Whittle, J.,
delivered the opinion of the court.
Stancil Williams was indicted for the murder of his wife, Cora Lee Williams, tried by a jury and convicted. His punishment was fixed at death in the electric chair. The court approved the verdict of the jury and sentenced the accused to be put to death by electrocution. The judgment of the court is the subject of this writ of error.
The material facts show that on the night of December 3, 1960, Cora Lee Williams left her home in Norfolk county in the company [838]*838of one Eugene Ross, and drove to her sister’s home to visit her father. She returned between 10:15 p.m. and 12:30 a.m. At some time between her return home and 1:15 a.m. (the time of the arrival of the State Police) Williams assaulted his wife with an axe, from which attack she died on the morning of December 4, 1960.
It is disclosed that Williams was 56 years of age and weighed 207 pounds. His wife was 43 years of age and weighed 125 pounds. The assault took place in the presence of the children of the parties, and was committed with such savagery that bones were broken throughout the victim’s body. The medical evidence discloses that death was due to the multiple injuries received.
Ivory Williams, an eleven-year-old son, testified to the brutal assault made by his father upon his mother with the axe.
State Trooper Almond testified that he and Trooper Marr had been called to the Williams residence; that they arrived there at approximately 1:15 on the morning of December 4, where they found a quantity of blood over the floor and the accused and his wife in bed, “his wife was on the left hand side and he was on the right side, laying on her right arm and leg;” that an ambulance was called and the wife was taken to the Community Hospital where she died soon thereafter.
The trooper said that the accused admitted that he had had a fight with his wife and had hit her with the axe; that after he was advised of his rights Williams gave him a signed statement in which he admitted that the argument started over his wife going out with Eugene Ross and that he knocked her down “and struck her three or four times with the blunt end of the axe.”
Williams took the stand in his own behalf and more or less reiterated what he had said in his signed statement. On direct examination he concluded, “me and her were fighting and got down in the floor and that is when I picked up the axe and hit her two or three times with the axe. We were scrambling in the floor 15 or 20 minutes.”
It is obvious from the medical testimony and the testimony of Ivory Williams that the wife was struck more than “two or three times”, as her head was crushed and legs and arms broken by the blows.
On cross-examination the court permitted the Commonwealth’s attorney, over the vigorous objection of counsel for the accused, to examine him regarding a previous attack upon his wife and his conviction for such attack.
While several assignments of error were recorded, the only one treated in the brief of the accused and in argument before us was— [839]*839did the trial court err in allowing the accused to be cross-examined regarding the previous attack upon his wife and his conviction for a felony.
The record discloses that prior to the trial and out of the presence of the jury, the court; Mr. Axson, Commonwealth’s attorney; Mr. Oast, attorney for the accused; and the accused, appeared in chambers where the following took place:
“Mr. Axson: Your Honor, this is in the nature of a pretrial conference. I plan to put on evidence to show the defendant attacked the deceased on two other occasions and that he was convicted of assault. My purpose for putting this in is not for the purpose of convicting him in this case but to show on two other occasions he attacked this woman with the same instrument he had in this instance.
“Mr. Oast: We are going to object to that. We don’t know when it was. If it is true she was attacked, if there be such cases, such attempts to kill her, she went back to him and they lived together and were living together at the time of this.
“The Court: Has the Rasnake case [Rasnake v. Commonwealth, 135 Va. 677, 115 S. E. 543] ever been overruled?
“Mr. Axson: No, sir. The court held it was admissible to show the attitude of the accused. * * * What I want to show is that his motive for killing her was because she had been out and came in later than he expected, and that he attacked her a couple of times with an axe before. I want to show he had previously struck her with an axe and was convicted in this Court, but given probation, and after he got probation he violated it by doing the same thing with an axe. His sentence was revoked, and when he got out of the penitentiary he came back and killed her.
“Mr. Oast: He was indicted for maiming and she went back and they lived together and were living together at the time of this. She could have divorced him or left him. You can have malice in a split second. I think the primary purpose in getting this in is to inflame the jury.
“Mr. Axson: On one occasion he beat her with a stove poker.
“The Court: How long had he been back from the penitentiary?
“Mr. Axson [addressing the accused]: When did you get out of the penitentiary?
“The Defendant: The 27th day of August, 1959.
# * *
“The Court: We will pass on that [evidence] as it comes up.”
[840]*840In the course of the trial, on cross-examination, the Commonwealth’s attorney asked the accused:
“Q. You had beaten her before, hadn’t you?
“Mr. Oast: I object to that.
“Mr. Axson: I can show intent.
“The Court: The defendant has testified that the reason for his committing this assault which resulted in her death was the fact that she went out that night. I think the Commonwealth has a right to show other instances in order to show intent, and that he beat her on this occasion.
“Mr. Oast: We object and save the point.
