Owens v. Commonwealth

• Decision Date: 20 January 1921
• Citation: 105 S.E. 531
• Court: Virginia Supreme Court
• Parties: OWENS. v. COMMONWEALTH.

105 S.E. 531

OWENS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 20, 1921.

Error to Circuit Court, Dickenson County.

D. C. Owens was convicted of a violation of the Prohibition Act, and brings error. Affirmed.

A. A. Skeen, of Clintwood, for plaintiff in error.

Jno. R. Saunders, Atty. Gen., for the Commonwealth.

PRENTIS, J. This case requires the construction of Code 1919, § 4775, as amended by the Acts of 1920, p. 99.

The accused was arrested for violation of section 23 of the Prohibition Act (Laws 1918, c. 388) on April 18, 1920, and after a preliminary examination by a justice of the peace was required to enter into a recognizance to appear at the next term of the circuit court of Dickenson county to answer any indictment which might be found against him. An indictment for the offense charged was found by the grand jury at the next term on the 1st day of July, 1920, and upon his trial he was found guilty.

In the meantime, on May 17, 1920, the ac cused was indicted for the same offense in the United States court for the Western District of Virginia. Upon his trial in the state court he relied for his defense upon the amendment to Code 1919, § 4775, and pleaded that because of such indictment in the federal court the prosecution in the state court previously commenced was barred. Originally the section read thus:

"If the same act be a violation of two or more statutes, or of two or more municipal ordinances, a prosecution or proceeding under one of such acts or ordinances shall be a bar to a prosecution under the other or others."

The amendment consisted of striking out of the first clause of the section the words "a prosecution or proceeding, " and substituting therefor the word "conviction, " so that there must first be a conviction under one of the acts or ordinances before this clause of the statute operates. A mere proceeding or prosecution which does not result in a conviction does not bar another prosecution in a state court.

The section, however, was further amended by the addition thereto of this clause, "Furthermore, if the same act be a violation of both a state and federal statute, a prosecution or proceeding under the federal statute shall be a bar to a prosecution or proceeding under the state statute;" and it is under this amendment that the accused claims immunity from this prosecution.

A brief review of the history of these statutes will be helpful. It appears from a note to this section which calls attention to the fact that the section is new that the revisors desired to remove the apparent hardship manifest in Arrington v. Commonwealth, 87 Va. 96, 12 S. E. 224, 10 L. R. A. 242, in which a prisoner had committed but a single act, but, inasmuch as it violated two statutes, she was convicted under both. In that note the revisors use this language:

"The same act may be an offense against the state and against the United States, but the general practice has been, by comity, that if the defendant is prosecuted in one jurisdiction, the other does not prosecute."

Then, after calling attention to some authorities, and saying that it is not an uncommon thing for a person to be arrested under a municipal ordinance, say for disorderly conduct, and then when brought before the mayor or police justice, to be fined under several ordinances for different offenses, the note concludes:

"The statute as prepared by the revisors extends only to cases where a single act violates two statutes or two ordinances. They are of opinion that it should be extended still further to cases where a single act violates one or more statutes and one or more ordinances. This could be effected by inserting in the section in line 2, after the word 'ordinances, ' the words 'or of one or more statutes and...