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                 COURT OF APPEALS OF VIRGINIA



Present:  Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia


CHARLES WILSON DAVIS
                   MEMORANDUM OPINION BY
v.           Record No. 2626-95-2          JUDGE LARRY G. ELDER
                                           APRIL 1, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                     David F. Berry, Judge

         Norman Lamson for appellant.

         Kimberley A. Whittle, Assistant Attorney
         General (James S. Gilmore, III, Attorney
         General, on brief), for appellee.


    Charles Wilson Davis (appellant) appeals his conviction of
felony embezzlement in violation of Code   18.2-111.  He contends
that the trial court erred when it granted the Commonwealth's
motion to amend the indictment.  He argues that the amendment
(1) improperly changed the nature and character of the offense
charged in the indictment, (2) violated his statutory right to a
felony indictment under Code   19.2-217, and (3) violated his
right to a grand jury indictment under the "Law of the Land
Clause" in Va. Const. art. I,   8.  For the reasons that follow,
we affirm.                                I.
                             FACTS
    On March 7, 1995, appellant was arrested pursuant to a
warrant charging him with the unauthorized use of a Cadillac in
violation of Code   18.2-102.  On June 5, 1995, the grand jury
returned a true bill that charged appellant with embezzlement of
the automobile instead of its unauthorized use.  The indictment
stated:
         THE GRAND JURY CHARGES THAT:

                        On or about August 30, 1993, in the
         County of Albemarle, CHARLES WILSON DAVIS did
         wrongfully, feloniously and fraudulently
         embezzle an automobile which had been
         entrusted to him by William W. Wild.

