Gladden v. State, 7 Div. 565.

• Decision Date: 18 February 1930
• Docket Number: 7 Div. 565.
• Citation: 23 Ala.App. 416,125 So. 398
• Parties: GLADDEN v. STATE.
• Court: Alabama Court of Appeals

125 So. 398

23 Ala.App. 416

GLADDEN v. STATE.

7 Div. 565.

Court of Appeals of Alabama

February 18, 1930

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

William Cicero, alias Be, Gladden was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

E. O McCord & Son, of Gadsden, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

The indictment charged this appellant with murder in the first degree; that is to say, that he unlawfully and with malice aforethought killed Euna Gladden (his wife) by shooting her with a gun or pistol.

The record proper appears regular, and no question is presented in this connection.

Many points of decision are presented based upon rulings of the court upon the trial, which resulted in the conviction of the accused for murder in the second degree and the sentence of ten years' imprisonment in the penitentiary.

On the trial it was disclosed without dispute that the said Euna Gladden died as a result of a pistol shot wound in her left breast which penetrated her body; the bullet also passing through the bed clothing and two mattresses on the bed, upon which her body was found lying. The bullet struck the floor and made an indentation therein, and also struck the wall of the house. This bullet was found upon the floor in the room.

The death of the deceased woman occurred on October 18, 1926. The indictment was not returned, however, until the October 1928, term of the circuit court, about two years thereafter.

The real issue upon this trial was whether the woman committed suicide, as contended by the defendant; or did he kill her as insisted by the state.

The record is voluminous as a result of the vast amount of testimony taken upon the trial. Innumerable exceptions were reserved. We have carefully studied the entire record, and have given thoughtful and attentive consideration thereto and to the points of decision presented. So far as we have been able to ascertain, the only testimony adduced upon this trial of an incriminating nature and tending to connect this appellant with the death of his wife, was that given by the witness Birdie Davis, and her husband, Russell Davis, both of whom were in jail charged with the commission of this same offense at the time of making the statements, to the officers, which tended to incriminate this appellant. The record shows that a short time after these parties made the statements they were both liberated from prison. These two witnesses were shown by the undisputed evidence to be of very bad character, and numerous witnesses, including the grandmother and grandfather of the woman, Birdie Davis, testified that she and her husband both were unworthy of belief in a court of justice. The evidence also showed without dispute that the witness, Russell Davis, had formerly been convicted of crime involving moral turpitude. The manifest unworthiness and the impeachment of these two witnesses thus shown, and by other evidence of like import, does not, under the rules of evidence, vitiate, nullify, or render incompetent the testimony given by them upon the trial. Under the rule of evidence, the weight or probative force of the testimony of all witnesses is for the jury, and in all cases it is for the jury to determine, in view of all the evidence, how far, if at all, the witnesses may be credited.

In the absence of the testimony of the two witnesses, Birdie Davis and her husband, Russell Davis, there was no evidence showing or tending to show the corpus delicti, or from which it might be inferred. To the contrary, the other evidence as a whole coupled with the physical facts, tended strongly to show that the unfortunate deceased, Euna Gladden, died by her own hand; that is to say, that she committed suicide as insisted by appellant. These two witnesses testified that about two months before Euna Gladden was killed this defendant stated in their presence at their home that he was going to kill her, and on the night before the killing made a similar statement. They stated that upon each occasion Tim Gladden was also present when the threats were uttered. The defendant and Tim Gladden both strenuously denied such threats were made and their testimony was in direct conflict with that given by the Davis woman and her husband. The exceptions reserved to the court's rulings in permitting this testimony are not well taken. As stated, this conflicting evidence was for the jury, and the court properly so held. The Davis woman also testified that during the month of June, preceding the trial, or about eighteen months after the death of his wife, this defendant confessed to her that he did kill his wife, and in this connection she testified he stated "that he was standing in a little hall and she was standing up when he shot her, that he shot her right in the breast, etc." Appellant denied that he made the alleged...