Sims, J.,
after making the foregoing statement, delivered the following opinion of the court:
There are six assignments of error which will be disposed of in their order as stated below.
[1] 1. That the court below erred, “In’ overruling the motion of petitioner for a continuance of the case on account of the absence of material witnesses who had been duly summoned and were not in attendance on the court.”
The testimony of these witnesses, as appears from the record, would have tended, at most, only to show that the deceased was actuated in what he did in the arrest and the taking of Mrs. Rucker to jail, and in the act of putting her therein at the time he was killed, by personal ill will and malice against her, and not by the bona fide purpose of discharging his duty as an officer. But even if it were granted that such was the motive of the deceased, the accused nowhere claims in his testimony that such motive in any way influenced his action in committing the homicide. [822]*822On the contrary the accused expressly and in the most emphatic manner testified that his action in shooting the deceased was induced solely by the motive of self-defense. The testimony of the witnesses in question was therefore wholly immaterial to the issues in the case, as the learned judge of the court below held, and, hence, there was no error in the action of such court in overruling the motion for continuance on account of the absence of such witnesses.
[2] 2. That the court below erred, “In ruling out the evidence of George Rucker, a witness for the Commonwealth, and not permitting him to testify as to the facts concerning the difficulty between him and his wife * * * for, which she said (the deceased) had arrested her * * Thereby depriving petitioner of the right to show to the jury that the arrest was made by (the deceased) on account of malice toward the said Maggie Rucker, and not upon reasonable cause to suspect that felony had been committed, there being no claim or contention that a misdemeanor had been committed by her in the presence of the officer making the arrest.”
For the same reason stated in the consideration of the first assignment of error, there is no merit in this assignment of error.
[3-5] 3. That “the court erred in admitting evidence on behalf of the Commonwealth over the objection of petitioner as to the good habits and good character of the deceased * * to rebut the evidence of the petitioner and his witnesses which .was to the effect that (the deceased) at the time he arrested Maggie Rucker * * used violent and abusive language and profane language to her on said occasion, and that at the time of the killing the (deceased) had used, violent, abusive language to petitioner and advanced toward him and made a demonstration with his hand to get his gun.”
[823]*823The testimony in question was that of a number of witnesses to the effect that they had known the deceased intimately for varying lengths of time, and that they never heard him make use of an oath.
There was testimony of witnesses for the accused, other than thát of himself, and also his own testimony, to the effect stated in this assignment of error, which testimony was introduced by the accused without objection on the part of the Commonwealth. Now in so far as such testimony was not “collateral” and was admissible in evidence in behalf of the accused, had it been obj ected to by the Commonwealth, the rebuttal testimony in question was unquestionably properly admitted as tending to show the non-habit of swearing as pertaining to the deceased, which was of direct probative value as evidence in contradiction of the testimony for the accused on the subject. 2 Wigmore on Ev., secs. 1001, 1003. And-
As said in 1 Wigmore on Ev., sec. 93: “Of the probative value of a present habit, or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day’s experience and reasoning makes it clear enough.”
Again, Idem, sec. 376: “That a negative habit may be shown and not merely an affirmative one seems unquestionable, i. e., that a person systematically omits to do a certain thing * * ”
Such evidence, of habit or non-habit, is admissible, as indicating the probability of the doing or not doing of the act in question, on precisely the same principle that evidence of character or disposition is admissible as evidentiary of the doing or of the non-doing of a human act. 1 Wigmore on Ev., secs. 51, 55, 63, 68, 375.
As said in the learned work just cited (sec. 68): “When . the character offered is that of a third person, not a party to the cause, the reasons of policy (noted ante, sec. 64) [824]*824for exclusion seem to disappear or become inconsiderable; hence if there is any relevancy in the fact of character, i. e., if some act is involved upon the probability of which a moral trait can throw light, the character may well be received.”
[6] The same principle applies, we think, to evidence of the non-habit of the' deceased of swearing, introduced in rebuttal in the case, where the issue of fact had been made by the accused, to the effect that certain conduct of the deceased was such as to justify the killing in self-defense, and that such conduct was so .violent as to be accompanied by profanity.
