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STATE v. HOLLMAN

April 8, 1958

THE STATE, RESPONDENT,
v.
GENTLEE HOLLMAN, APPELLANT.



The opinion of the court was delivered by: Legge, Justice.

April 8, 1958.

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 $1,000.00; and on the second, to serve at hard labor for three years or pay a fine of $1,500.00; the sentences to run consecutively in the order named. Thereafter, in due time, 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 trial 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 assault?

"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 sudden 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 ...


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