealth, 154 Va. 866, 152 S. E. 366; Colvin v. Commonwealth, 147 Va. 663, 137 S. E. 476; Palmer v. Commonwealth, 143 Va. 592, 130 S. E. 398; Hardy v. Commonwealth, 110 Va. 910, 67 S. E. 522.
In Palmer v. Commonwealth, supra, 143 Va., at p. 601, we approved the admission of evidence of statements made by the defendant prior to his killing the victim, although such testimony proved the commission of another crime, “to show the motive of the accused and to fix the degree of the crime” [Emphasis added].
In Webb v. Commonwealth, supra, 154 Va., at pp. 872, 873, evidence of illicit relations between the defendant and the wife of the deceased was held to have been properly admitted, although proving another crime, “to show .... malice and intent. . . .”
The bench and bar of Virginia are not alone in relying, since the turn of the century, upon our holding in the O'Boyle case. The courts of several of our sister states have cited the case, with approval, in dealing with the question of the admissibility of similar evidence:
In State v. Richardson, 197 Wash. 157, 84 P. 2d 699, evidence of prior offenses, ranging far beyond that admitted in the case before us, was held to be competent to show motive for the killing.
In Dietz v. State, 149 Wis. 462, 136 N. W. 166, Ann. Cas. 1913 C, 732, the defendant killed a deputy sheriff while resisting arrest. Evidence of his having resisted arrest on numerous occasions, dating as far back as seven years prior to the murder, was held to have been properly admitted to show intent or state of mind.
In State v. Long, 88 W. Va. 669, 108 S. E. 279, the O'Boyle case is cited as authority for the admission of evidence, offered by the defendant and refused by the trial court, that the accused and the deceased had a drink of whiskey together the day before the killing, during Prohibition days. The court said such evidence was admissible to show a friendly feeling between the parties, and that, “The question of enmity or friendship existing between the parties prior to a homicide is admissible to show the mental attitude of each toward the other.”
In contrast to the holding in the West Virginia case, last cited, the rule laid down by the majority opinion, in the case before us, would *848force the Commonwealth to accept a defendant, on trial for the murder of his wife, as a stranger to his victim, and she to him. While the defendant could, unquestionably, show that his married life was harmonious, if such were the case, so as to negate malice, motive and intent, the Commonwealth, on the other hand, could not show the contrary, if such were the case, to prove the existence of malice, motive and intent.
The general rule, as well as the exceptions to it, have evolved through long judicial experience as protection, both to the prosecution and to the accused. To be effective, neither the rule nor the exceptions should be applied for or against the one party but not the other. Their effect should fall upon each with the same favor or adverse force.
I do not urge adherence to a rule that places Virginia with a minority of jurisdictions in this respect. As was said in Colvin v. Commonwealth, supra, 147 Va., at p. 669, “The exception to the rule is as well established as the rule itself.” And it is almost universally so held.
In 20 Am. Jur., Evidence, § 310, p. 289, it is stated:
“It is not to be inferred from the [general] rule stated above regarding the inadmissibility of proof of other crimes or offenses that the admission of evidence which shows or attempts to show the commission of an offense other than the particular one with which the accused is charged must be excluded in all cases and under all circumstances. There are, on the contrary, several well-recognized exceptions to and limitations upon the general rule stated. Evidence of other crimes is always admissible when such evidence tends directly to establish the particular crime, and it is usually competent to prove the motive, the intent,........”
In 22 C.J.S., Criminal Law, § 686, p. 1100 ff., it is said:
“As a general rule, evidence of other offenses committed or attempted by accused is admissible to show, or when it tends to show, his criminal intent or purpose with respect to the offense charged, as tending to show his guilt thereof, and proper evidence which proves or tends to prove the particular intent is not to be excluded because it incidentally discloses the commission of an independent crime by accused, or an attempt or threat to commit one.” [Emphasis added].
The majority opinion seems to suggest, without so holding, that the disputed evidence was improperly admitted because there was no evidence as to when the prior beating occurred, or why or how it was done.
The O'Boyle case, supra, has laid at rest any question concerning *849the admissibility of such evidence insofar as the relationship of time between the prior offense and the charge under trial is concerned. Such difference in time relates only to the weight to be afforded such evidence, which is for the jury to determine. There is no issue before us concerning the weight to be given the evidence in question. The defendant makes no contention, in his brief, that the evidence was inadmissible because the time relationship was not shown.
The defendant can hardly complain that the Commonwealth did not show why or how he had previously beaten his wife. The defendant was benefited, rather than prejudiced, by the failure of the Commonwealth to show why or how the earlier beating was administered. As the statements made at the pre-trial conference show, the defendant had previously beaten his wife with an axe. The withholding, by the Commonwealth, of such evidence from the jury was in the defendant’s favor.
The majority opinion also seems to suggest, without so holding, that the conviction must be reversed because the Commonwealth’s Attorney was permitted to ask the defendant, on cross-examination, whether or not he had previously been convicted of a felony. If such be the purpose of the majority, two things must stand in the way.
First, there was no objection made, when the question was asked; no ruling of the trial court was requested and, obviously, no ruling was made; no exception appears, in the record, to the question or the answer.
Section, § 19.1-265 of the Code provides:
“Conviction of felony or perjury shall not render the convict incompetent to testify, but the fact of conviction may be shown in evidence to affect his credit.” Hicks v. Commonwealth, 157 Va. 939, 947, 161 S. E. 919.
This Court recognizes no equal in its determination and zeal to protect the innocent or in its devoted purpose to afford each accused all that the law requires by way of a fair trial. We would hasten to throw a cloak of protection around anyone accused of crime, to insure him due process of law. But our efforts should never go to the extreme of placing about him a cloak of immunity, when such is not his due.
I would affirm the conviction.
Eggleston, C.J., and Snead, J., join in this dissent.