Gantt v. Columbia Coca-Cola Bottling Co.

• Decision Date: 14 March 1944
• Docket Number: 15633.
• Citation: 29 S.E.2d 488,204 S.C. 374
• Parties: GANTT v. COLUMBIA COCA-COLA BOTTLING CO.
• Court: South Carolina Supreme Court

29 S.E.2d 488

204 S.C. 374

GANTT v. COLUMBIA COCA-COLA BOTTLING CO.

No. 15633.

Supreme Court of South Carolina

March 14, 1944

George Bell Timmerman, Jr., of Lexington and C. T. Graydon and F Ehrlich Thomson, both of Columbia, for appellant.

Thomas Cain & Black and Herbert & Dial, all of Columbia, for respondent.

OXNER Justice.

Plaintiff instituted this action to recover damages alleged to have been sustained as a result of drinking a bottle of coca cola which he claims contained bluestone. The first trial resulted in a verdict for plaintiff in the sum of $2000. Defendant appealed and the judgment was reversed on account of error in the exclusion of certain testimony offered by the defendant. 193 S.C. 51, 7 S.E.2d 641, 127 A.L.R. 1185. The case was tried again and resulted in a verdict for plaintiff in the sum of $300. Plaintiff has appealed and the case is before this Court for the second time. The sole question raised in this appeal is the admissibility of certain testimony offered by defendant to show that the plaintiff pleaded guilty in the United States District Court at Columbia, S. C., to violation of the Internal Revenue Law relating to distilling whiskey with intent to defraud the United States of the tax imposed on such whiskey.

While the plaintiff was on the stand the trial Judge permitted counsel for defendant on cross-examination to elicit from him the fact that he had pleaded guilty in 1940 to an indictment in the United States District Court which charged him with the above offense. Thereafter the indictment and plea were offered in evidence. There are six counts in the indictment all charging various violations of the Internal Revenue Law. One of the counts charged the defendants therein named, including the appellant, with being distillers of whiskey and that they "unlawfully did carry on the business of a distiller of spirits, to wit, whiskey, with intent to defraud the United States of the tax imposed by law on the spirits, distilled by them." Counsel for plaintiff made timely objection to both this cross-examination and the introduction of the indictment and plea of guilty to same. The objection was overruled and the correctness of this ruling of the trial Judge is the question raised for our determination.

While there are some decisions to the contrary, the great weight of authority upholds the right to cross-examine a witness as to his previous conviction of certain crimes for the purpose of impeaching his credibility, but there is considerable lack of harmony in the decisions as to what offenses may be shown for that purpose. The cases are annotated in 6 A.L.R. 1608, 25 A.L.R. 339, and 103 A.L.R. 350. These annotations disclose that in some jurisdictions such cross-examination is limited to crimes involving felonies, or those involving moral turpitude; in some no distinction is made between felonies and misdemeanors, but cross-examination is restricted to those offenses which may be reasonably classified as tending to affect the credibility of the witness; and in some jurisdictions, including North Carolina (State v. Sims, 213 N.C. 590, 197 S.E. 176, 178), such cross-examination is not limited to conviction of crimes and "any act of the witness which tends to impeach his character may be inquired about or proven by cross examination." In Maryland and a few other jurisdictions which restrict the offenses to those having some tendency to impeach credibility, the Courts recognize the difficulty in making a rigid classification, and within certain limits leave the matter to the sound discretion of the trial Judge, whose decision "will not be interfered with on appeal, except when the evidence is so clearly irrelevant that its admission could not be said to be within the discretion lodged with the trial court." Burgess v. State of Maryland, 161 Md. 162, 155 A. 153, 157, 75 A.L.R. 1471.

There is also considerable diversity of opinion as to whether a violation of the laws prohibiting, or regulating, intoxicating liquors is an offense which affords a basis for impeaching the credibility of a witness. See annotations in 40 A.L.R. 1048, 48 A.L.R. 266, and 71 A.L.R. 217. Most of the Federal Courts hold that any such violation when made a felony may be shown on cross-examination of a witness as affecting his credibility. The Federal decisions are reviewed at length in the case of Scaffidi et al. v. United States, 1 Cir., 37 F.2d 203.

While there are some intimations in the earlier cases to the contrary, the rule now seems to be well established in this State that a witness may be cross-examined as to his previous conviction of any crime tending to affect his credibility. State v. Gilstrap et al., 149 S.C. 445, 147 S.E. 600; State v. Gilbert, 196 S.C. 306, 13 S.E.2d 451. In the case of State v. Wyse, 33 S.C. 582, 12 S.E. 556, the record of the witness' conviction of petty larceny was held to be properly admitted to affect his credibility. It was held in the case of State v. Bing et al., 115 S.C. 506 , 106 S.E. 573, that the credibility of the witness might be tested by establishing on cross-examination his conviction of housebreaking.

However, considerable difficulty is frequently encountered in undertaking to determine whether a particular offense is such as tends to affect the credibility of a witness. In recent years the field of the criminal law has been so expanded that it is now used for the enforcement of a large volume of mere regulations of convenience and order, wholly without relation to any moral qualities. Some discrimination must be made when the Courts come to receive evidence of the violation of the law to impeach the credibility of a witness. The only object of such testimony is to discredit the witness by showing that his character is...