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Martin v. Commonwealth6/7/1991
licable where conduct involved in prior prosecution not necessary to proof of essential element of second prosecution).
Martin argues, however, that because the trial court ruled the encounter between Martin and Berry "was one act," the
Commonwealth is estopped from contending that the encounter was "a series of separate assaults." However, the record does not contain any ruling that the encounter between Martin and Berry "was one act." At one of the places cited by Martin, the trial judge made the general observation that "a single act may be an offense against two statutes," but this was not a finding that the encounter between Martin and Berry constituted only "one act."
Be that as it may, it is clear that the trial court did not dismiss the attempted capital murder indictment because it considered the encounter between Martin and Berry as "one act." Rather, the court dismissed the indictment because it found that the charge of obstructing justice, for which Martin had already been prosecuted, was a lesser included offense of the charge of attempted capital murder of a police officer.
Contrary to Martin's further contention, it does not follow that the trial court's dismissal of the capital murder charge constituted a dismissal of the attempted murder charge as well. In the first place, while obstructing justice may be a lesser included offense of attempted capital murder of a police officer, it is not a lesser included offense of attempted murder.
Furthermore, jeopardy attaches only after a jury is empaneled and sworn in a jury trial or the first witness is sworn in a bench trial. Bradshaw v. Commonwealth, 228 Va. 484, 492, 323 S.E.2d 567, 572 (1984); Rosser v. Commonwealth, 159 Va. 1028, 1031-32, 1036, 167 S.E. 257, 257 (1933). Here, the capital murder charge was dismissed in a pretrial ruling, prior to the empaneling and swearing of a jury or the swearing of any witnesses. Hence, dismissal of the attempted capital murder charge cannot form the basis of a double jeopardy bar to the prosecution for attempted murder.
Finally, Martin argues that Code § 19.2-294 barred [242 Va Page 12] his conviction for attempted murder after he had been convicted of obstructing justice. We disagree. Code § 19.2-294 provides that "if the same act be a violation of two or more statutes,... conviction under one of such statutes... shall be a bar to a prosecution or proceeding under the other or others." Even if we assume that Martin's conduct constituted only one act, we must yet hold that Code § 19.2-294 is not a bar to prosecution for attempted murder after a conviction of obstructing justice. While obstructing justice may be a statutory offense, attempted murder
is not; it is a common law offense. See Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981).
We hold that Martin's prosecution for attempted murder was not barred for any of the reasons he has advanced. A fortiori, Martin's prosecution for use of a firearm in the commission of attempted murder was not barred. Accordingly, we will affirm the judgment of the trial court.
Affirmed.
Disposition
Affirmed.
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