Present: All the Justices 

LATASHA GARDNER, 

s/k/a LATASHA ALON GARDNER 

 OPINION BY 

v. Record No. 002143 CHIEF JUSTICE HARRY L. CARRICO 

 June 8, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 On December 21, 1998, a grand jury in the Circuit Court of the 

City of Charlottesville indicted the defendant, Latasha Alon 

Gardner, for obtaining by false pretenses United States currency of 

a value greater than $200.00, "the property of George Gardner," 

with the intent to defraud him. Code § 18.2-178.1 The trial court, 

sitting without a jury, convicted the defendant of the charge and 

sentenced her to serve three years in the penitentiary. The Court 

of Appeals affirmed the conviction. Gardner v. Commonwealth, 32 

Va. App. 595, 529 S.E.2d 820 (2000). We awarded the defendant this 

appeal to consider the question whether a fatal variance exists 

between the indictment’s allegation that the money was the property 

of George Gardner and evidence which, according to the defendant, 

shows that the money was the property of the bank from which it was 

obtained. 

 

1

 Code § 18.2-178 provides as follows: 

If any person obtain, by any false pretense or token, from any 

person, with intent to defraud, money or other property which 

may be the subject of larceny, he shall be deemed guilty of 

larceny thereof; or if he obtain, by any false pretense or 

token, with such intent, the signature of any person to a 

writing, the false making whereof would be forgery, he shall 

be guilty of a Class 4 felony. 
2

 The defendant is the granddaughter of George Gardner. He 

maintained a savings account at a Charlottesville branch of 

Wachovia Bank. On May 1, 1998, the defendant went to the branch 

and presented to a teller a withdrawal slip for $725.00 ostensibly 

signed by George Gardner and stating that “Latasha is allowed to 

receive and sign this [withdrawal slip].” The teller paid the 

defendant $725.00 in cash. 

 In fact, George Gardner had not signed the withdrawal slip, 

and he had not given the defendant permission to sign his name. 

When arrested on a warrant charging her with obtaining the money by 

false pretenses, the defendant admitted she had signed her 

grandfather’s name to the withdrawal slip, but insisted she had 

signed it with his permission. 

 Before the bank charged the grandfather’s account with the 

amount of the withdrawal, it learned that the defendant was not 

authorized to make the withdrawal. The grandfather’s account “was 

not debited with this seven hundred and twenty-five dollars,” and 

the bank was “out the money.” 

 The defendant argues on appeal that because the Commonwealth 

pled an offense of larceny by false pretenses from the defendant’s 

grandfather but proved a different offense of larceny by false 

pretenses from a bank, there was a fatal variance. Quoting Bennet 

v. First & Merchants Nat’l Bank, 233 Va. 355, 355 S.E.2d 888 

(1987), the defendant states as follows: 
3

The relationship between a financial institution and its 

depositor is that of debtor and creditor. The funds become 

the property of the bank immediately on deposit, and the bank 

becomes the debtor of the depositor. 

Id. at 360, 355 S.E.2d at 890-91. See also Bernardini v. Central 

Nat'l Bank, 223 Va. 519, 521, 290 S.E.2d 863, 864 (1982); Federal 

Reserve Bank v. State & City Bank & Trust Co., 150 Va. 423, 430-31, 

143 S.E. 697, 699 (1928). In this relationship, the defendant 

says, the bank never promises to return any specific pieces of 

paper constituting United States currency but only promises to 

return an equivalent amount to the depositor. And, the defendant 

continues, citing Central Nat’l Bank v. First & Merchants Nat’l 

Bank, 171 Va. 289, 303, 198 S.E. 883, 888 (1938), the bank has no 

right to debit the depositor’s account based upon an unauthorized 

withdrawal. It is plain, therefore, the defendant maintains, that 

there was a variance between the pleading and the proof in this 

case and that the variance was fatal. 

 The Commonwealth acknowledges the rule stated in Bennet that 

“a depositor’s ‘funds become the property of the bank immediately 

on deposit, and the bank become[s] the debtor of the depositor.’ ” 

The Commonwealth also acknowledges the rule stated in Central Nat’l 

Bank that “ ‘a depositor’s funds in a bank are unaffected by any 

unauthorized payment.’ ” The Commonwealth argues, however, that 

these cases only “delineate the contractual relationship between a 

bank and its depositor” and “do not require a finding in this case 

that the bank can be the only victim.” 
4

 The Commonwealth says that it “need only prove the victim 

alleged in the indictment has a legal interest in the property 

stolen.” The Commonwealth cites Latham v. Commonwealth, 184 Va. 

934, 940, 37 S.E.2d 36, 38-39 (1946), and Catterton v. 

