State v. Hollman

• Decision Date: 08 April 1958
• Docket Number: No. 17409,17409
• Citation: 232 S.C. 489,102 S.E.2d 873
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Gentlee HOLLMAN, Appellant.

Page 873

102 S.E.2d 873

232 S.C. 489

The STATE, Respondent, v. Gentlee HOLLMAN, Appellant.

No. 17409.

Supreme Court of South Carolina.

April 8, 1958.

F. Ehrlich Thomson, Columbia, for appellant.

Solicitor Julian S. Wolfe, Orangeburg, Henry L. Lake, St. Matthews, Atty. Gen. T. C. Callison, Asst. Atty. Gen. William F. Austin, Columbia, for respondent.

LEGGE, Justice.

Appellant was tried in May, 1957, under an indictment containing two counts, viz.: (1) resisting an officer; and (2) assault and battery with intent to kill and murder. He was not represented by counsel at the trial. The jury having returned a verdict of guilty on the first count and, on the second count, guilty of assault and battery of a high and aggravated nature, the trial judge sentenced him: on the first count, to serve at hard labor for four years or pay a fine of $1,000; and on the second, to serve at hard labor for three years or pay a fine of $1,500; the sentences to run consecutively in the order named. Thereafter, in due him, he served notice of appeal to this court and the following 'Grounds For Appeal';

'1. Conviction based upon incompetent evidence and prejudice per se.

'2. Denied the Constitutional right to the assistance of counsel after request therefor.

'3. Denied the right to have women on jury.

'4. Denied the Constitutional right to have colored people on jury.

'5. Sentence was imposed in violation of the laws and Constitution of the United States and the State of South Carolina.

'6. Sentence is in excess of maximum authorized by law'.

Thereafter, appellant filed with this court a document, obviously prepared by himself, designated 'Application For a Writ of Certiorari', wherein he charged, in addition to the 'Grounds For Appeal' before mentioned, that: (a) 'the evidence produced by the prosecution was not sufficient to support the allegations contained in the indictment;' and (b) 'the two counts in the alleged indictment constitutes one single continuous criminal act inspired by the same criminal intent'. Thereupon the Chief Justice, by order dated October 17, 1957, appointed F. Ehrlich Thomson, Esq., an experienced and able member of the Richland County bar, 'to represent appellant and present his appeal'.

In his brief, appellant's counsel states the 'Questions Involved' as follows:

'1. Did the court's refusal to appoint counsel to represent defendant deny defendant 'due process of law' guaranteed by the Fourteenth Amendment of the Constitution of the United States?

'2. Was the defendant deprived of the right of a jury trial and the due process of law guaranteed by both the State and Federal Constitutions by the failure to swear the jury as required by Title 38, Section 210, Code of Laws of South Carolina, 1952?

'3. Under the facts of this case, was a single crime committed or were there two distinct and separate crimes committed?

'4. Was it error, under the facts of this case, to submit the case to the jury upon the charge of resisting an officer in the discharge of his duty and also the charge of assault and battery with intent to kill and murder?

'5. Is there sufficient evidence in the record to sustain defendant's conviction of assault and battery of a high and aggravated nature?

'6. Was it error, under the facts of this case, for the trial judge to charge the law with reference to assault and battery with intent to kill and murder?

'7. Was it error, under the facts of this case, for the jury judge to charge the law with reference to assault and battery of a high and aggravated nature?

'8. Was it error, under the facts of this case, for the trial judge to fail to charge the law with reference to simple assult?

'9. Was it error, under the facts of this case, for the trial judge to sentence the defendant for the crime of resisting arrest and also for the crime of assault and battery of a high and aggravated nature?'

There is no real controversy as to the circumstances leading up to the appellant's arrest and subsequent indictment. The State presented two witnesses, both officers of the State Highway Patrol, namely: Corporal J. K. Westbury, who made the arrest, and Sergeant A. B. McLeod, who corroborated Corporal Westbury's testimony in certain particulars to which we shall later refer. The appellant did not testify, and the only witness offered by him testified that he was not present at the time of the arrest and that he knew nothing pertinent to the issues involved.