“Mr. Axson: You had beaten her before this?
“Mr. Oast: We object.
“The Court: I overrule the objection.
“Mr. Oast: I save the point.
“By Mr. Axson:
“Q. You had beaten her before?
“A. Yes, sir.
“Q. Have you ever been convicted of a felony?
“A. Yes.”
The record discloses that at no time had the accused put his character in issue. We hold that the admission of this evidence of a prior beating was error and was highly prejudicial. There was no evidence as to when the prior beating occurred, or why or how it was done. The purpose of introducing it was to persuade the jury that the beating for which the accused was being tried was a deliberate and premeditated killing, and hence murder in the first degree.
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Whittle, J.,
delivered the opinion of the court.
Stancil Williams was indicted for the murder of his wife, Cora Lee Williams, tried by a jury and convicted. His punishment was fixed at death in the electric chair. The court approved the verdict of the jury and sentenced the accused to be put to death by electrocution. The judgment of the court is the subject of this writ of error.
The material facts show that on the night of December 3, 1960, Cora Lee Williams left her home in Norfolk county in the company [838]*838of one Eugene Ross, and drove to her sister’s home to visit her father. She returned between 10:15 p.m. and 12:30 a.m. At some time between her return home and 1:15 a.m. (the time of the arrival of the State Police) Williams assaulted his wife with an axe, from which attack she died on the morning of December 4, 1960.
It is disclosed that Williams was 56 years of age and weighed 207 pounds. His wife was 43 years of age and weighed 125 pounds. The assault took place in the presence of the children of the parties, and was committed with such savagery that bones were broken throughout the victim’s body. The medical evidence discloses that death was due to the multiple injuries received.
Ivory Williams, an eleven-year-old son, testified to the brutal assault made by his father upon his mother with the axe.
State Trooper Almond testified that he and Trooper Marr had been called to the Williams residence; that they arrived there at approximately 1:15 on the morning of December 4, where they found a quantity of blood over the floor and the accused and his wife in bed, “his wife was on the left hand side and he was on the right side, laying on her right arm and leg;” that an ambulance was called and the wife was taken to the Community Hospital where she died soon thereafter.
The trooper said that the accused admitted that he had had a fight with his wife and had hit her with the axe; that after he was advised of his rights Williams gave him a signed statement in which he admitted that the argument started over his wife going out with Eugene Ross and that he knocked her down “and struck her three or four times with the blunt end of the axe.”
Williams took the stand in his own behalf and more or less reiterated what he had said in his signed statement. On direct examination he concluded, “me and her were fighting and got down in the floor and that is when I picked up the axe and hit her two or three times with the axe. We were scrambling in the floor 15 or 20 minutes.”
It is obvious from the medical testimony and the testimony of Ivory Williams that the wife was struck more than “two or three times”, as her head was crushed and legs and arms broken by the blows.
On cross-examination the court permitted the Commonwealth’s attorney, over the vigorous objection of counsel for the accused, to examine him regarding a previous attack upon his wife and his conviction for such attack.
While several assignments of error were recorded, the only one treated in the brief of the accused and in argument before us was— [839]*839did the trial court err in allowing the accused to be cross-examined regarding the previous attack upon his wife and his conviction for a felony.
The record discloses that prior to the trial and out of the presence of the jury, the court; Mr. Axson, Commonwealth’s attorney; Mr. Oast, attorney for the accused; and the accused, appeared in chambers where the following took place:
“Mr. Axson: Your Honor, this is in the nature of a pretrial conference. I plan to put on evidence to show the defendant attacked the deceased on two other occasions and that he was convicted of assault. My purpose for putting this in is not for the purpose of convicting him in this case but to show on two other occasions he attacked this woman with the same instrument he had in this instance.
“Mr. Oast: We are going to object to that. We don’t know when it was. If it is true she was attacked, if there be such cases, such attempts to kill her, she went back to him and they lived together and were living together at the time of this.
“The Court: Has the Rasnake case [Rasnake v. Commonwealth, 135 Va. 677, 115 S. E. 543] ever been overruled?
“Mr. Axson: No, sir. The court held it was admissible to show the attitude of the accused. * * * What I want to show is that his motive for killing her was because she had been out and came in later than he expected, and that he attacked her a couple of times with an axe before. I want to show he had previously struck her with an axe and was convicted in this Court, but given probation, and after he got probation he violated it by doing the same thing with an axe. His sentence was revoked, and when he got out of the penitentiary he came back and killed her.
“Mr. Oast: He was indicted for maiming and she went back and they lived together and were living together at the time of this. She could have divorced him or left him. You can have malice in a split second. I think the primary purpose in getting this in is to inflame the jury.
“Mr. Axson: On one occasion he beat her with a stove poker.
“The Court: How long had he been back from the penitentiary?
