It is only when the introduction of garments or other demonstrative evidence would tend to corroborate or elucidate no material inquiry that such articles have been ruled inadmissible and declared prejudicially erroneous if tending to inflame the jury. Boyette v. State, 215 Ala. 472, 110 So. 812; Moore v. State, 30 Ala. App. 552, 557(10), 9 So.2d 146, and cases cited; Kabase v. State, 31 Ala. App. 77, 12 So.2d 758. If, however, it conduces to the proof of some pertinent hypothesis, which if sustained would bear probatively on an issue on trial, such evidence is admissible. 6 Ala.Dig., Criminal Law, 404(4); Rollings v. State, 160 Ala. 82, 49 So. 329.
McKee v. State, 33 Ala. App. 171, 31 So.2d 656; Id., 249 Ala. 433, 31 So.2d 662; Boyette v. State, 215 Ala. 472, 110 So. 812; Grissett v. State, 241 Ala. 343, 2 So.2d 399; Crenshaw v. State, 207 Ala. 438, 93 So. 465. Argument of the solicitor that "he wants to change his color and love somebody else" constituted prejudicial error as creating an atmosphere of bias and prejudice which no remarks by trial court could eradicate. Blue v. State, 246 Ala. 73, 19 So.2d 11; Moore v. State, 30 Ala. App. 552, 9 So.2d 146; Pointer v. State, 24 Ala. App. 23, 129 So. 787; Taylor v. State, 22 Ala. App. 428, 116 So. 415. Richmond M. Flowers, Atty. Gen., and Joe Breck Gantt, Asst. Atty. Gen., for the State.
Mitchell v. State, 15 Ala. App. 109, 72 So. 507; Dabbs v. State, 20 Ala. App. 638, 104 So. 684. The appellate court judicially knows, from its own records, that the boundary line between Calhoun and Cherokee counties does not pass through Section 26, township 12, Range 10, as testified by State witnesses. Ullman Bros. v. State, 16 Ala. App. 526, 79 So. 625; Lovejoy v. State, 32 Ala. App. 110, 22 So.2d 532; Ex parte Burns, 247 Ala. 98, 22 So.2d 517. Improper argument of the Solicitor created an atmosphere of prejudice against defendant which, was not eradicated by instructions of the court. Pointer v. State, 24 Ala. App. 23, 129 So. 787, 788; Moore v. State, 30 Ala. App. 552, 9 So.2d 146. Where preponderance of evidence is against the verdict a new trial should be granted. Taylor v. State, 30 Ala. App. 316, 5 So.2d 117; Coffey v. State, 31 Ala. App. 120, 12 So.2d 863. A.A. Carmichael, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
They were therefore material and relevant evidence in this cause. Moore v. State, 30 Ala. App. 552, 9 So.2d 146; Allford v. State, 31 Ala. App. 62, 12 So.2d 404; Hicks v. State, 247 Ala. 439, 25 So.2d 139. During the examination of the witness Cornelius he testified that he had bought some whiskey from the appellant while he visited there on the night of the affray.
" Of course, unless the shoes tended to shed some light upon the inquiry at issue, they were inadmissible. Husch v. State, 211 Ala. 274, 100 So. 321; Moore v. State, Ala.App., 9 So.2d 146; Sikes v. State, 22 Ala. App. 33, 111 So. 760; Boyette v. State, 215 Ala. 472, 110 So. 812; Hyche v. State, 22 Ala. App. 176, 113 So. 644. It was not shown that the heels of the shoes were lost or kicked off in her alleged struggle with Ellis, nor, so far as appears from record, were the heels found at the scene, nor was it made to appear that the shoes were in any way otherwise damaged, and, under the rule of the foregoing cases, without some showing of relevancy, this evidence was improper. But we perceive a graver injury to the defendant than this.
The State's evidence, on the contrary, supported the contention of the prosecutrix that she was forcibly ravished by the defendant after struggling with him for a considerable period of time. The clothes she wore — of course admissible, as they had a tendency to illustrate what she claimed occurred, Moore v. State, Ala.App., 9 So.2d 146, 150, — strongly corroborated her contention. They were muddy, generally disheveled, some articles were torn, and one contained blood stains.
