                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


JOHN A. HENDRIX
                                        MEMORANDUM OPINION * BY
v.           Record No. 0625-96-1        JUDGE RICHARD S. BRAY
                                            MARCH 18, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Von L. Piersall, Jr., Judge
             Brenda C. Spry, Deputy Public Defender
             (Office of the Public Defender, on brief),
             for appellant.

             Linwood T. Wells, Jr., Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellee.



     John A. Hendrix (defendant) was indicted for grand larceny

pursuant to Code § 18.2-95 and convicted in a bench trial for

larceny of a firearm in violation of Code § 18.2-108.1(1).    On

appeal, he contends that the trial judge erroneously ruled that

Code § 18.2-108.1(1) was a lesser included offense of Code

§ 18.2-95.    We agree and reverse the conviction.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     The subject indictment charged defendant with larceny of

property "having a value of $200.00 or more, . . . [i]n violation

of § 18.2-95," and the evidence established the theft of three
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
pistols and a "pellet gun."    At the conclusion of the

Commonwealth's case, defendant moved to strike, arguing that the

evidence failed to prove the requisite value of the stolen

property.    Relying upon the proscriptions of Code § 18.2-108.1,

the prosecutor countered that, irrespective of value, the crime

"would be still be grand larceny except it would be Class Six as

opposed to the other class of grand larceny."    The court

"sustain[ed] [defendant's] motion as to the charge of grand

larceny [under Code § 18.2-95] but . . . allow[ed] the case to go

forward" on larceny of a firearm in violation of Code
§ 18.2-108.1.   Defendant objected, reminding the court that he

had been indicted under Code § 18.2-95, not § 18.2-108.1.    The

court, however, ruled that Code § 18.2-108.1 was a lesser

included offense of Code § 18.2-95.

     On appeal, the Commonwealth concedes, quite correctly, that

Code § 18.2-108.1(1) is not a lesser included offense of Code

§ 18.2-95.   It urges instead that the trial judge implicitly

amended the indictment to charge a violation of Code

§ 18.2-108.1(1).

     An indictment is "a written accusation of a crime . . .

intended to inform the accused of the nature and cause of the

accusation against him.    Notice to the accused of the offense

charged against him assures the accused a fair and impartial

trial on the merits."     Marlowe v. Commonwealth, 2 Va. App. 619,

625, 347 S.E.2d 167, 171 (1986) (citation omitted); see Va.



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Const. art. I, § 8; Code § 19.2-220; Rule 3A:6(a).    "'The accused

cannot be convicted unless the evidence brings him within the

offense charged in [the] indictment. . . .    [T]he indictment must

charge [either] the very offense for which a conviction is

asked,'" Williams v. Commonwealth, 8 Va. App. 336, 341, 381

S.E.2d 361, 364 (1989) (quoting Mitchell v. Commonwealth, 141 Va.

541, 553, 127 S.E. 368, 372 (1925)), or a lesser included

offense.    See Walker v. Commonwealth, 12 Va. App. 438, 443-44,

404 S.E.2d 394, 396 (1991) (citing Ashby v. Commonwealth, 208 Va.
443, 444-45, 158 S.E.2d 657, 658 (1968), cert. denied, 393 U.S.

1111 (1969)).    These same principles apply to an amended

indictment.     See Willis v. Commonwealth, 10 Va. App. 430, 437-38,

393 S.E.2d 405, 408-09 (1990).

     Code § 19.2-231 permits an amendment to an indictment "in

two instances:    where there is a defect in form, or where there

is a variance between the allegations and the evidence, provided

the amendment does not change the nature or character of the

offense charged."     Willis, 10 Va. App. at 437, 393 S.E.2d at 408.

Such amendment may occur "at any time before the verdict is

returned or a finding of guilt is made," Cantwell v.

Commonwealth, 2 Va. App. 606, 608, 347 S.E.2d 523, 524 (1986),

whereupon "the accused shall be arraigned on the [amended]

indictment [and] . . . allowed to plead anew thereto, if he so

desires."   Code § 19.2-231.   If the trial court finds that the

amendment operates as a surprise to the accused, "[the accused]




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shall be entitled, upon request, to a continuance of the case for

a reasonable time."   Willis, 10 Va. App. at 438, 393 S.E.2d at

409; see Crawford v. Commonwealth, 23 Va. App. 661, 479 S.E.2d 84

(1996) (en banc).

     Here, the trial judge concluded that the Commonwealth's

evidence did not sufficiently establish the requisite elements of

the offense at indictment.   Assuming, without deciding, that an

amendment of such indictment to charge an offense consistent with

the evidence would have then been appropriate, no amendment,

implicit or otherwise, is reflected in the record.   Neither the

prosecutor nor the trial court made mention of amendment, and

defendant was not re-arraigned, with an attendant opportunity to

"plead anew" pursuant to Code § 19.2-231.   Instead, the court

proceeded to conviction upon the incorrect theory that Code

§ 18.2-108.1(1) was a lesser included offense of Code § 18.2-95.
     Accordingly, we reverse the conviction.

                                         Reversed and dismissed.




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