(specially concurring; concurring in result).
In my opinion, the State’s Attorney went too far; he improperly couched the question.
However, our analysis cannot end at that point. Rather, this Court must consider these facts established by the State:
1. Photographs of the victim’s injuries taken at the hospital (gruesome);
2. Testimony of officer Jerry Big Eagle and a technician by the name of Kennedy, both depicting serious bodily injury (blood all over face from bites and an ear lobe bitten off by appellant);
3. Preliminary hearing testimony of the victim (received properly as she fled the jurisdiction of the court to prevent testifying during the trial);
4. Evidence testified to by the medical doctor who examined victim at the hospital (and who expressed, inter alia, that victim’s injuries were threatening to the health of victim because of potential infection).
Thus, although State’s Attorney’s questioning was couched in the words of the statute, evidence coming from the mouth of Dr. Maningas was not the only evidence in the record to establish a serious bodily injury. This jury could determine, from the pictures alone, received in evidence, that an ear lobe had been bitten off. Therefore, as described above, the jury verdict was supported by the evidence. Where inadmissible evidence admitted at trial is cumulative (Dr. Maningas’), and other admissible evidence supports the jury's verdict or a judge’s findings, the cumulative evidence, though inadmissible, is nonprejudicial. See, State v. Tribitt, 327 N.W.2d 132 (S.D.1982), written by this special writer, on behalf of this Court some 10 years ago. Very recently, we reiterated this holding in State v. Brown, 480 N.W.2d 761 (S.D.1992). Said another way, Dr. Maningas’ testimony was not the only testimo*106ny which convicted Lybarger. A jury is entitled to accept one witness’ version of the facts and reject another’s. State v. Shank, 88 S.D. 645, 226 N.W.2d 384 (1975). Thus, the expert’s witness could be rejected by the jury. Black letter law would signify that the credibility of witnesses and weight to be accorded their testimony and weight of the evidence is for the jury. McMullen v. State, 84 S.D. 538, 173 N.W.2d 499 (1970). Manifestly, there was evidence to sustain a burden of proof that the victim sustained a serious bodily injury.
If the intent of footnote 3 in the majority opinion is to express that Burtzlaff held: “The ultimate issue is no longer of any value and should be abandoned,” it behooves me to correct such an observation. Two Justices joined the majority opinion which did not so hold. Rather, Justice Wuest expounded, at 19-22 of the slip opinion, on the Federal Rule, which was agreed to by Chief Justice Miller. My concurrence in this case is based upon settled law of this state that (1) Dr. Maningas’ conclusion, although inadmissible, was cumulative evidence and, as such, was nonprejudicial (2) the jury, by overwhelming evidence aside from his opinion, could find Lybarger guilty beyond a reasonable doubt. Exhibits and photographs, plus testimony of the on-scene officers, who observed a profusely bleeding ear, without ear lobe, dramatically depicts a serious bodily injury. In South Dakota jury trials, it is a common place instruction given unto jurors to draw upon their experience in life and as sensible men and women — arrive at a fair verdict. This was a fair verdict. Jury Instruction No. 35 provided: “Consider this case carefully and honestly with due regard for the interests of society and the rights of the defendant.” (Emphasis supplied mine). Obviously, the jury did consider the interests of society by rendering a verdict decrying the savagery of this assault. We, in the judiciary, cannot, in one breath, ask a jury to consider the interests of society, permitting it to exercise its sworn duty, and then disregard its deliberation rendering its verdict to a state of impotence. As I view justice here, to hold that biting off an ear lobe is not a serious bodily injury, concomitant with a savage attack upon the face of this woman, would be a miscarriage of justice. To hold otherwise, is an effrontery to common sense.