117 So. 153 | Ala. Ct. App. | 1928
Lead Opinion
The only question of merit appearing in this record is the action of the court in overruling defendant's motion for a new trial upon the ground that the bloody clothes worn by the party assaulted at the time of the assault were introduced in evidence and permitted to remain before the jury during the trial. It is insisted that these bloody clothes were but the presentation of an unsightly spectacle calculated to prejudice the jury. This insistence finds some semblance of support in Boyette v. State,
We think the law is correctly stated in Hyche v. State, ante, p. 176,
Let the judgment be affirmed.
Affirmed.
Dissenting Opinion
The foregoing opinion is in direct conflict with the decision in Boyette v. State,
The undisputed evidence in this case shows conclusively that the injury complained of was inflicted upon the head of the alleged injured party, that a scalp wound only was inflicted, and that no part of the clothing worn by the alleged injured party at the time of the injury was perforated or punctured, or otherwise injured, except by the blood from the wound. The opinion of the majority expressly so states, and this brings the facts of the case in the same category as the facts of the Boyette Case, supra. If this case is ultimately affirmed, it will result in the necessity of overruling the innumerable decisions of this and the Supreme Court. The court's ruling below, on the question involved, was in direct conflict with the many decisions hereinabove cited.
In my opinion, the court erred in overruling the application for rehearing.
Addendum
Rehearing denied.