State v. Hoffman

• Decision Date: 17 January 1972
• Docket Number: No. 19358,19358
• Citation: 186 S.E.2d 421,257 S.C. 461
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Hugh Wayne HOFFMAN, Appellant.

Page 421

186 S.E.2d 421

257 S.C. 461

The STATE, Respondent, v. Hugh Wayne HOFFMAN, Appellant.

No. 19358.

Supreme Court of South Carolina.

Jan. 17, 1972.

Clyde C. Dean, Orangeburg, Henry Hammer and Howard B. Hammer, Columbia, for appellant.

Sol. Julian S. Wolfe, Orangeburg, and Asst. Atty. Gen. Clarence T. Goolsby, Columbia, for respondent.

MOSS, Chief Justice:

The Town of St. Matthews, on May 14, 1970, issued warrants charging Hugh Wayne Hoffman, the appellant herein, with (1) creating excessive noise in the operation of a motorcycle; (2) operating his motorcycle too fast for conditions; and (3) failing to stop his motorcycle when signaled to do so by an officer by means of a flashing light in violation of Section 46--359 of the Code. The first two charges above stated were tried in the Municipal Court of the Town of St. Matthews and a jury found the appellant not guilty.

Thereafter, the appellant was indicted and tried at the 1971 February Term of the Court of General Sessions for Calhoun County, before the Honorable James A. Spruill, presiding judge, and a jury, upon the charge of violating Section 46--359 of the Code. During the course of the trial, the appellant made several motions, to which reference will hereinafter be made, and all such motions were refused. The jury found the appellant guilty as charged. This appeal followed.

Based upon such prior acquittals in the Municipal Court of the Town of St. Matthews of the offenses of speeding and making excessive noise, the appellant interposed the plea of double jeopardy as a bar to the present prosecution. The lower court refused to sustain the plea and the question for determination here involves the correctness of this ruling.

In the recent case of State v. Hill, 254 S.C. 321, 175 S.E.2d 227, the appellants were convicted in the Municipal Court of the City of Greenville of the offense of disorderly conduct. Thereafter, they were tried in the Court of General Sessions for Greenville County upon a charge of assault and battery of a high and aggravated nature. They interposed the plea of former jeopardy as a bar to such prosecution. The trial judge refused to sustain such plea and from a conviction the appellants prosecuted an appeal to this Court. In disposing of the plea of former jeopardy this Court said:

'The United States Supreme Court has recently decided that the double jeopardy clause of the Fifth Amendment to the Federal Constitution is now applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. In doing so, the prior contrary holding in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, was overruled.

'Following Benton, the case of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, was decided. Waller held the separate sovereignty rule inapplicable between two courts within the same State and sustained a plea of double jeopardy to the subsequent prosecution of a defendant in the State Court, where he had been previously convicted in a municipal court for the identical offense.

'However, these decisions do not impinge upon the selled rule, applicable here, that the provisions against double jeopardy apply only to a second prosecution for the same act and crime, both in law and fact, for which the first prosecution was instituted.'

The test generally applied is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first indictment. State v. Steadman, 216 S.C. 579, 59 S.E.2d 168.

The evidence that one was speeding or making excessive noise would not be sufficient to convict one for failure to stop when signaled by any law enforcement vehicle by means of a siren to flashing light. Evidence that a driver of a motor vehicle did not stop for a flashing light or siren would not be sufficient to convict a driver of speeding or creating excessive noise.

Prohibition against double jeopardy does not apply when two separate and distinct crimes are committed in the same transaction or related acts even though the crimes are so closely connected in point of time that it is impossible to separate the evidence related to them. 1 Wharton's Criminal Law and Procedure, Section 145, Pages 347--348.

In the instant case the only issue of ultimate fact to be determined is whether the appellant failed to stop for the flashing light or siren. Prosecution here was not for the same act and crime for which the appellant was prosecuted in the Municipal Court of the Town of St. Matthews.

The lower court was correct in refusing to sustain the appellant's plea of double jeopardy.

