COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Bumgardner 

Argued at Richmond, Virginia 

GEORGE SMITH ALSTON 

 OPINION BY 

v. Record No. 1822-99-2 JUDGE RICHARD S. BRAY 

 JUNE 20, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Patricia P. Nagel, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Amy L. Marshall, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

 George Smith Alston (defendant) was convicted, in a bench 

trial, of arson in violation of Code § 18.2-77. On appeal, he 

challenges the sufficiency of the evidence to establish the 

offense charged in the indictment. Finding that the unproven 

allegation of the indictment, the ownership of the premises, was 

mere surplusage, we affirm the conviction. 

I. 

 Guided by familiar principles, we consider the record "'in 

the light most favorable to the Commonwealth, giving it all 

reasonable inferences fairly deducible therefrom. In so doing, 

we must discard the evidence of the accused in conflict with 

that of the Commonwealth, and regard as true all the credible 
evidence favorable to the Commonwealth . . . .'" Watkins v. 

Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 856, 866 (1998) 

(citation omitted). 

 On March 18, 1999, Mary Mitchell, together with her mother, 

brother and son, returned from church to a residential dwelling 

occupied by the four in the city of Richmond. Defendant, then 

"living in and out" of the home, was present when the family 

arrived. Shortly thereafter, Mitchell discovered that "sodas" and 

"hamburger" were missing and "confronted" defendant, prompting an 

argument that culminated with Mitchell ordering defendant from the 

house. Defendant "left in an angered manner" and, once outside, 

was seen "walking up and down" a nearby street. "[A]bout 15 

minutes" later, Mitchell's brother discovered a fire in the 

"downstairs" area of the home, alerted the others, and everyone 

escaped through the "back entrance." 

 Moments prior to the fire, Kenneth Jones, a neighbor "across 

the street," observed defendant "kneel down" "beside the 

[Mitchell] residence," rise and "all of the sudden a blaze of fire 

comes out." As Jones ran "towards the fire," defendant "just 

stood right there . . . and . . . walked away." After Jones 

extinguished the fire with "dirt and mud," he noticed defendant 

"peep back around the corner," and alerted a "correctional 

officer," then also at the scene. As the two men approached 

defendant, he fled, but Jones pursued and apprehended him for 

police. 

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 Richmond Police Detective Michael J. Wyatt, an expert "in the 

nature of arson and the nature and cause and origin of fires," 

testified that his investigation of the fire disclosed that the 

cause was neither "electrical" nor "mechanical," but "incendiary 

in nature," a fire which "has to be set." 

 The subsequent indictment of defendant, as amended, alleged 

that 

[o]n or about March 18, 1999, in the City of 

Richmond, [he] did feloniously, unlawfully 

and maliciously burn[], or by use of 

explosive device destroy[] an occupied 

dwelling or manufactured home, belonging to 

Joseph O'Brian. Virginia Code Section 

18.2-77. 

(Emphasis added.) Defendant argues on appeal that the evidence 

failed to prove that the "dwelling . . . belong[ed] to Joseph 

O'Brian, resulting in a fatal variance between an allegation of 

the indictment and the requisite proof" to support the 

conviction. 

II. 

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

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

accusation against him." Hairston v. Commonwealth, 2 Va. App. 

211, 213, 343 S.E.2d 355, 357 (1986); see Code § 19.2-220. "It 

is elementary that what need not be proved need not be alleged," 

although "sometimes [the indictment] alleges something that 

. . . was not necessary to allege," requiring proof of "what 

. . . has [been] alleged unless the unnecessary allegation can 

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be rejected as surplusage." Mitchell v. Commonwealth, 141 Va. 

541, 555, 127 S.E. 368, 373 (1925). "'If the unnecessary word 

or words . . . in the indictment describe, limit or qualify the 

words which it was necessary to insert therein, then they are 

descriptive of the offense charged in the indictment and cannot 

be rejected as surplusage.'" Hairston, 2 Va. App. at 214-15, 

343 S.E.2d at 357 (quoting Mitchell, 141 Va. at 560, 127 S.E. at 

374). However, to become indispensable, "the unnecessary 

language must have a material effect on the offense charged and 

on the proof required to convict under that charge." Id. at 

217, 343 S.E.2d at 359 (emphasis added). 

 Here, the indictment charged defendant with a violation of 

Code § 18.2-77(A), which provides, in pertinent part, "[i]f any 

person maliciously (i) burns, or by use of any explosive device 

or substance destroys, in whole or in part, or causes to be 

burned or destroyed, . . . any dwelling house . . . whether 

belonging to himself or another, . . . he shall be guilty of a 

felony, punishable" as prescribed by the statute.1 (Emphasis 

added.) "[T]he term 'dwelling house'" has been defined, in the 

context of Code § 18.2-77, as "a place which human beings 

regularly use for sleeping." Marable v. Commonwealth, 27 Va. 

App. 505, 513, 500 S.E.2d 233, 237 (1998) (citing Rash v. 

Commonwealth, 9 Va. App. 22, 26-27, 383 S.E.2d 749, 751 (1989)). 

 1

 Code § 18.2-77(B) provides for a reduced penalty "when 

such building . . . is unoccupied." 

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Thus, to prove the dwelling house element of Code § 18.2-77(A), 

the Commonwealth need not establish ownership of the premises, 

only routine habitation. 

 Defendant acknowledges that "it may not have been necessary 

to allege in the instant indictment whose house was burned," but 

relies upon Etheridge v. Commonwealth, 210 Va. 328, 171 S.E.2d 

190 (1969), in support of his contention that, once charged, 

such proof was necessary to a conviction. In Etheridge, the 

indictment alleged that the accused "did unlawfully, feloniously 

and maliciously shoot at or into a dwelling house, to-wit: the 

residence of Edna Harper located at Route 2, Box 224, Galbush 

Road, Chesapeake, Virginia," a violation of former Code 

§ 18.1-152. Id. at 329, 171 S.E.2d at 191 (emphasis added). 

However, the evidence at trial established that Edna Harper, 

although present in the dwelling at the time of the offense, 

resided elsewhere. See id. In reversing the conviction, the 

Court concluded that the Commonwealth "chose to specify" the 

dwelling house "or residence involved as that of Edna Harper," a 

description of "that which was necessary to be alleged" that 

"cannot . . . be treated as surplusage." Id. at 329-30, 171 

S.E.2d at 191-92. 

 In contrast, the subject indictment makes no reference to 

the resident or residents of the subject dwelling house, but, 

instead, specifies only the owner of the property, an 

unnecessary allegation. The language in Etheridge, "the 

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residence of Edna Harper," modified "words . . . necessary to" 

the indictment, dwelling house, which requires habitation or 

residency, by definition, and, therefore, could not "be rejected 

as surplusage." Hairston, 2 Va. App. at 214, 215, 343 S.E.2d at 

357, 357. The extraneous language now before the Court 

qualified ownership, a circumstance immaterial to the offense 

and clearly unnecessary to a successful prosecution of the 

indictment. 

 Accordingly, we find the evidence sufficient to prove the 

offense charged in the indictment and affirm the conviction. 

 Affirmed.

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