COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Benton and 

 Senior Judge Overton 

Argued at Alexandria, Virginia 

RICHARD WAYNE NUCKLES 

 MEMORANDUM OPINION* BY 

v. Record No. 2570-01-4 JUDGE NELSON T. OVERTON 

 NOVEMBER 5, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WARREN COUNTY 

Dennis L. Hupp, Judge 

 Michael V. Greenan for appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Richard Wayne Nuckles, appellant, appeals his felony 

conviction of grand larceny, a violation of Code § 18.2-95(ii). 

Appellant contends the evidence was not sufficient to prove the 

owner of the goods was a corporate entity as alleged in the 

indictment. We agree and, therefore, reverse the conviction. 

BACKGROUND

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

(citation omitted). 

 The indictment charged that "[o]n or about November 8, 

1998, . . . [appellant] did unlawfully and feloniously take, 

steal, and carry away the goods and chattels of Breeden 

Mechanical Inc., in violation of Section 18.2-95 of the Code of 

Virginia . . . ." Donnie Knight testified that he worked for 

"Breeden Mechanical" for thirty-two years and supervised 

appellant. "Breeden Mechanical" employed appellant as a plumber 

and issued appellant a truck that was outfitted with tools, a 

toolbox, an acetylene rig, and a generator. When appellant left 

his employment, he failed to return the truck and equipment. 

"Breeden Mechanical" employees later retrieved the truck but the 

tools and equipment were gone. No evidence established whether 

"Breeden Mechanical" was a corporate entity, and Knight 

testified he was not a corporate officer. 

ANALYSIS

 Appellant contends that because the indictment specifically 

identified the owner of the property as "Breeden Mechanical Inc.," 

the Commonwealth was required to prove the corporate status of the 

business entity. No evidence established that "Breeden 

Mechanical" was the corporation identified as the victim in the 

indictment. 

- 2 -
 "'[T]he function of an indictment . . . is to give an accused 

notice of the nature and character of the accusations against him 

in order that he can adequately prepare to defend against his 

accuser.'" Griffin v. Commonwealth, 13 Va. App. 409, 411, 412 

S.E.2d 709, 711 (1991) (citation omitted). "By statute, an 

indictment may use the name given to the offense by the common law 

or may state as much of the common law definition of the offense 

as is sufficient to advise what offense is charged. Code 

§ 19.2-220." Hairston v. Commonwealth, 2 Va. App. 211, 213-14, 

343 S.E.2d 355, 357 (1986). In a grand larceny proceeding, the 

Commonwealth is also required to identify the owner of the 

property in the indictment. Code § 19.2-284. 

No indictment will be deemed invalid for the 

insertion of any other words or surplusage. 

Code § 19.2-226(9). Notice to the accused of 

the offense charged against him is the 

rockbed requirement which insures the accused 

a fair and impartial trial on the merits and 

form the key to the fatal variance rule. 

Hairston, 2 Va. App. at 214, 343 S.E.2d at 357. "'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.'" Etheridge v. Commonwealth, 210 Va. 

328, 330, 171 S.E.2d 190, 192 (1969) (quoting Mitchell v. 

Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925)). 

- 3 -
Thus, when the indictment alleges one person owned the property 

and the proof established the property was owned by another 

person, a fatal variance results. Gardner v. Commonwealth, 262 

Va. 18, 546 S.E.2d 686 (2001). 

 The owner of the stolen property is legally essential to 

charge in the indictment. Hughes v. Commonwealth, 58 Va. (17 

Gratt.) 565 (1867). The Commonwealth identified the owner as 

"Breeden Mechanical Inc." Use of the term "Inc." has legal 

meaning and significance. The Commonwealth either wrongly 

identified the entity as a corporation or it failed to prove 

that "Breeden Mechanical" was a corporation. In either case, 

the term "Inc." cannot be dismissed as surplusage because it 

described, limited, and qualified that which was necessary to 

charge. Thus, the Commonwealth failed to prove beyond a 

reasonable doubt that appellant stole property belonging to 

Breeden Mechanical Inc. 

 Accordingly, for the above stated reasons, the judgment of 

the trial court is reversed and the indictment dismissed. 

 Reversed and dismissed. 

- 4 -