A police officer of the Town of St. Matthews testified in the trial concerning the speed and excessive noise made by several motorcycles being operated over the streets of the said town. He further testified that he turned on his 'Blue Light' in an effort to stop the riders of the motorcycles and they failed to heed the signal so given. This officer then gave a signal to stop by means of his siren. One of the riders, Harry Truman Burns, did stop when a signal was given by means of a siren. Burns was called as a witness in behalf of the State. The record shows that he had testified in a previous trial and had identified the appellant as one of the several persons who were operating motorcycles at the time in question. At the trial Burns, upon the advice of appellant's counsel, refused to answer and invoked the Fifth Amendment on the ground that the witness, on the basis of his admission, could be prosecuted for the violation of Section 46--359. The trial judge ruled that on the basis of the testimony of the officer that Burns had stopped his motorcycle when a signal was given by the siren on the officer's vehicle, that the witness could not be convicted of a violation of the aforesaid section. The State further granted the witness full immunity from any prosecution under Section 46--359. The court declared the witness to be hostile and allowed the State to cross-examine. He then identified the appellant as an operator of a motorcycle at the time in question.

The examination of the witness Burns by counsel for the appellant was extensive and covers about ten pages of the transcript. The witness testified in response to questions propounded by counsel for the appellant that he along with the appellant and one Glenn Rucker were riding their motorcycles in and near the Town of St. Matthews on the night of May 13, 1970. He stated that one of the riders gave out of gasoline and they went to a filling station and store operated by a man named Spires to replenish the gasoline supply. While there he stated that the police officer in question came up and used profane language toward them, stating, 'I want these damn motorcycles out of town.' He further testified that they were riding their motorcycles at a normal rate of speed without creating any loud noise. He further stated that the motorcycles were equipped with regular mufflers. We quote the following from the testimony given during this examination:

'Q. And about how fast were you driving? The three of you. Were you driving within the speed limit?

'A. Yes, sir.

'Q. How much would that be? About twenty-five miles an hour?

'A. I was running right at twenty-five.

'Q. And who was in front of you?

'A. Rucker and Hugh Wayne.

'Q. And who was in front of Mr. Rucker?

'A. They was side by side.'

This witness admitted that they had circled a block in the Town of St. Matthews four times and that as they proceeded down a street in said town and when he was 50 or 75 yards from turning off he saw the blue light. This witness admitted that he was arrested and taken to jail for creating excessive noise in the operation of his motorcycle and driving it too fast for conditions. He said that he was bailed out of jail by Glenn Rucker who was accompanied to the jail by the appellant. He stated that the officer did not say anything to Rucker or Hoffman about having violated the law in any way. He testified against that neither of these men were speeding in the operation of their motorcycles.

During the examination of Burns, he was asked the following:

'Q. You were right behind these men according to your testimony, what was their speed?

'A. They would have been going the same thing I was, because I was keeping right up with them.

'Q. That would be between twenty-five and thirty miles an hour?

'Mr. Goolsby: If Your Honor please, we object to that. Counsel is leading.

'The Court: Yes, sir. You are leading the witness.'

Counsel for the appellant took the position that Burns was a witness for the State and his cross-examination of such witness could not be limited. The court ruled that he had declared Burns a witness hostile to the State, and favorable to the appellant, and because of such the appellant was limited in his cross-examination. The appellant assigns error in this ruling.

We have held that the general range and extent of cross-examination is within the discretion of the trial judge, subject to the limitation that it must relate to matters pertinent to the issue, or to specific acts which tend to discredit the witness or impeach his moral character. The discretion of the trial court in allowing examination is not subject to review except in the case of manifest abuse or injustice. State v. Maxey, 218 S.C. 106, 62 S.E.2d 100 and State v. Bass, 242 S.C. 193, 130 S.E.2d 481. The reason for the rule permitting leading questions to an adverse witness on cross-examination is the assumed hostility of such witness to the cross-examiner's cause; and where an adverse witness is shown to be friendly toward or biased in favor of the cross-examiner the reason for the rule ceases to exist and leading questions may not be used in examining such witnesses. 38 A.L.R.2d, at Page 954. As is shown above, the witness had already testified in answer to a leading question that they were...