Sigmon v. Com.

• Decision Date: 13 October 1958
• Docket Number: No. 4875,4875
• Parties: HENRY JAMES SIGMON v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 171

105 S.E.2d 171

200 Va. 258

HENRY JAMES SIGMON v. COMMONWEALTH OF VIRGINIA.

Record No. 4875.

Supreme Court of Appeals of Virginia

October 13, 1958.

B. A. Davis, III (B. A. Davis, Jr., on brief), for the plaintiff in error.

John W. Knowles, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

The sole question presented in this appeal is whether, under the facts and circumstances hereinafter stated, the provisions of § 19-232, Code of Virginia, 1950, entitle the plaintiff in error, Henry James Sigmon, to immunity from prosecution in the Circuit Court of Appomattox County, Virginia, for the specific offense here involved. Code § 19-232 reads as follows:

'If the same act be a violation of two or more statutes, or of two or more municipal ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others. Furthermore, if the same act be a violation of both a State and a federal statute a prosecution or proceeding under the federal statute shall be a bar to a prosecution or proceeding under the State statute.'

The case has been presented to us upon an agreed stipulation of facts, a summary of which follows:

Henry James Sigmon, hereinafter referred to as the defendant, along with John Saunders, was apprehended and arrested while engaged in the unlawful manufacture of alcoholic beverages at an unlicensed distillery. The arresting officers were H. C. Matthews, State Alcoholic Beverage Control Investigator, C. P. Tucker, a Federal Agent of the United States Internal Revenue Service, and W. S. Conner, a Deputy Sheriff of Appomattox County.

Sigmon and Saunders were taken to the Town of Appomattox, where it was agreed by the Commonwealth's Attorney of Appomattox County, Matthews, the State agent, and Tucker, the Federal agent, that both prisoners would be turned over to the Federal authorities for the disposal of the charges against them under federal statutes, in the United States District Court for the Western District of Virginia.

The arrested men were taken in custody to Lynchburg, Virginia, and lodged in jail overnight, August 20, 1957, as Federal prisoners. The next day a Federal warrant was sworn out against them by Tucker, the warrant being issued by the United States Commissioner. Brought before the Commissioner, Saunders was dismissed for lack of evidence, and Sigmon, having waived a preliminary hearing, gave bond before the Commissioner in the sum of $1,000 for his appearance in the United States District Court at Lynchburg on January 13, 1958. The Federal warrant charged Sigmon with the violation of sections 5174(a), 5180, 5606, 5216, 5632, and 7301 of Title 26, U.S.C.A., all of which sections relate to the illegal manufacture, removal and concealment of distilled spirits, including the same offense for which sigmon was tried in the Circuit Court of Appomattox County.

On November 10, 1957, a Federal grand jury, convened at Roanoke in the Western District of Virginia, returned two indictments charging Sigmon with unlawfully distilling in Floyd and Franklin Counties Virginia, on May 31, 1957 and July 15, 1957, respectively. On November 10, 1957, Sigmon pleaded guilty to each of those two indictments, and the cases were heard by the Court without a jury. The Court was then advised, in open court, of the charges then pending in that court against Sigmon for the Appomattox offense, and requested by the Assistant United States Attorney, that in determining the sentence to be imposed upon Sigmon for the offenses of May and July, it take into consideration the facts of that violation. The United States District Court then sentenced Sigmon to be placed on probation for a period of three years.

In the meantime, no warrant or charge for violation of the State law was sworn out against Sigmon in Appomattox County. Subsequently, Matthews, the State A.B.C. Investigator, not being 'satisfied with the disposition of the Sigmon case' by the Federal Court 'proposed and instigated the prosecution of Sigmon in the Circuit Court of Appomattox County. ' In December, 1957 Matthews and Federal Agent Tucker appeared before the grand jury of the Circuit Court of Appomattox County, and the grand jury, after hearing their testimony, returned a true bill indicting Sigmon for feloniously and unlawfully manufacturing alcoholic beverages in Appomattox County, Virginia, on August 20, 1957, in violation of 'Chapter 1 of Title 4 of the 1950 Code of Virginia, and amendments thereto. ' A capias was issued for Sigmon. He was arrested and bailed for his appearance on January 10, 1958, in the Circuit Court. No prosecution has been commenced against John Saunders by the State of Virginia.