[7, 8] Accurately speaking, however, only the factum of the use of the profanity by the 'deceased at the time that the accused claimed that the deceased made the hip-pocket movement was material in' the case in judgment; since the other alleged profanity was not directed'against the accused and did not influence his conduct as appears from his own testimony. The other testimony for the accused on the subject of the use of profane language by the deceased wa's, indeed, “collateral matter,” and such testimony would, strictly speaking, have been inadmissible had it been objected to by the Commonwealth. But it does not follow that such testimony, erroneously admitted at the instance of the accused, unobjected to by the Commonwealth, cannot be rebutted by the latter. Another principle comes into operation in such case.
In the nature of things, in the progress of trials in the nisi prius courts, it would be too much to expect the judge to be more vigilant than counsel and to unerringly act in admitting testimony to which no objection is interposed. And it is well settled that if, at the instance of one party, evidence has been admitted, unobjected to, which is immaterial and should not have been admitted, “where such action is needed for removing an unfair prejudice which might otherwise ensue from the original evidence,” it is a proper [825]*825exercise of judicial discretion for the trial courts to admit, evidence from the opposing side in rebuttal of the immaterial testimony which has been thus admitted. 1 Wigmore on Ev., sec. 15 (3). In such case, “A party who draws from his own witness irrelevant testimony, which is prejudicial to the opposing party, ought not to be heard to object to its contradiction on the ground of its irrelevancy.” 29 Am. & Eng. Ency. Law, 793-4. See to the same effect Sisler v. Shaffer, 43 W. Va. 769, 770-1, 28 S. E. 721; McIntyre v. White, 124 Ala. 177, 180, 26 So. 987; Grafton Bank v. Woodward, 5 N. H. 301, 309;
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Sims, J.,
after making the foregoing statement, delivered the following opinion of the court:
There are six assignments of error which will be disposed of in their order as stated below.
[1] 1. That the court below erred, “In’ overruling the motion of petitioner for a continuance of the case on account of the absence of material witnesses who had been duly summoned and were not in attendance on the court.”
The testimony of these witnesses, as appears from the record, would have tended, at most, only to show that the deceased was actuated in what he did in the arrest and the taking of Mrs. Rucker to jail, and in the act of putting her therein at the time he was killed, by personal ill will and malice against her, and not by the bona fide purpose of discharging his duty as an officer. But even if it were granted that such was the motive of the deceased, the accused nowhere claims in his testimony that such motive in any way influenced his action in committing the homicide. [822]*822On the contrary the accused expressly and in the most emphatic manner testified that his action in shooting the deceased was induced solely by the motive of self-defense. The testimony of the witnesses in question was therefore wholly immaterial to the issues in the case, as the learned judge of the court below held, and, hence, there was no error in the action of such court in overruling the motion for continuance on account of the absence of such witnesses.
[2] 2. That the court below erred, “In ruling out the evidence of George Rucker, a witness for the Commonwealth, and not permitting him to testify as to the facts concerning the difficulty between him and his wife * * * for, which she said (the deceased) had arrested her * * Thereby depriving petitioner of the right to show to the jury that the arrest was made by (the deceased) on account of malice toward the said Maggie Rucker, and not upon reasonable cause to suspect that felony had been committed, there being no claim or contention that a misdemeanor had been committed by her in the presence of the officer making the arrest.”
For the same reason stated in the consideration of the first assignment of error, there is no merit in this assignment of error.
[3-5] 3. That “the court erred in admitting evidence on behalf of the Commonwealth over the objection of petitioner as to the good habits and good character of the deceased * * to rebut the evidence of the petitioner and his witnesses which .was to the effect that (the deceased) at the time he arrested Maggie Rucker * * used violent and abusive language and profane language to her on said occasion, and that at the time of the killing the (deceased) had used, violent, abusive language to petitioner and advanced toward him and made a demonstration with his hand to get his gun.”
[823]*823The testimony in question was that of a number of witnesses to the effect that they had known the deceased intimately for varying lengths of time, and that they never heard him make use of an oath.
