Burdett v. Hipp, 6 Div. 766.

• Court: Supreme Court of Alabama
• Writing for the Court: LAWSON, Justice.
• Citation: 39 So.2d 389,252 Ala. 37
• Parties: BURDETT v. HIPP.
• Docket Number: 6 Div. 766.
• Decision Date: 17 March 1949

39 So.2d 389

252 Ala. 37

BURDETT
v.
HIPP.

6 Div. 766.

Supreme Court of Alabama

March 17, 1949

[39 So.2d 390]

P. A. Nash and L. P. Waid, Jr., both of Oneonta, for appellant.

J. T. Johnson, of Oneonta, for appellee.

[252 Ala. 38] LAWSON, Justice.

This is an action for assault and battery alleged to have been committed by the defendant, Hipp, on the plaintiff, Burdett. There was a verdict in favor of defendant. Judgment was in accord with the verdict. Plaintiff's motion for new trial having been overruled, he has appealed to this court.

The cause went to the jury on two counts of the complaint and the defendant's plea of the general issue. It is undisputed in the evidence that plaintiff received a knife wound during the afternoon of September 30, 1945. Plaintiff testified that he was cut by defendant during an argument growing out of a poker game in which he, the defendant, and several others were engaged. Defendant denied that he inflicted the injury and gave testimony tending to show that plaintiff accidentally cut himself when he fell on his open knife while pursuing one Aldridge, who had fled from the poker game with plaintiff's money. In this defendant was corroborated by the testimony of several other persons who had been in the poker game. There is evidence to the effect that plaintiff, defendant, and the others who were in the game had been drinking.

A physician who attended plaintiff testified in detail as to the nature, location, and appearance of the cut on plaintiff's body. Plaintiff was permitted to exhibit the place of injury to the jury. It is without dispute that plaintiff was cut or stabbed by a sharp instrument on his left side just below his ribs. The end of the lower rib was severed. The wound was about an inch and a half long and penetrated to the stomach and intestines. An operation was performed.

The trial court refused to permit plaintiff to introduce underwear, a shirt, and a pair of overalls which were identified as having been worn by him at the time he was injured. Of necessity these articles of clothing were cut. This fact seems to be admitted in brief of counsel for appellee. Appellant insists that this action of the court requires a reversal of this case.

It is well established that clothing is admissible if it tends to elucidate the transaction, to identify any of the parties, to connect the accused with the crime, to show the character of the wound, or to show motive or intent. If it tends to corroborate or disprove, illustrate or elucidate any other evidence, it is admissible, though it may have a tendency to bias or prejudice the jury, and to elicit their sympathy for, or animosity toward, either the deceased or the accused. Northern Ala. Ry. Co. v. Mansell, Adm'r, 138 Ala. 548, 36 So. 459; Rollings v. State, 160 Ala. 82, 49 So. 329; Husch v. State, 211 Ala. 274, 100 So. 321; Hyche v. State, 217 Ala. 114, 114 So. 906; Shamberger v. State, 221 Ala. 538, 130 So. 70; Gholston v. State, 221 Ala. 556, 130 So. 69; Weems v. State, 222 Ala. 346, 132 So. 711; Walker v. State, 223 Ala. 294, 135 So. 438; Peters v. State, 240 Ala. 531, 200 So. 404; Floyd v. State, 245 Ala. 646, 18 So.2d 392; Smith v. State, 248 Ala. 363, 27 So.2d 495; Phillips v. State, 248 Ala. 510, 28 So.2d 542. [39 So.2d 391]

It is now settled by our cases that it is not reversible error to admit clothing which sheds light on some material issue, although it is in the nature of cumulative evidence. Hyche v. State, supra; Weems v. State, supra; Smith v. State, supra; Stallings v. State, 249 Ala. 1, 32 So.2d 233. The cases of Louisville & N. R. R. Co. v. Pearson, 97 Ala. 211, 12 So. 176; Alabama Great Southern R. Co. v. Bell, 200 Ala. 562, 76 So. 920; and Boyette v. State, 215 Ala. 472, 110 So. 812, have been construed as not holding to the contrary. Terry v. State, 203 Ala. 99, 82 So. 113; Hyche v. State, supra; Weems v....