On January 10, Sigmon filed a written motion in the Circuit Court to quash and dismiss the indictment against him on the ground that he had already been prosecuted and proceeded against in the United States District Court for the same offense and had been punished by that Court for that offense. The motion was overruled, Sigmon excepted, and his trial proceeded. Upon his arraignment, Sigmon entered a plea of not guilty, waived a trial by jury and, with the consent of the Attorney for the Commonwealth, submitted the case to the Court.

After hearing the evidence of the Commonwealth, the defendant again renewed his motion to quash the indictment and discharge him, on the ground that § 19-232 was a 'complete bar to his prosecution in the Circuit Court. ' The motion was overruled and Sigmon duly excepted. Sigmon thereupon, with the consent of the Court, introduced in evidence a certified copy of the Federal warrant issued for him on August 21, 1957, a certified copy of the bond taken by the United States Commissioner for his appearance at the January term of the United States District Court, and a letter dated December 23, 1957, from Thomas J. Wilson, Assistant United States Attorney for the Western District of Virginia, relative to the incidents of the hearing in the Federal Court on November 10, 1957. In this letter, the Federal prosecutor stated that he did not present all of the cases pending in the United States Court against Sigmon 'as a matter of convenience to our office in avoiding duplication of prosecutions. ' He further said: 'It is our practice to call to the Court's attention other violations, and that was done in the case of Sigmon. The Court had before it information concerning the Appomattox County violation, and was requested to take into consideration the other violations in passing sentence.'

The Commonwealth then introduced a letter dated January 3, 1958, from Wilson, responding to an inquiry from the Commonwealth's Attorney of Appomattox County. In this letter, the Federal prosecutor again recited the incidents of the trial of Sigmon at Roanoke in November, 1957, and wrote in addition, the following:

'At the time of Sigmon's arrest in Appomattox County, there were two other distilling charges pending against him in our office for violations in Floyd and Franklin Counties on May 31, 1957 and July 15, 1957, respectively. Both of those cases were Roanoke cases for disposition at the November term here.

'The Appomattox County violation was committed in the course of a conspiracy with several other persons. While Sigmon was an important part of the conspiracy, I do not consider him one of the principal defendants. I was informed that Sigmon is an alcoholic and had made several trips to the Western State Hospital at Staunton because of it. Since we had two cases pending against him, I decided it was not worth while to proceed against him at Lynchburg either on the distilling charge or on the conspiracy charge, but instead, requested the Court at Roanoke in November to take into consideration the other violation in passing sentence on the two distilling charges at Roanoke.

'To the surprise of everyone, Judge Paul placed the man on probation for three years. I recall that he pleaded a distressing family situation and assured the Court he would move out of the whiskey country in Franklin County and stay out of the business. The Judge, I believe, decided he would take a chance on Sigmon's getting out of the business and staying out.

'Since the Judge saw fit to put him on probation and at the same time had before him information concerning the Appomattox County violation, we do not intend to proceed against him further.

'For your information, however, if it appears from reliable information that Sigmon violates his probation, I feel certain Judge Paul will revoke it without the necessity of him being actually caught in a violation.'

The stipulated facts further recite 'that the evidence shows that Judge Paul (U.S. District Judge) took into consideration the Appomattox County case in fixing the punishment of Sigmon and the two prior cases when they were heard in the Federal Court,' and that 'The letters of the Assistant District Attorney clearly indicate that they do not intend to present an indictment to the grand jury (Federal) charging Sigmon with the Appomattox County violation.'

At the conclusion of the hearing, the Circuit Court found Sigmon guilty and sentenced him to eighteen months in the State Penitentiary and the payment of a fine of $1,000. Sigmon excepted and moved the Court to suspend the execution of his sentence to give him an opportunity to apply for a writ of error, and sentence was suspended for a period of ninety days.

On January 31, 1958, the Circuit Court entered an order reciting, 'It being brought to the attention of the Court' that there was error in its order of January 10, 1958, in imposing both a penitentiary sentence and fine, contrary to Code § 4-57, the order of January 10th is hereby 'changed to read that the accused be confined in Jail for a...