“Mr. Axson [addressing the accused]: When did you get out of the penitentiary?
“The Defendant: The 27th day of August, 1959.
# * *
“The Court: We will pass on that [evidence] as it comes up.”
[840]*840In the course of the trial, on cross-examination, the Commonwealth’s attorney asked the accused:
“Q. You had beaten her before, hadn’t you?
“Mr. Oast: I object to that.
“Mr. Axson: I can show intent.
“The Court: The defendant has testified that the reason for his committing this assault which resulted in her death was the fact that she went out that night. I think the Commonwealth has a right to show other instances in order to show intent, and that he beat her on this occasion.
“Mr. Oast: We object and save the point.
“Mr. Axson: You had beaten her before this?
“Mr. Oast: We object.
“The Court: I overrule the objection.
“Mr. Oast: I save the point.
“By Mr. Axson:
“Q. You had beaten her before?
“A. Yes, sir.
“Q. Have you ever been convicted of a felony?
“A. Yes.”
The record discloses that at no time had the accused put his character in issue. We hold that the admission of this evidence of a prior beating was error and was highly prejudicial. There was no evidence as to when the prior beating occurred, or why or how it was done. The purpose of introducing it was to persuade the jury that the beating for which the accused was being tried was a deliberate and premeditated killing, and hence murder in the first degree. The fact that he had beaten her at some pervious time without any evidence as to the circumstances or the character or effect of it, furnishes no proof that he willfully, deliberately and premediatedly killed her on this occasion. The only purpose it could serve, and the only effect it would have, was to prejudice the accused in the minds of the jury. The Commonwealth’s attorney’s statement in chambers indicated that the accused was punished for the prior beating. If so, it should not serve as a basis for additional punishment in this case.
A reading of the Rasnake case relied upon shows that it has no application here. In the instant case the accused was on trial, for murder. He had unmercifully assaulted has wife, inflicting wounds over her body by the use of a deadly weapon from which intent to kill could be presumed.
It is a well established common law rule that in a criminal prosecu[841]*841tion, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged. In other words, 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. Ordinarily such proof does not reflect any light upon the special crime with which the accused stands charged. 20 Am.Jur., Evidence, § 309, page 287 ff.
The tendency of such evidence to inflame and prejudice the jury outweighs its evidentiary value. The accused is entitled to be tried on the accusation made in the indictment pending against him and not on some collateral charge which is not in issue and which he is not prepared to answer. This is no mere technical rule of law. It arises out of a fundamental demand for justice and fairness. 22A C.J.S., Criminal Law, § 682, page 729 ff.
Such has always been the rule in Virginia. 7 Mich. Jur., Evidence, § 48, page 390 ff.; Barber v. Commonwealth, 182 Va. 858, 866, 30 S. E. 2d 565, 569; Zirkle v. Commonwealth, 189 Va. 862, 874, 55 S. E. 2d 24, 31, (and cases and authorities there cited).
In Day v. Commonwealth, 196 Va. 907, 914, 86 S. E. 2d 23, 26, a conviction for rape was reversed because of the admission of evidence of a prior offense for the purpose of showing the accused’s state of mind to molest women. There it was said:
“The accepted rule to be derived from the cases is that evidence which shows or tends to show the accused guilty of the commission of other offenses at other times is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit' an offense similar to that charged; but if such evidence tends to prove any •other relevant fact of the offense charged, and is otherwise admissible, it will not be excluded merely because it also shows him to have been guilty of another crime.”
While there are limited exceptions to the general rule as pointed out by Chief Justice Eggleston in McWhorter v. Commonwealth, 191 Va. 857, 870, 63 S. E. 2d 20, 26, no such exceptions are here involved. Fleenor v. Commonwealth, 200 Va. 270, 274, 275, 105 S. E. 2d 160, 163. See also Roy v. Commonwealth, 191 Va. 722, 726, 62 S. E. 2d 902, 903.
r ' .Here the defendant did not. deny that he killed his wife-by hitting her with. an axe-.. That, fact was not in issue. :The only issue in the [842]*842case was whether he acted willfully, deliberately and with premeditation. Evidence that he had previously beaten her, without more, did not tend to establish that he deliberately and premeditatedly killed her on this occasion.
“The intent with which an act is done, is to be known from the circumstances which precede, accompany, or follow, the act: that intent may be generally ascertained with great correctness, from the conduct of the prisoner on the particular occasion, and from the circumstances connected with the act proved to have been committed. This is the legitimate source from which to draw information of the quo animo. * * Walker v. The Commonwealth, 1 Leigh (28 Va.) 574, 577.
For the reasons stated the judgment is reversed, the verdict of the jury set aside, and the case remanded for a new trial.
Reversed and remanded.
Spratley and I’Anson, JJ., concurring.
Eggleston, C. J., Snead and Carrico, JJ., dissenting.