State v. Haulcomb, 19589

• Decision Date: 20 March 1973
• Docket Number: No. 19589,19589
• Citation: 195 S.E.2d 601,260 S.C. 260
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Ronald Stephen HAULCOMB and Kenneth Pinneau, Appellants.

Page 601

195 S.E.2d 601

260 S.C. 260

The STATE, Respondent, v. Ronald Stephen HAULCOMB and Kenneth Pinneau, Appellants.

No. 19589.

Supreme Court of South Carolina.

March 20, 1973.

Howard P. King and David W. Goldman, Sumter, for appellants.

Sol. R. Kirk McLeod and Asst. Sol., Robert W. Burkett, Sumter, for respondent.

LITTLEJOHN, Justice:

The defendants, Ronald Stephen Haulcomb and Kenneth Pinneau, were tried by jury in July, 1971, in the Court of General Sessions of Sumter County on indictments charging them with safecracking and housebreaking. In an opening statement to the jury, defendants admitted the allegations of the indictments and thereafter relied solely on the defense of entrapment.

The jury wrote a verdict of guilty as to each charge and both defendants were sentenced. Thereafter, a timely appeal was filed with this Court. Subsequently, defendants moved before this Court to suspend the appeal and asked this Court to grant leave to them to move before the trial judge for an order directing a new trial upon the grounds of after-discovered evidence.

We heard arguments upon this motion and handed down an order granting the motion. The appeal was argued and we deferred a ruling on the appeal on its merits pending the lower court's ruling on the motion for a new trial.

The motion for a new trial was denied by the trial judge; defendants took exceptions and filed a timely appeal.

In this opinion we will consider both the appeal from the trial on its merits and the appeal from the denial of a new trial.

In the appeal from the jury verdict, the defendants raise several questions. They challenge: (1) the trial judge's charge to the jury; (2) the constitutionality of South Carolina Code of Laws § 16--337 (1962, supp. 1972) covering safecracking; (3) the failure of the state to produce the alleged informer-participant as a witness; (4) the trial judge's refusal to admit evidence of defendants' offer to take a polygraph test.

Prior to a consideration of the questions raised, a brief summary of the facts leading up to the arrest is in order.

J. P. Strom, Chief of the South Carolina Law Enforcement Division (SLED), testified without objection as follows: In early February, 1971, he was contacted by an individual who explained that a second individual, named Edward 'Red' Coran (a known safecracker), had been approached by certain persons who were planning a safecracking. The safecracking was to take place in South Carolina and Coran's assistance had been sought. Strom arranged for an interview with Coran and paid his air fare from Florida to Columbia. During their meeting (in mid-February), Coran verified that he had been approached concerning the safecracking. He stated that he did not know where it was to occur but that he would contact Strom immediately upon getting this information. Strom paid Coran $200 and promised to pay him an additional $200 after an arrest was made.

After Coran contacted Strom again, a stake-out was set up at a store in Oswego, (near Sumter) South Carolina, during the evening of March 7, 1971. At approximately 9 p.m. Coran, accompanied by the defendants, entered the store through a rear door. The dial from a safe, which was located in the store, was knocked off. Coran then managed to leave the store undetected by most of the 20 to 25 law enforcement officers who then closed in on the premises and arrested both Haulcomb and Pinneau.

Coran was not present at the trial, although Strom testified that he could have arranged for his presence.

The defendant Pinneau testified that he knew nothing of the safecracking until the middle of February, when he was approached by Coran. Earlier, he said, Coran's wife had told him that Coran had been to South Carolina.

The defendant Haulcomb testified that he knew nothing of the safecracking until March 3, 1971, when he was approached by Coran and asked to go along as a lookout. Haulcomb further testified that he did not consent to go until the day before the incident occurred, and then only after much prompting from Coran.

Each defendant testified that he had never heard of or been to Sumter prior to the incident. Both testified that Coran personally broke into the store and knocked off the dial of the safe.

