(dissenting).
I cannot agree with the majority’s holding that Glen Traxler’s testimony was properly admitted into evidence.
In Watson v. State1 we said that evidence which
reveals the commission of an offense other than that for which the defendant is being tried is inadmissible if it is relevant merely to show criminal disposition. But such evidence is admissible, even when it shows the defendant’s prior trouble with the law, when it is relevant to prove some other material fact.2
*358We have adhered to this rule in our subsequent decisions in Kugzruk v. State 3 and Gafford v. State.4 In both of these cases we recognized exceptions to general rule which bars evidence of other independent criminal acts of an accused. In the Kugz-ruk and Gafford cases we also held that not only must such evidence fall within one or more of the established exceptions to the general bar but additionally, the trial judge must balance the relevance and probative value of such disputed evidence against its prejudicial impact before deciding upon its admissibility.5 In the case at bar, Traxler’s evidence does not fall within any recognized exception to the general rule and the relevance and probative value of his evidence was significantly outweighed by its prejudicial impact.
The prosecution’s case against appellant was entirely circumstantial. Dr. Raymond Evans testified that he performed the autopsy upon the body of the deceased. According to the doctor’s testimony, he observed some 200 bruises over Lillian Malcolm’s entire body, all of which were inflicted prior to her death. He further stated that these bruises could have possibly resulted from blows rendered by fists or feet. As to the cause of death, this witness stated that a forceful blow, consistent with someone jumping on the victim’s abdomen, resulted in the separation of the mesentery from the bowel.
When viewed against the objective finding of Dr. Evans concerning the October 1965 fatal beating of the deceased, I can discern no basis for the admission of Glen Traxler’s testimony. Traxler related that in June of 1963, some two and one-half years prior to the death of Lillian Malcolm, "both she and appellant were living in his house in Fairbanks. Traxler further testified that in June of 1963 appellant and the decedent had been “uptown” and had come home but that after they returned, appellant hit her; that the decedent was “all bloody”; that appellant hit her two or three times and kicked her two or three times when she was down. Traxler also stated that the deceased was taken to the hospital in an ambulance which was summoned by appellant and that the entire altercation lasted a minute or two.
At the trial the prosecutor successfully argued that Traxler’s evidence was admissible under the exception which permits evidence of this character to show the identity of the assailant.6 As stated by Professor McCormick, this exception is used
to prove other like crimes by the accused so nearly identical in method as *359to ear-mark them as the handiwork of the accused. Here much' more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinct as to be like a signature.7
I cannot find, as does a majority of this court, that the “nature of the abuse inflicted” in the 1963 and 1965 beatings “was so brutal and unusual and similar” as to warrant the admission into evidence of Traxler’s testimony concerning the 1963 beating. There is nothing so unusual or distinctive in the 1963 beating, when compared with the 1965 beating, which meets the identity exception criterion. Pertinent here is the fact that Dr. Evans testified the 1965 beating resulted in over 200 bruises to the deceased’s body, that these bruises could have possibly been made by fists or feet, and that a blow, consistent with someone jumping on the deceased’s abdomen, caused her death. This is far removed from Traxler’s testimony as to two or three blows and two or three kicks having been administered by appellant to the deceased over two years prior to her death. I, therefore, conclude that Traxler’s testimony did not come within the identity exception to the general rule under discussion.
Assuming a borderline question, I am of the further opinion that the prejudicial effect of this evidence far outweighed any relevance and probative value it might have possessed. I, therefore, conclude that the trial court abused his discretion in overruling appellant’s objection to the reception of this evidence. The prosecution’s case against appellant was entirely circumstantial and, as the trial judge remarked on more than one occasion, was not of the strongest type. In such a context, admission of Traxler’s testimony was prejudicial error.
In light of the foregoing, I conclude that the judgment and commitment should be set aside and appellant granted a new trial.8
. 387 P.2d 289, 293 (Alaska 1983) (footnote omitted).
. In support of this statement, we cited in part Rule 55, Uniform Rules of Evidence, which provides that:
Subject to Rule 47 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to Rules 45 and 48, such evidence is admissible when relevant to prove some other material fact including absence of mistake or accident, motive, *358opportunity, intent, preparation, plan, knowledge or identity.
. 436 P.2d 962, 967 (Alaska 1968).
. 440 P.2d 405, 408 (Alaska 1968).
. In Kugzruk v. State, 436 P.2d 962, 967 (Alaska 1968) (footnote omitted), we said in part that “In our opinion the relevance and probative value of witness Thisby’s evidence outweighed its prejudicial impact.” Cited in connection with this statement was Harper v. United States, 99 U.S.App.D.C. 324, 239 F.2d 945, 946 (1956), where it was said:
Sometimes, however, it is helpful to analyze the law into its basic elements. Thus analyzed, the rule is that evidence of other offenses is admissible when substantially relevant to the offense charged; inadmissible when its relevance is insignificant; and, in borderline eases, admissible when its relevance outweighs the undue prejudice that may flow from it * * *.
See also C. McCormick, Evidence § 157, at 332.
.Prior to Traxler’s giving any testimony, tlie prosecutor informed the trial judge that this witness’ testimony would show that both Lillian Malcolm and appellant had been drinking and that they were intoxicated; that something had happened “downtown” which upset appellant; and that when questioned by the police, appellant said he could not remember, “he kind of blanked out.” The prosecutor concluded his argument on the objection to Traxler’s proposed testimony by informing the trial judge that the only difference between the 1963 and the 1965 incident was that in the latter there were no witnesses and the victim died.
Comparison of Traxler’s actual testimony with the prosecutor’s summary of what the witness would testify to discloses significant variations.
. C. McCormick, Evidence § 157, at 328.
. In reaching this conclusion, I find it unnecessary to base my decision to reverse upon a portion of an instruction the trial court gave the jury concerning Traxler’s testimony. In its instruction the trial court said:
The value, if any, of such evidence depends upon whether or not it tends to show the identity of the person who committed the alleged crime in question in this ease, or whether or not it tends to show the mental and physical capacity and propensity of the defendant to commit the crime charged in the manner alleged. (Emphasis added)
It would appear that the emphasized portion of the court’s instruction enabled the jury to consider Traxler’s evidence as to the 1963 assault for the very purposes the exclusionary rule was fashioned to prevent.