Corporal Westbury's account of the matter was as follows:

On February 14, 1957, while on duty, in uniform, on U. S. Highway 176 in Calhoun County, he observed, traveling toward him, a stakebody truck with no front license plate. Three negroes were in the cab. After passing the truck, he noticed that it was without cargo, and that it bore on the rear a Florida license plate. He then turned his patrol car around to follow it; and as he neared it the driver, appellant, pulled the truck over to the side of the road, stopped it, got out, and lifted its hood. Westbury, having stopped his car, walked up and asked appellant for his driver's license. Appellant produced an expired public service license and a bill of sale for the truck, but could produce no valid driver's license. After allowing him and the other occupants of the truck ample time to search for his license (he had told the officer that he had both a Florida and a South Carolina driver's license), Westbury told appellant that he would have to put him under arrest for having no driver's license and for investigation. Appellant then asked if he could put up bond for not having a driver's license in his possession. Westbury replied that he would have to detain him until he could check the bill of sale and ordered him to come with him. To quote from Corporal Westbury's testimony at this point:

'He started off in an orderly manner and all of a sudedn he pulled back, then lunged right into me, grabbing around me about the gun. I tried to get him loose. I reached for my gun and he had it around the holster. I finally managed to get it loose. As I got loose from him I shot one time. He got back from me. At this time the party in the truck told him to go with the law, you can't resist. At that time he started back into me again. At that time I snapped the pistol but it didn't shoot. At this time he fell down on his knees, threw up his hands and said, 'You got me'. I told him to get up and in the patrol car. He got up. I opened the door and he got in the car and sat down. I went around to the driver's side and got my handcuffs and started to put those on him. He did not want them put on. He said, 'The only thing you want to put them on for is to beat me to death'. I told him 'No, but I would have to put the handcuffs on you'. I brought him down to Dr. Huff's office for treatment. I had hit him in the foot with that bullet. We then met Sergeant McLeod at the County Jail. * * * 'Q. Mr. Westbury, were you in full uniform on February 14th, the day of this occasion? A. I was in full uniform. I had on a jacket which he tore when he grabbed for my gun.

* * *

* * *

'When he came into me I pulled around and he got hold of the coat and split it wide open.

'Q. Mr. Westbury, was the defendant under arrest when he attacked you? A. He was under arrest and had started to the car with me and that is when he drew back and lunged on me.

'Q. Did he knock you from your feet or anything? A. No, sir, he did not get me off my feet. I managed to stay to my feet but he had around me and had his hand around the gun holster.

'Q. He had his hand---- A. He had his hand around the holster of the gun. I managed to get it loose.'

Sergeant McLeod testified that in response to information received on the police radio he went to the county jail and there met Corporal Westbury and the appellant; that he asked appellant what had happened, and appellant refused to make any statement; that witness noticed that Corporal Westbury's coat was torn.

We note at the outset that the 'Questions Involved' as stated in the brief of appellant's counsel purport to include issues not attempted to be raised by appellant's 'Grounds For Appeal'. The tanscript of record discloses, moreover, that not one of the questions sought to be presented by either the 'Grounds For Appeal' or the 'Questions Involved' was raised in the trial court. None of these questions being properly before us, Simonds v. Simonds, 229 S.C. 376, 93 S.E.2d 107, our consideration of any of them must be given, if at all, as a matter of grace, not of right.

Nor is appellant in better position to urge consideration of these questions because of the fact that he was not represented by counsel at the trial. It is true that where one has conducted his defense in person technical rules are to be applied with much less stringency than where he has been represented by counsel. 14 Am.Jur., Criminal Law, Section 169, p. 884; State v. Owens, 124 S.C. 220, 117 S.E. 536. But established rules of procedure are not to be discarded, either in the trial court or on appeal, merely because the defendant has been his own lawyer. Our custom of long standing requires that we relax them in capital cases even when the defendant has been represented by counsel, State v. Waitus, 226 S.C. 44, 83 S.E.2d 629; State v. Green, 227 S.C. 1, 86 S.E.2d 598; but in cases not capital our power to do so should be exercised only when necessary to prevent a manifest miscarriage of justice.

In the light of the foregoing principles, but one of the issues sought to be raised here deserves consideration. We shall, however, in passing, refer to the others sufficiently to show their lack of merit even had they been timely presented.

The record before us furnishes no foundation for appellant's contention (Grounds For Appeal, 1) that his conviction was based upon incompetent evidence and prejudice. Moreover, no objection for incompetence was made to any testimony; the 'Ground For Appeal' fails to comply with Section 6 o...