Dissenting Opinion by
Mk. Justice Musmanno:The jury found this defendant guilty of murder, and the record amply justifies the verdict. I can only deplore that, with the quantity of evidence the Commonwealth could present and did present to substantiate the charge of murder it should have introduced improper evidence which was not at all needed to support the prosecution but whose introduction, as I view it, constituted a violation of the defendant’s rights and, therefore, to that extent denied him due process and thus vitiated the verdict.
The Commonwealth called to the witness stand a Frances Gary who testified that a month before the homicide the victim revealed to her some marks on her body and said that the marks were the result of blows inflicted upon her by the defendant. This testimony was out of order because it was distinctly hearsay and it was so far removed from the occurrence which caused the victim’s death, that it could not possibly be regarded as part of the res gestae of the final crime.
In Commonwealth v. Gardner, 282 Pa. 458, 465, this Court, discussing statements coming within the rule of res gestae, said: “Their sole distinguishing feature is *310that they should be the necessary incidents of the litigated. act, — necessary, in this sense, that they are a part of the immediate preparations for, or emanations of, such act, and are not produced by the calculating policy of actors.” Mr. Gary’s testimony did not qualify under this rule.
I believe that the Trial Court also erred in allowing the introduction of photographs of the murder victim’s dead body. The photographs had no probative value and could only serve to inflame the jury against the defendant. Even the trial Judge had doubts as to whether the exhibits had any evidential value, but he knew that they might arouse sympathy for the deceased and hatred against the defendant. He said: “There are among the exhibits in this case five pictures showing the charred condition of the body of Mrs. Melvin Boden after her demise. Let not those pictures prejudice you in any way, they were admitted after the doctor and those familiar with the condition in which she was found after the fire testified, and they all testified that they substantially represented that condition, they are given to you and admitted into this record with the caution that they shall in nowise prejudice you but you may use them for what evidential value they may have.” (Emphasis supplied.)
The Judge’s exhortation to the jury that they should not allow the gruesome pictures to prejudice them against the defendant is reminiscent of Marc Antony’s speech in which he told the Roman populace that he must not let them see dead Caesar’s body or hear dead Caesar’s will because “it will inflame you, it will make you mad.” And then, after conjuring up the terrible things the populace might do if they saw the body and heard the Avill, he proceeded to show them the body and to read to them the will.