                     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.




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                  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



                                  -2-
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




                                 -3-
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. 1    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,"

     1
      Code § 18.2-111 states in relevant part that:

           If any person wrongfully and fraudulently
           use, dispose of, conceal or embezzle any
           . . . personal property, tangible or
           intangible, . . . which shall have been
           entrusted or delivered to him by another
           . . . he shall be guilty of embezzlement.
           Embezzlement shall be deemed larceny and
           upon conviction thereof, the person shall
           be punished as provided in § 18.2-95 or
           § 18.2-96.




                                -4-
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




                                 -5-
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




                                -6-
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



                                 -7-
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.




                                 -8-
     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




                               -9-
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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