There was testimony of witnesses for the accused, other than thát of himself, and also his own testimony, to the effect stated in this assignment of error, which testimony was introduced by the accused without objection on the part of the Commonwealth. Now in so far as such testimony was not “collateral” and was admissible in evidence in behalf of the accused, had it been obj ected to by the Commonwealth, the rebuttal testimony in question was unquestionably properly admitted as tending to show the non-habit of swearing as pertaining to the deceased, which was of direct probative value as evidence in contradiction of the testimony for the accused on the subject. 2 Wigmore on Ev., secs. 1001, 1003. And-
As said in 1 Wigmore on Ev., sec. 93: “Of the probative value of a present habit, or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day’s experience and reasoning makes it clear enough.”
Again, Idem, sec. 376: “That a negative habit may be shown and not merely an affirmative one seems unquestionable, i. e., that a person systematically omits to do a certain thing * * ”
Such evidence, of habit or non-habit, is admissible, as indicating the probability of the doing or not doing of the act in question, on precisely the same principle that evidence of character or disposition is admissible as evidentiary of the doing or of the non-doing of a human act. 1 Wigmore on Ev., secs. 51, 55, 63, 68, 375.
As said in the learned work just cited (sec. 68): “When . the character offered is that of a third person, not a party to the cause, the reasons of policy (noted ante, sec. 64) [824]*824for exclusion seem to disappear or become inconsiderable; hence if there is any relevancy in the fact of character, i. e., if some act is involved upon the probability of which a moral trait can throw light, the character may well be received.”
[6] The same principle applies, we think, to evidence of the non-habit of the' deceased of swearing, introduced in rebuttal in the case, where the issue of fact had been made by the accused, to the effect that certain conduct of the deceased was such as to justify the killing in self-defense, and that such conduct was so .violent as to be accompanied by profanity.
[7, 8] Accurately speaking, however, only the factum of the use of the profanity by the 'deceased at the time that the accused claimed that the deceased made the hip-pocket movement was material in' the case in judgment; since the other alleged profanity was not directed'against the accused and did not influence his conduct as appears from his own testimony. The other testimony for the accused on the subject of the use of profane language by the deceased wa's, indeed, “collateral matter,” and such testimony would, strictly speaking, have been inadmissible had it been objected to by the Commonwealth. But it does not follow that such testimony, erroneously admitted at the instance of the accused, unobjected to by the Commonwealth, cannot be rebutted by the latter. Another principle comes into operation in such case.
In the nature of things, in the progress of trials in the nisi prius courts, it would be too much to expect the judge to be more vigilant than counsel and to unerringly act in admitting testimony to which no objection is interposed. And it is well settled that if, at the instance of one party, evidence has been admitted, unobjected to, which is immaterial and should not have been admitted, “where such action is needed for removing an unfair prejudice which might otherwise ensue from the original evidence,” it is a proper [825]*825exercise of judicial discretion for the trial courts to admit, evidence from the opposing side in rebuttal of the immaterial testimony which has been thus admitted. 1 Wigmore on Ev., sec. 15 (3). In such case, “A party who draws from his own witness irrelevant testimony, which is prejudicial to the opposing party, ought not to be heard to object to its contradiction on the ground of its irrelevancy.” 29 Am. & Eng. Ency. Law, 793-4. See to the same effect Sisler v. Shaffer, 43 W. Va. 769, 770-1, 28 S. E. 721; McIntyre v. White, 124 Ala. 177, 180, 26 So. 987; Grafton Bank v. Woodward, 5 N. H. 301, 309; Fuller v. Valiquette, 70 Vt. 502, 503-4, 41 Atl. 579. This furnishes a, well established exception to the wholesome, and indeed necessary, rule that the time of courts will not be allowed to be occupied in the trial of collateral issues by allowing the introduction of rebuttal testimony thereon.