Commonwealth, 23 Va. App. 407, 410-11, 477 S.E.2d 748, 750 (1996), 

in support. Both cases are inapposite. They stand for the 

proposition that for purposes of proving larceny, ownership may be 

laid either in the true owner or in a bailee. However, a general 

deposit in a bank is “not a bailment.” Pendleton v. Commonwealth, 

110 Va. 229, 234, 65 S.E. 536, 538 (1909). 

 The Commonwealth cites several other cases: United States v. 

Mitchell, 625 F.2d 158 (7th Cir. 1980); United States v. Pavloski, 

574 F.2d 933 (7th Cir. 1978); Quidley v. Commonwealth, 221 Va. 963, 

275 S.E.2d 622 (1981); and Bateman v. Commonwealth, 205 Va. 595, 

139 S.E.2d 102 (1964). All are inapposite. 

Mitchell involved a prosecution under 18 U.S.C. § 641, which 

proscribes the conversion of money or a thing of value of the 

United States. The defendant was charged with attempting to 

convert a stolen Illinois Public Aid warrant. He claimed that the 

warrant was not money or a thing of value of the United States 

within the meaning of § 641. However, approximately 50% of the 

money in the account on which the warrant was drawn was granted to 

the state by the federal government, the relevant statute and 

regulations contemplate that ultimate repayment would be made to 

the federal government, and while the money was in state hands it 
5

was subject to substantial federal supervision and control. Hence, 

“the warrant retained by the [defendant] with the intent to convert 

it to his own use was a ‘thing of value of the United States.’ ” 

625 F.2d at 161. We fail to see how the decision in Mitchell would 

support a finding here that the grandfather, and not the bank, was 

the owner of the money the defendant fraudulently withdrew. 

Pavloski involved a union treasurer who forged the name of the 

union president on checks Pavloski presented to the bank for 

payment. The bank honored the checks, paid Pavloski, and debited 

the union’s account. Pavloski said the forgeries did not 

constitute embezzling union funds but rather conversion of funds of 

the bank. He relied on the commercial law doctrine that a drawee 

bank pays its own funds, not those of the depositor, when it honors 

a forged check. The court disagreed, stating that union funds were 

converted to Pavloski’s use when the bank debited the account of 

the union and that the fact “these reductions in funds were 

temporary would not exonerate Pavloski from liability.” 574 F.2d 

at 936. Here, however, as has been noted, the bank did not debit 

the grandfather’s account with the amount the defendant obtained 

with the forged withdrawal slip. 

 In Quidley, the accused, an employee of the Norfolk Social 

Service Bureau, using a forged purchase order, obtained various 

items of clothing from J. C. Penney Company, ostensibly for a 

welfare recipient, and converted the goods to her own use. The 

Penney Company ultimately received full payment for the clothing 
6

from the City of Norfolk Public Assistance Fund. Indicted for 

obtaining clothing belonging to J. C. Penney Company by false 

pretenses and convicted of the offense, the accused claimed that a 

fatal variance existed between the indictment and the proof because 

the evidence showed the Penney Company received payment for the 

goods and the property, therefore, was defrauded from the social 

service bureau or the welfare recipient. We disagreed. We said 

that the offense was complete at the instant the accused obtained 

ownership of the goods through use of the fraudulent documents and 

that it was irrelevant that the Penney Company suffered no loss. 

221 Va. at 966, 275 S.E.2d at 625. Of course, until the instant 

the accused obtained the goods, they remained in the ownership of 

the Penney Company, just as the money involved in this case 

remained in the ownership of the bank until the instant the 

defendant obtained ownership through her use of the forged 

withdrawal slip. And, just as the Penney Company was the obvious 

victim of the fraud in Quidley, the bank is the obvious victim of 

the fraud here. 

 In Bateman, the accused raised the amounts of several checks 

after they were drawn by his friend, Jerry H. Adams, and cashed the 

checks in the raised amounts at the drawee bank. The accused was 

tried on separate counts alleging he obtained money by false 

pretenses from the drawer of the checks and from the bank that 

cashed the checks. He was found guilty on the counts involving the 

drawer of the checks and not guilty on the counts involving the 
7

bank. However, no argument was made in the case that the accused 

could not be convicted of obtaining the money of Adams by false 

pretenses because the money was the property of the bank. 

Furthermore, we said that “[t]he fraud was practiced on Adams” 

because the bank, when it cashed the checks, “paid out the money 

from the account of Adams deposited in the bank.” 205 Va. at 600, 

139 S.E.2d at 106. In other words, unlike the situation here, the 

bank debited Adams’ account with the amounts of the forged checks. 

 Finally, the Commonwealth cites Code § 19.2-2842 as standing 

for the proposition that “when the charge is a larceny offense, as 

long as the alleged victim of the offense as stated in the 

indictment has an interest in the property, a conviction is 

sustainable.” The Commonwealth then states: “Here, even though 

for contract purposes the defendant’s grandfather’s funds became 

property of the bank, he still retained a legal interest in those 

funds as creditor; the money had to be paid to him on demand. 