         VIRGINIA CODE SECTION:  18.2-111
    On the day of appellant's trial but prior to his
arraignment, appellant's counsel told the trial court that he
understood the indictment against appellant as a charge of
misdemeanor, and not felony, embezzlement.  In support of his
contention, appellant's counsel pointed out that the indictment
did not allege that the value of the automobile embezzled by
appellant exceeded $200.  The Commonwealth disagreed and argued
that the word "feloniously" in the indictment indicated that the
charge was felony embezzlement.  For the sake of clarification,
the Commonwealth moved to amend the indictment pursuant to Code
 19.2-231 by adding the phrase "such automobile having a value
of $200.00 or more."  The trial court granted the Commonwealth's
motion and amended the indictment.  The trial court then asked
appellant's counsel if he intended to move for a continuance.
Appellant's counsel conferred with his client and responded by
saying, "Your Honor, we're prepared to go--we'll go forward
then."
    At the conclusion of the ensuing trial, a jury convicted
appellant of felony embezzlement and sentenced him to four years
in a state correctional facility.  Appellant subsequently filed a
petition to rehear the decision to amend the indictment, which
the trial court denied.
                                   II.
                  AMENDMENT OF THE INDICTMENT
    Appellant contends that the trial court erred when it
granted the Commonwealth's motion to amend the indictment because
the addition of the phrase "such automobile having a value of
$200.00 or more" changed the nature and character of the offense
charged in the indictment.  Appellant argues that the indictment
initially charged "misdemeanor" embezzlement and that the
amendment changed the nature of the charge to "felony"
embezzlement.  We disagree with appellant's interpretation of the
original indictment.
    An indictment is a written accusation of crime that is
initially prepared by a Commonwealth's attorney and returned "a
true bill" by a grand jury.  Code   19.2-216.  The function of an
indictment "is to give an accused notice of the nature and
character of the accusations against him in order that he can
adequately prepare to defend against his accuser."  Willis v.
Commonwealth, 10 Va. App. 430, 437-38, 393 S.E.2d 405, 409 (1990)
(citing Va Const. art. I,   8; Hairston v. Commonwealth, 2 Va.
App. 211, 213, 343 S.E.2d 355, 357 (1986)).  Indictments are
statutorily required to "be a plain, concise and definite written
statement, (1) naming the accused, (2) describing the offense
charged, (3) identifying the [jurisdiction] in which the accused
committed the offense, and (4) reciting [the date] that the
accused committed the offense . . . ."  Code   19.2-220.
    As a preliminary matter, we agree with appellant that Code
 18.2-111 establishes the statutory crime of embezzlement and
distinguishes between two grades of the offense:  "felony"
embezzlement and "misdemeanor" embezzlement.  The factor
delineating felony embezzlement from misdemeanor embezzlement is
whether or not the property embezzled equals or exceeds $200 in
value.  In Virginia, a felony is any offense that "is punishable
with death or confinement in a state correctional facility,"
while all other crimes are misdemeanors.  Code   18.2-8.
Regarding the punishment for embezzlement, Code   18.2-111 states
that "[e]mbezzlement shall be deemed larceny and upon conviction
thereof, the person shall be punished as provided in   18.2-95 or
 18.2-96."  Code   18.2-95 defines grand larceny in part as
"simple larceny not from the person of another of goods and
chattels of the value of $200 or more."  Code   18.2-95 also
states that grand larceny "is punishable by imprisonment in a
state correctional facility . . . ."  Code   18.2-95 (emphasis
added).  Code   18.2-96, on the other hand, defines petit larceny
in part as "simple larceny not from the person of another of
goods and chattels of the value of less than $200 . . . which
shall be punishable as a Class 1 misdemeanor."  (Emphasis added).
Thus, pursuant to Code   18.2-111, embezzlement is a felony when
the value of the property embezzled equals or exceeds $200
because this subjects the wrongdoer to the possibility of
punishment in a state correctional facility.  Code   18.2-95,
18.2-8.  Likewise, embezzlement is a misdemeanor when the value
of property embezzled is less than $200 because this crime is
only punishable under Code   18.2-96.
    We hold that, prior to the Commonwealth's motion to amend,
the indictment charged appellant with felony embezzlement.  "An
indictment is sufficient if it gives the accused 'notice of the
nature and character of the offense charged so he can make his
defense.'"  Satcher v. Commonwealth, 244 Va. 220, 231, 421 S.E.2d
821, 828 (1992) (citation omitted).  When considering the
sufficiency of an indictment to charge a particular offense on
appeal, we limit our scrutiny to the face of the document.  41
Am.Jur.2d Indictments and Informations   92 (1995).  We give the
indictment an objective, common sense construction, and its
validity is to be determined by practical, not technical,
considerations.  42 C.J.S. Indictments and Informations   79
(1991); cf. Jolly v. Commonwealth, 136 Va. 756, 762, 118 S.E.
109, 112 (1923) (holding that an indictment was valid despite
having a "formal defect" when the substance of the allegations
was clear).  Words are construed according to their plain,
ordinary meaning, unless they are otherwise specifically defined
by law.  42 C.J.S. Indictments and Informations   79; cf. Jolly,
136 Va. at 762, 118 S.E. at 112 (construing the allegations in an
indictment according to their clear, unequivocal meaning).  An
