Gladney v. State

• Decision Date: 01 March 1932
• Docket Number: 8 Div. 557.
• Citation: 140 So. 176,25 Ala.App. 25
• Parties: GLADNEY v. STATE.
• Court: Alabama Court of Appeals

140 So. 176

25 Ala.App. 25

GLADNEY v. STATE.

8 Div. 557.

Court of Appeals of Alabama

March 1, 1932

Appeal from Circuit Court, Colbert County; J. F. Johnson, Jr. Judge.

Jack Gladney was convicted of using abusive, insulting, or obscene language in the presence of a woman, and he appeals.

Reversed and remanded.

Henry D. Jones, of Russellville, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

SAMFORD J.

This cause was tried in the circuit court before the judge sitting without a jury. There were several exceptions reserved by defendant on the admission of testimony. For instance, the state was permitted to prove, over objection and exception by defendant, that at the time the alleged insulting language was used the prosecuting witness was pregnant, and further that, after the alleged insulting language, Mrs. Narmore, a sister of prosecutrix, was sent for by prosecutrix, and, when Mrs. Narmore came, prosecutrix was sitting in a swing on the front porch crying and prosecutrix told then and there what had happened.

The pregnancy of the prosecutrix was irrelevant and incompetent evidence, and related in no way to the alleged insult, and what transpired between prosecutrix and her sister some time after the alleged insult was not a part of the res gestæ, nor could the testimony be used to "bolster up" the testimony of prosecutrix. The only effect of this testimony was to prejudice the defendant's cause in the mind of the court who was to pass upon the facts.

There has been a line of decisions, notably Holmes v. State, 108 Ala. 24, 18 So. 529; International Agr. Corp. v. So. R. Co., 188 Ala. 354, 66 So. 14; McSwean v. McSwean, 204 Ala. 663, 86 So. 646; State v. Ala. Land & Min. Co., 210 Ala. 162, 97 So. 539; Copeland v. Warren, 214 Ala. 150, 107 So. 94; Pensacola, St. A. & G. S. S. Co. v. Brooks, 14 Ala. App. 364, 70 So. 968, and many others, holding that, where the trial was had by the court without a jury, and there is sufficient evidence to support a judgment, the same will not be reversed on appeal because of the admission of illegal testimony; that in such cases the appellate court will conclusively presume that the judgment was based upon sufficient legal evidence.

A different rule from the above was announced in First National Bank, etc., v. Chaffin et al., 118 Ala. 246, 24 So. 80, in which case many former decisions were either...