The defendants offered testimony, in the absence of the jury, that they were present at SLED headquarters on April 15, 1971, and offered to take a lie detector test; that they were willing at that time to answer any questions of Chief Strom or any SLED agent, particularly as to their first knowledge of the possibility of committing an offense in South Carolina, and that their offer to take the test was refused. The remainder of the evidence concerns more details of the events leading up to the arrest.

Inasmuch as the defendants admitted that they committed the acts alleged by the State, the real issue for determination was: Did the defendants prove by the greater weight of the evidence that they were entrapped? The verdict hinged upon this issue. Entrapment is recognized as a valid defense in this State. State v. Jacobs, 238 S.C. 234, 119 S.E.2d 735 (1961). It is an affirmative defense which necessarily assumes that the acts charged were committed.

The defendants moved at the beginning of the trial to quash the indictment for 'safecracking' on the ground that the statute quoted below is unconstitutionally vague, and on the ground that the punishment permitted is cruel and unusual as prohibited by the South Carolina and the United States Constitutions. The motion was overruled; by proper exceptions the defendants now ask this Court to reverse the trial judge and hold the safecracking statute invalid.

The statute, § 16--337 of the 1962 Code, reads as follows:

'Safecracking.--Any person convicted of using explosives, tools or any other implement in or about a safe used for keeping money or other valuables with intent to commit larceny or any other crime shall be guilty of a felony and be sentenced to the Penitentiary during the term of his life; Provided, that if the jury recommend the defendant to the mercy of the court, a sentence of not less than ten years' imprisonment may be imposed, in the discretion of the court.'

This statute was enacted in 1904 by the General Assembly. It was entitled, 'An Act to Provide Punishment for Safe-Crackers.' In 1955, it was amended so as to add, after the word Explosives, 'tools or any other implement.' Apparently, its constitutionality on the grounds now submitted to this Court has never been challenged before.

We recognize that crimes must be defined with definiteness such that men of common intelligence would not guess at its meaning. Town of Honea Path v. Flynn, 255 S.C. 32, 176 S.E.2d 564 (1970); State v. DeAngelis, 257 S.C. 44, 183 S.E.2d 906 (1971).

The contention that the statute is not sufficiently definite to place a person of common intelligence on notice as to what is prohibited is clearly without merit. The offense is designated in bold-faced letters--' SAFECRACKING.'

We are also of the opinion that the statute is not unconstitutional by reason of the fact that life imprisonment is directed upon conviction if the jury does not recommend mercy, and not less than ten years' imprisonment is directed when the jury does recommend mercy. There is no contention that the sentence imposed on these defendants was cruel and unusual. Indeed, the record does not even reflect what sentence the judge in his discretion imposed. The gist of the defendants' argument is that life imprisonment is not constitutionally justified in any case whatsoever for the offense of safecracking. The argument that the penalty is out of proportion to other penalties provided by statutory law has some appeal, but the argument is basically an attack on the wisdom of the statute. It does not persuade us that it is unconstitutional. The penalties are properly matters for determination by the legislature. We refuse to hold that the penalties provided are constitutionally impermissible.

The defendants have also taken exception because of the refusal of the judge to charge:

'. . . (W)hen one witness is more peculiarly available to one side than the other side, that it can be presumed that the evidence which he would have presented would be unfavorable to the side that failed to call him, that being the testimony of Mr. Coran.'

At the outset, to have such an inference, it becomes necessary to determine which of the parties to the action should have called the witness in order to determine who should bear the onus of the adverse presumption. See Annot., 5 A.L.R.2d 893 (1949).

As indicated above, the pivotal issue for determination by the jury was not whether the State had proved its case, but whether the defendants had proved the defense of entrapment. After the defendants admitted their participation in the offenses charged, the defendants became the moving parties on the entrapment issue. It was not encumbent upon the State to prove the defense of entrapment. So far as the record shows, after Chief Strom stated that he could have arranged to have had Coran present in the court during the trial, no request was made that the State or the judge produce him so that he could testify on behalf of the defendants. Under the facts of this case, the rule which the...