It is true that the holding in Bowles’ Case, 103 Va. 816, at p. 829, 48 S. E. 527, on the point under consideration (which case is cited and relied on for the accused), is contrary to the conclusion above reached; but that was only one among other grounds on which that case was reversed, and, as appears from the opinion, no authority was cited or before the court to sustain the view of the Commonwealth as to the admissibility of the evidence, and but brief treatment was given the subject in the opinion, so that it is manifest that the court did not feel that it was necessary to, nor did it fully consider it. In view of the authorities above mentioned which were not before the court in the Bowleá Case, we feel constrained to disapprove of the holding of that case on the point we have now under consideration, and such holding is hereby overruled. Our conclusion, therefore, is, that there was no error in the action of the trial court in admitting in rebuttal, as aforesaid, the evidence touching the non-habit of the deceased in the matter of profanity.
[826]*826[9] 4. That the trial court erred, “In refusing instructions number one and two offered by petitioner.”
One of these instructions was to the effect that the deceased officer had no right to arrest Mrs. Rucker without a warrant, unless he had reasonable cause to suspect that a felony had been committed by her, and that the accused had the right, acting in defense of his sister, to resist an unlawful arrest of the latter.
The other instruction was to the effect that it was the duty of the deceased to have taken Mrs. Rucker, after her arrest, before a judicial officer without any unnecessary delay, where she might have obtained bail or have been committed to jail, as the case might be.
The refusal of these instructions was not error for the reason that neither of them were applicable to any material issue in the case. According to the testimony of the accused neither of these matters had any influence whatsoever on his conduct in killing the deceased.
[10] 5. That the court erred in permitting the Commonwealth, over the objection of the petitioner, “to exhibit the clothing of the deceased * * to the jury after the Commonwealth and defendant had closed in chief, without any reason therefor and no claim having been made that any circumstances had been brought about or developed by the evidence which would necessitate the exhibition of the clothing, there being no dispute as to the number of shots fired, or as to the range of the shots in the body of the deceased.”
According to the testimony for the Commonwealth of the undertaker, one or more of three bullets, which entered the body of the deceased, caused his death. A fourth bullet struck the right hand of the deceased, which the accused claimed was reaching for the hip pocket of deceased. The latter bullet “tipped” the end of the middle finger of the right hand and wounded the thumb of that hand of the de[827]*827ceased. Two of the three bullets first mentioned penetrated some parts of the clothing. The undertaker, when on the witness stand in chief, testified in detail about these matters, but he did not have the clothing with him at the time, having it at his place-of business, as he testified. Thereupon, one of the attorneys for the prosecution stated to the court, “I think your honor, we will want the clothing. Mr. Midley” (the witness) “was not summoned or notified to bring it, and it may become necessary to have it, and if so, we will want to offer it in evidence.” The court: “Of course I cannot tell what may develop.”
After this witness left the stand the testimony for the accused and of the accused himself was introduced, to the effect that he was in a certain position when the shots were fired, and that the deceased was ip a certain position, which was different from that indicated by the testimony for the Commonwealth.
The positions of the bullet holes through the clothing, and of the right hip pocket, had a material bearing on the question of whether the accused was' in such a position that he could have seen “The bright metal looking like a pistol right then,” with the right hand of the deceased on it in his hip pocket, etc., etc., as he testified was the situation at the time he commenced shooting, and we find xno error in the action of the trial court in admitting the clothing as rebuttal evidence for the Commonwealth.
[11] 6. The last assignment of error is that the trial court erred, “In refusing to set aside the verdict of the jury and grant the petitioner a new trial because the same is contrary to and not supported by the evidence.”
Of this assignment of error we deem it sufficient to say that we have, under Code 1919, sec. 6363, carefully considered all of the evidence in the case, and upon giving the weight to the decision of the jury upon the matters of fact dependent upon the evidence which is conflicting and which [828]*828involves the credibility of the witnesses (Muse v. Stern, 82 Va. 33, at p. 39, 3 Am. St. Rep. 77), and, along with this, also upon giving due weight to the action of the trial judge in refusing to set aside the verdict (Almond v. Wilson, 75 Va., at p. 626, to cite only two of the many cases bearing on the subject), we are of opinion that it does not appear from the evidence that the judgment under review is plainly wrong, or without evidence to support it, and hence such judgment will be affirmed.
Affirmed.