Fed’l Reserve Bank v. State & City Bank & Trust Co., 150 Va. 423, 

430, 143 S.E. 697, 699 (1928).” 

 

2

 Code § 19.2-284 provides as follows: 

In a prosecution for an offense committed upon, relating to or 

affecting real estate, or for stealing, embezzling, 

destroying, injuring or fraudulently receiving or concealing 

any personal estate it shall be sufficient to prove that when 

the offense was committed the actual or constructive 

possession, or a general or special property, in the whole or 

any part of such estate was in the person or entity alleged in 

the indictment or other accusation to be the owner thereof. 
8

 This whole argument fails, however, upon an examination of 

the actual language this Court employed in the Federal Reserve

case. The Court did not use language supporting the proposition 

that “the money had to be paid to [the grandfather] on demand.” 

What the Court said was this: “In [the relation of debtor and 

creditor between a bank and a customer] the customer or depositor 

has the right to demand of the bank an equivalent amount of money, 

but not the specific coins or other currency deposited.” Id. 

(Emphasis added.) And, under the circumstances of this case, that 

right does not amount to an interest sufficient to sustain a 

conviction on a charge of larceny from the grandfather by false 

pretenses. We conclude, therefore, that a variance exists in this 

case between the allegations of the indictment and the proof 

produced at trial. 

 The Commonwealth argues, however, that the variance is not 

fatal. Citing Mitchell v. Commonwealth, 141 Va. 541, 127 S.E. 368 

(1925), and Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 

355 (1986), the Commonwealth says “[t]he general rule in Virginia 

is that, if an allegation in an indictment may be wholly stricken 

out and still leave the indictment sufficiently intact, it may be 

rejected as surplusage.” Here, the Commonwealth asserts, “the 

phrase ‘the property of George Gardner’ certainly could be stricken 

and the allegations of the remainder of the indictment would be 

sufficient, because it would be following the wording of the 

statute.” 
9

 However, as this Court stated in Barker v. Commonwealth, 4 Va. 

(2 Va. Cas.) 122 (1817): “[T]he laying in an Indictment for 

larceny, to whom the thing stolen did belong . . . is [a] matter of 

substance, and may be very important to the accused, both in making 

his defence, and upon a plea of auterfoits acquit, or convict.” 

Id. at 126. And, as we said in Mabry v. Commonwealth, 4 Va. (2 Va. 

Cas.) 396, 398 (1824): “It is true, that the goods stolen must be 

alleged, in the Indictment, to be in some one, known or unknown; 

and, that the proof must correspond with the allegation.” 

 Furthermore, even if it be assumed that the phrase “the 

property of George Gardner” was unnecessary, the result is the 

same. We stated in Mitchell: 

If the unnecessary word or words inserted 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. The offense as charged must be proved. 

141 Va. at 560, 127 S.E. at 374. When the Commonwealth added the 

phrase “the property of George Gardner” to the indictment, it 

described, limited, and qualified what was necessary to be alleged, 

and the added language cannot, therefore, be treated as surplusage. 

Etheridge v. Commonwealth, 210 Va. 328, 171 S.E.2d 190 (1969), 

is closely analogous to the present situation. There, the 

indictment charged the accused with shooting into the residence of 

Edna Harper but the evidence showed the accused shot into the 

dwelling of Alberta Riddick. We reversed the conviction, stating 

as follows: 
10

 We agree with the defendant that a fatal variance existed 

between the allegations of the indictment and the proof of the 

crime. While it may not have been necessary under the statute 

to allege whose residence was fired into, when the 

Commonwealth chose to specify the residence involved as that 

of Edna Harper, it had the burden of establishing that fact. 

And when the Commonwealth showed that it was the residence of 

Alberta Riddick where the shooting occurred, it proved a 

different offense. 

Id. at 330, 171 S.E.2d at 191-92. Here, when the Commonwealth 

alleged in the indictment that the money obtained by the defendant 

was the property of George Gardner but the evidence showed the 

money was the property of the bank, it proved a different offense, 

resulting in a fatal variance. 

 Accordingly, we will reverse the judgment of the Court of 

Appeals, vacate the judgment of the trial court, and dismiss the 

indictment. 

Reversed and dismissed. 

JUSTICE KINSER, dissenting. 

 Because I agree with the conclusion of the Court of Appeals 

that no variance existed between the indictment charging Latasha 

Gardner with obtaining money by false pretenses in violation of 

Code § 18.2-178 and the proof offered at trial, Gardner v. 

Commonwealth, 32 Va. App. 595, 600, 529 S.E.2d 820, 822 (2000), I 

respectfully dissent. 

