State v. Pollard , 260 S.C. 457 ( 1973 )

Lewis, Justice:

Appellant was convicted of armed robbery and sentenced to serve a term of twenty (20) years. He has appealed, alleging that the trial judge erred in allowing an investigating officer to testify that he had signed the arrest warrant for appellant upon the basis of information received from sources other than witnesses who testified at the trial.

On December 5, 1971, Irving T. Holtzclaw, while on duty at the service station of Savings Oil Company, Greenville County, South Carolina, was robbed by three black males, one of whom had a gun. Appellant was identified by Holtzclaw at the trial, about six months later, as the black male who carried the gun at the time of the robbery. There was no other evidence to connect appellant with the crime.

One of the investigating officers, Deputy Sheriff Livingston, a witness for the State, testified that he talked to Mr. Holtzclaw, the victim, about four nights after the robbery and that he subsequently signed a warrant for five people, including appellant, charging them with the commission of the crime. (Apparently, appellant was indicted with four others, but was tried alone.) This officer was permitted to further testify, over appellant’s objection, that he signed the arrest warrant for appellant and the others “from information received in the investigation” of the case. Thereafter, appellant’s counsel, reserving his objection, asked the officer if he signed the warrant on the basis of information received from the victim of the robbery, and his answer was: “No.”

Appellant contends that to allow the officer to testify that he signed the warrant from information received in the investigation amounted to the admission of prejudicial, hearsay testimony. The officer testified that he did not sign the arrest warrant upon information received from the victim. Therefore, his testimony was, in effect, that he had received information from some other source of witnesses as the basis for his signing the warrant. These witnesses, upon whom he relied to issue the warrant, did not testify and appellant contends that he was thereby denied the right to confront the witnesses against him.

The testimony of the officer, that he signed the warrant upon the basis of information received from witnesses who did not testify, was clearly hearsay and inadmissible. The State contends, however, that appellant has no valid ground for complaint because (1) he elicited the testimony in question and (2) he was not prejudiced by its admission in evidence. Neither contention has merit.

Testimony that the officer signed the warrant from information received in his investigation was first elicited by the State and admitted over appellant’s objection. Appellant’s questions concerning this matter were on cross examination after a proper reservation of the prior objection. Since the cross examination was done under a proper reservation, there was no waiver of appellant’s previous objection to the admissibility of the testimony.

Under the particular circumstances of this case, we think that the admission of the testimony was prejudicial. The trial was held about six months after the crime was committed. The question of identity was a crucial issue. The only identification of appellant was by the victim whose testimony was based upon his alleged observation of the appellant from a distance of about fifteen feet for about eight or ten minutes on the night of the robbery, approximately six months prior to the trial. The victim further testified that he had not seen appellant since the night of the crime. The only effect of the questioned testimony of the officer was to bolster the identification of appellant by conveying to the mind of the jury that there were others who connected appellant with the crime and that, upon the basis of their testimony, he had signed the warrant. This testimony deprived appellant of the right or guaranty of confrontation on a crucial issue in the case and the probabilities of prejudice are such as to require a new trial.

Reversed and remanded for a new trial.

Moss, C. J., and Bussey and Brailsford, JJ., concur. Littlejohn, J., dissents.