Bradberry v. State, 37 Ala. App. 327, 67 So.2d 561; Miller v. State, 40 Ala. App. 533, 119 So.2d 197, Id. 270 Ala. 739, 119 So.2d 201. Improper and prejudicial argument by the State's counsel impairs the fair and impartial trial guaranteed to every defendant and this argument should be considered in its cumulative aspect in determining error. Hammonds v. State, 49 Ala. App. 211, 269 So.2d 924; Blue v. State, 246 Ala. 73, 19 So.2d 11; Pointer v. State, 24 Ala. App. 23, 129 So. 787; Moore v. State, 30 Ala. App. 552, 9 So.2d 146; Early v. State, 42 Ala. App. 200, 158 So.2d 495. A substantial and material variance between allegata and probata cannot sustain a conviction. Owens v. State, 46 Ala. App. 591, 246 So.2d 478; Wideman v. State, 269 Ala. 49, 111 So.2d 298.
Boswell v. State, 63 Ala. 307; Perkins v. State, 50 Ala. 154; Ridgeway v. Sullivan-Long Hagerty, Inc., 39 Ala. App. 341, 98 So.2d 665; Peters v. State, 240 Ala. 531, 200 So. 404; Leach v. State, 24 Ala. App. 423, 136 So. 493. The clothes worn by defendant at the time of the alleged crime should not be received in evidence in a rape prosecution where they shed no light upon any material inquiry in the case. Boyette v. State, 215 Ala. 472, 110 So. 812; Moore v. State, 30 Ala. App. 552, 9 So.2d 146; Kabase v. State, 31 Ala. App. 77, 12 So.2d 758; Id., 244 Ala. 182, 12 So.2d 766; Langley v. State, 32 Ala. App. 163, 22 So.2d 920; Taylor v. State, 249 Ala. 130, 30 So.2d 256. Where a defendant pleads insanity overruling objections to the Solicitor's argument pertaining to the result of sending accused to an insane asylum and suggesting the possibility of release is error. Boyle v. State, 229 Ala. 212, 154 So. 575. The trial court may not charge upon the effect of the testimony, unless required to do so by one of the parties.
Code 1940, Tit. 7, § 433; Wigmore on Evidence (3d Ed.) 499, § 949; Green v. State, 258 Ala. 471, 64 So.2d 84; Peinhardt v. State, 262 Ala. 10, 76 So.2d 179; Beverly v. State, 27 Ala. App. 374, 173 So. 397; Shores v. State, 25 Ala. App. 351, 146 So. 537. Inflammatory and prejudicial argument of the solicitor warranted the granting of defendant's motion for a mistrial. 7 Ala. Dig., Crim.Law, 919(3); 6 A Ala.Dig., Crim.Law, 730(14); Moore v. State, 30 Ala. App. 552, 9 So.2d 146; McGrew v. State, 21 Ala. App. 266, 107 So. 328; Glass v. State, 147 Ala. 50, 41 So. 727; Blue v. State, 246 Ala. 73, 19 So.2d 11; Du Bose v. State, 148 Ala. 560, 42 So. 862; Mitchell v. State, 28 Ala. App. 119, 180 So. 119. John Patterson, Atty. Gen., Bernard F. Sykes and Jas. W. Webb, Asst. Attys. Gen., for the State.
Code 1940, Tit. 15, § 382 (10); Scott v. State, 249 Ala. 304, 30 So.2d 689; Alberson v. State, 254 Ala. 87, 47 So.2d 182; Broadway v. State, 257 Ala. 414, 60 So.2d 701; Jackson v. State, 260 Ala. 641, 71 So.2d 825. The Solicitor's questions and remarks made during cross-examination of defendant were highly prejudicial and calculated to bias and prejudice the jury. Gibson v. State, 193 Ala. 12, 69 So. 533; Pointer v. State, 24 Ala. App. 23, 129 So. 787; Blue v. State, 246 Ala. 73, 19 So.2d 11; Moore v. State, 30 Ala. App. 552, 9 So.2d 146; Kabase v. State, 31 Ala. App. 77, 12 So.2d 758; Id., 244 Ala. 182, 12 So.2d 766. John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the State.