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. 
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 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 
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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 
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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," 

 

 1Code § 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. 
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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 
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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 
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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 
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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. 
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 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 
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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.