indictment "is sufficient unless it is so defective that by no
construction can it be said to charge the intended offense."  41
Am.Jur.2d Indictments and Informations   92.
    The face of the indictment sufficiently indicates that the
grand jury intended to charge appellant with felony embezzlement.
In particular, the indictment makes three allegations that, taken
together, support construing the indictment as a charge of felony
embezzlement.  The indictment alleged (1) that appellant
embezzled an "automobile," (2) that he did it "feloniously," and
(3) that he violated Code   18.2-111.  First, the reference to
Code   18.2-111 indicates the grand jury's intent to charge
appellant with some form of embezzlement.  However, because the
grade of embezzlement charged is determined by the value of the
property embezzled, this reference to Code   18.2-111, by itself,
does not indicate whether appellant was charged with a
misdemeanor or a felony.  
    Instead, the intent of the grand jury to charge felony
embezzlement is indicated by the inclusion of the word
"feloniously" in the indictment.  "Feloniously" is commonly
defined as "of, relating to, or having the quality of a felony."
Webster's Third New International Dictionary 836 (1968).  In
addition, until 1923, grand juries were required to use the word
"feloniously" in an indictment in order to properly charge a
defendant with a felony.  See Jolly, 136 Va. at 761, 118 S.E. at
111.  Although use of the word "feloniously" is no longer
mandatory, id. at 762, 118 S.E. at 111, the inclusion of it in an
indictment charging a statutory offense that may be defined as
either a felony or a misdemeanor indicates the intent of the
grand jury to charge the felony grade of the offense.
    We disagree with appellant's argument that the word
"feloniously" as used in the indictment was mere surplusage.  No
Virginia court has ever held that the use of the word
"feloniously" in an indictment is surplusage in all contexts.
Instead, the relevant case law indicates that courts apply a
non-technical, common sense approach to the interpretation of
indictments that requires reading the word "feloniously" together
with other information contained in the indictment.
    In Young v. Commonwealth, the indictment charged the
defendant with "feloniously" committing a statutory misdemeanor.
155 Va. 1152, 1154-55, 156 S.E. 565, 566 (1931).  The Virginia
Supreme Court held that the inclusion of the word "feloniously"
neither made the charge a felony nor invalidated the indictment
because the nature of the crime could be determined by reference
to the statute under which the defendant was charged.  Id. at
1155-56, 156 S.E. at 566.  The court also stated that in this
situation the word "feloniously" should be regarded as mere
surplusage.  Id. at 1156, 156 S.E. at 566, see also Meyers v.
Commonwealth, 148 Va. 725, 730, 138 S.E. 483, 484 (1927); Morris
v. Commonwealth, 145 Va. 880, 881-82, 134 S.E. 567, 568 (1926).
    In Jolly, the defendant was charged with a statutory felony,
but the indictment did not state that appellant had committed the
crime "feloniously."  136 Va. at 761, 118 S.E. at 111.  The
Supreme Court held that the absence of the word "feloniously" did
not invalidate the indictment because "the acts charged in the
indictment [were] sufficient to show that . . . the accused has
been charged with [a felony]."  Id. at 762, 118 S.E. at 111; see
also Staples v. Commonwealth, 140 Va. 583, 586, 125 S.E. 319, 320
(1924).  The Court also abrogated the common law rule that
required felony indictments to formally include the word
"feloniously."  Jolly, 136 Va. at 762, 118 S.E. at 111.
    Although these cases stand for the combined proposition that
an indictment is not rendered defective by the erroneous
inclusion or absence of the word "feloniously," these cases do
not hold that the word "feloniously," when used properly, is
wholly devoid of both its ordinary and common law meaning.  We
hold that when an indictment charges a statutory offense that is
capable of being classified as either a felony or a misdemeanor,
the use of the word "feloniously" is not surplusage.  Instead, it
indicates which grade of the offense is being charged.  In this
case, Code   18.2-111 impliedly states that the offense of
embezzlement can be either a misdemeanor or a felony.  Thus, the
inclusion of the word "feloniously" in appellant's indictment
indicated the grand jury's intent to charge the felony grade of
embezzlement.
    Because we conclude that the original indictment charged
appellant with felony embezzlement, we hold that the trial court
did not err when it permitted the Commonwealth's amendment.  Code
 19.2-231 authorizes a trial court "to amend an indictment at
any time before the verdict is returned or a finding of guilt is
made, provided that the amendment does not change the nature or
character of the offense charged."  Cantwell v. Commonwealth, 2
Va. App. 606, 608, 347 S.E.2d 523, 524 (1986).  In this case,
appellant was charged with felony embezzlement both prior to and
after the trial court amended the indictment by adding the phrase
"such automobile having a value of $200.00 or more."  Although
the Commonwealth's amendment more clearly described the
automobile allegedly embezzled by appellant, it did not change
the nature or character of the offense charged.  
    Also, because the grand jury initially indicted appellant
for felony embezzlement, we need not consider appellant's other
statutory and constitutional arguments.
              For the foregoing reasons, we affirm the conviction of
felony embezzlement.
                                                       Affirmed.               

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