This Court has stated on more than one occasion that the 

elements of the crime of larceny by false pretense are “an intent 

to defraud, an actual fraud, use of false pretenses for the purpose 

of perpetrating the fraud, and accomplishment of the fraud by means 
11

of the false pretenses used for that purpose.” Quidley v. 

Commonwealth, 221 Va. 963, 965, 275 S.E.2d 622, 624 (1981) (citing

Riegert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 807 

(1977)). In the present case, the Commonwealth proved each of 

these elements beyond a reasonable doubt. 

 The defendant went to a branch office of Wachovia Bank and 

presented a withdrawal slip ostensibly signed by the defendant’s 

grandfather. Based on that withdrawal slip, the defendant received 

$725 in cash. However, the defendant’s grandfather had not signed 

the withdrawal slip authorizing the defendant to receive the funds 

nor had he given the defendant permission to sign his name to the 

withdrawal slip. 

 Nevertheless, the majority concludes that, because the money 

received by the defendant was the property of the bank, see Bennet 

v. First & Merchants Nat’l Bank, 233 Va. 355, 360, 355 S.E.2d 888, 

890-91 (1987), a fatal variance existed between the indictment and 

the proof offered at trial. In reaching this conclusion, the 

majority focuses solely on the debtor-creditor relationship between 

a financial institution and its depositor. Although I do not 

dispute that, when funds are deposited in a bank, the funds become 

the property of the bank, see id., I do not believe that the 

Commonwealth proved a different offense from the one alleged in the 

indictment. 

 When the bank paid cash to the defendant in accordance with 

the withdrawal slip, the bank believed that it was paying funds 
12

from the grandfather’s account and accepted the withdrawal slip as 

a debit to that account. Although the bank ultimately did not 

debit the grandfather’s account when it learned of the defendant’s 

fraud, see Code § 8.4-213(1)(c), that fact does not create a fatal 

variance in this case. “[T]here is no requirement that the 

intended victim suffer actual pecuniary loss[,]” nor is “the 

offense . . . purged by ultimate restoration or payment to the 

victim.” Quidley, 221 Va. at 966, 275 S.E.2d at 625. 

In Martin v. State, 614 S.W.2d 512 (Ark. 1981), the defendant 

cashed several counterfeit checks drawn on the account of A. 

Tenenbaum Company, Inc., at separate branches of a bank. The bank 

initially debited the checks against Tenenbaum’s account but 

credited the funds back to the account after learning that the 

checks were counterfeit. Id. at 513. On appeal, the defendant 

alleged that the information charging him with theft of property 

was defective because “the property in question, i.e., the money 

received from the bank upon presentment of the checks, was not in 

fact the property of A. Tenenbaum Company as alleged in the 

information.” Id. The court disagreed, noting that the monies 

paid out on the counterfeit checks belonged to A. Tenenbaum 

Company. Id. at 514. The court further stated that “[t]he fact 

that under the law the bank is liable to its customer when it 

cashes a forged instrument does not alter the initial character of 

the crime of theft. It is the ownership at the time the offense 
13

occurs that should be looked to, not who ultimately bears the 

loss.” Id.

In distinguishing the decision in United States v. Pavloski, 

574 F.2d 933 (7th Cir. 1978), from the present case, the majority 

relies on the fact that, in Pavloski, the bank initially debited 

its customer’s account although the court stated that “these 

reductions in funds were temporary[,]” id. at 936, whereas the bank 

in the present case never debited the grandfather’s account. I do 

not believe that the pivotal factor should be whether a bank 

initially debits its customer’s account but later credits the funds 

back to the customer, or never debits the account because the bank 

learns of the fraud before the debit transaction is completed. In 

either event, the bank suffers the pecuniary loss even though it is 

not the intended victim. But, the crime of larceny by false 

pretenses is not “purged by ultimate restoration or payment to the 

victim.” Quidley, 221 Va. at 966, 275 S.E.2d at 625. 

As the Court of Appeals stated, the issue in this case “is not 

the abstract nature of the bank’s underlying civil liability to 

[the defendant’s] grandfather[,]” but rather the transaction 

engaged in by the defendant. Gardner, 32 Va. at 599-600, 529 

S.E.2d at 822. The crime of larceny by false pretenses is complete 

“when the fraud intended is consummated by obtaining the property 

sought by means of the false representations[.]” Quidley, 221 Va. 

at 966, 275 S.E.2d at 625. In this case, that occurred at the 

moment when the defendant obtained the money by using the 
14

fraudulent withdrawal slip. Furthermore, the defendant makes no 

showing that she was prejudiced or surprised by the proof offered 

at trial or that the indictment failed to give her fair notice of 

the nature of the charge pending against her. 

 For these reasons, I respectfully dissent and would affirm the 

judgment of conviction.