COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Bray, 

 Annunziata, Bumgardner, Frank, Humphreys, Clements and 

 Agee 

Argued at Richmond, Virginia 

CHRISTOPHER BRUHN 

 OPINION BY 

v. Record No. 0818-00-2 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 26, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

UPON A REHEARING EN BANC 

 John G. Douglass (James S. Yoffy; T.C. 

Williams School of Law; Brenner, Evans & 

Yoffy, on brief), for appellant. 

 Amy L. Marshall, Assistant Attorney General 

(Randolph A. Beales, Acting Attorney 

General; Eugene Murphy, Assistant Attorney 

General, on brief), for appellee. 

 On April 24, 2001, a unanimous panel of this Court reversed 

the conviction of appellant, Christopher Bruhn, for grand 

larceny. The panel found the evidence insufficient to 

demonstrate that Bruhn committed larceny in violation of Code 

§ 18.2-95, the only crime charged in the indictment, because it 

failed to prove the victim ever possessed the alleged stolen 

property. Furthermore, the panel rejected the Commonwealth's 

argument that proof of embezzlement is sufficient to sustain a 

conviction under an indictment for grand larceny. We stayed the 
mandate of that decision and reinstated the appeal. Upon 

rehearing en banc, we reverse the conviction and dismiss the 

indictment. 

I. 

PROCEDURAL HISTORY

 On February 2, 2000, Bruhn was tried under an indictment 

charging that Bruhn did "take, steal and carry away property, 

namely, United States currency, belonging to Old World 

Cabin[e]try, valued at $200.00 or more, with the intent to 

permanently deprive the owner of the value thereof, in violation 

of Virginia Code § 18.2-95." At the close of the Commonwealth's 

case, Bruhn moved to strike the Commonwealth's evidence. The 

trial court denied the motion. At the conclusion of all the 

evidence, defense counsel renewed the motion to strike the 

Commonwealth's evidence, which the court again denied. The 

trial court found Bruhn guilty of grand larceny. 

 Before sentencing, Bruhn filed a motion to set aside the 

verdict, contending that the Commonwealth failed to prove that 

the victim possessed the allegedly stolen property, which is a 

necessary element of larceny. In response, the Commonwealth 

argued, for the first time, that the evidence at trial proved 

embezzlement and that the embezzlement statute, Code § 18.2-111, 

"states that embezzlement shall be deemed larceny." The trial 

court denied the motion to set aside the verdict, stating, "I 

think the offense was proved." 

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II. 

Sufficiency of the Evidence to 

Support a Grand Larceny Conviction

 For the reasons stated in the panel's opinion, see Bruhn v. 

Commonwealth, 35 Va. App. 339, 343-44, 544 S.E.2d 895, 897 

(2001), we hold that the evidence presented by the Commonwealth 

was insufficient to support a conviction for grand larceny in 

violation of Code § 18.2-95, as alleged in the indictment. 

III. 

Proof of Embezzlement to Support Grand Larceny Conviction

 The Commonwealth argues in the alternative that, if Bruhn's 

retention of the funds does not constitute larceny, then it 

constitutes embezzlement, and that proof of embezzlement is 

sufficient to sustain a conviction on an indictment charging 

Bruhn with larceny.1 Assuming, without deciding, that Bruhn was 

guilty of embezzlement, we hold that proof of embezzlement does 

not support a conviction under an indictment alleging larceny. 

 In Virginia, proof of the elements of a crime not alleged 

in an indictment will not support a conviction. See Baker v. 

Commonwealth, 225 Va. 192, 194-95, 300 S.E.2d 788, 789 (1983). 

As the Virginia Supreme Court recently explained in Commonwealth 

 

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1

 To prove embezzlement, the Commonwealth must prove Bruhn 

"wrongfully appropriated to [his] use or benefit, with the 

intent to deprive the owner thereof, the property entrusted to 

[him] by virtue of [his] employment or office." Waymack v. 

Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766 (1987). 
v. Dalton, our constitutions demand that the Commonwealth indict 

for the crime it intends to prosecute: 

The Due Process Clauses of the Constitution 

of the United States and the Constitution of 

Virginia mandate that an accused be given 

proper notification of the charges against 

him. U.S. Const. amend. XIV; Va. Const. 

art. 1, § 8. Code § 19.2-220 provides, in 

pertinent part, that an indictment shall be 

"a plain, concise and definite written 

statement, (1) naming the accused, 

(2) describing the offense charged, 

(3) identifying the county, city or town in 

which the accused committed the offense, and 

(4) reciting that the accused committed the 

offense on or about a certain date." An 

indictment, to be sufficient, must give an 

accused notice of the nature and character 

of the charged offense so the accused can 

make his defense. Satcher v. Commonwealth, 

244 Va. 220, 231, 421 S.E.2d 821, 828 

(1992). 

259 Va. 249, 253, 524 S.E.2d 860, 862 (2000); see also United 

States v. Cruikshank, 92 U.S. 542, 557-58 (1875) (holding that 

the Sixth Amendment provides an accused the right to be informed 

of the nature and cause of the accusation (citations omitted)); 

Henson v. Commonwealth, 208 Va. 120, 125, 155 S.E.2d 346, 349 

(1967) (noting that Article I, Section 8 of the Virginia 

Constitution requires that an accused be apprised of the cause 

and nature of his accusation); Wilson v. Commonwealth, 31 Va. 

App. 495, 504, 525 S.E.2d 1, 5 (2000) ("An accused has a 

constitutional right, under both the United States and Virginia 

Constitutions, to be informed of the cause and nature of the 

accusation against him." (citations and quotations omitted)). 

 - 4 - 
 In this case, Bruhn's indictment notified him that he was 

being charged with grand larceny of property belonging to his 

employer, in violation of Code § 18.2-95; he was not charged 

with embezzlement. The Commonwealth did not propose any other 

theory for convicting Bruhn until it responded to defendant's 

motion to set aside the verdict finding Bruhn guilty of grand 

larceny. The predicate for Bruhn's motion was the 

Commonwealth's failure to prove that the victim possessed the 

property alleged to have been stolen, a necessary element of 

larceny. 

 Thus, throughout his trial, Bruhn defended a charge of 

grand larceny, the only crime he had been accused of committing. 

In his defense, Bruhn presented evidence that his employer did 

not possess the property alleged to have been stolen and that 

there had been no "trespassory taking" of the property. See

Maye v. Commonwealth, 213 Va. 48, 49, 189 S.E.2d 350, 351 (1972) 

(holding that larceny requires trespassory taking); Jones v. 

Commonwealth, 3 Va. App. 295, 301, 349 S.E.2d 414, 418 (1986) 

("[I]n every larceny there must be an actual taking, or 

severance of the goods from the possession of the owner." 

(internal quotations and citations omitted)). Clearly, the 

indictment did not provide Bruhn sufficient notice to adequately 

prepare to defend the accusations made against him. Satcher, 

244 Va. at 231, 421 S.E.2d at 828; Sims v. Commonwealth, 28 Va. 

App. 611, 619, 507 S.E.2d 648, 652 (1998). 

 - 5 - 
 The Commonwealth argues, however, that proof of 

embezzlement has been sufficient to support a conviction for 

grand larceny in Virginia since the 1800s and, therefore, 

Bruhn's indictment for larceny provided the constitutionally 

required notice for an embezzlement conviction. See, e.g., 

Pitsnogle v. Commonwealth, 91 Va. 808, 811, 22 S.E. 351, 352 

(1895) ("[U]pon an indictment simply charging larceny, the 

Commonwealth may show . . . that the subject of the larceny was 

. . . embezzled."). We disagree. We find that subsequent 

amendments to the embezzlement statute changed that law so as to 

prohibit a conviction for larceny upon an indictment for larceny 

and proof of embezzlement. 

 In 1895, when the Supreme Court of Appeals decided 

Pitsnogle, Code § 3716 (1877) classified embezzlement as larceny 

for purposes of prosecution and conviction: 

If any person . . . embezzle[s] . . . 

property which he shall have received for 

another, or for his employer, . . . or by 

virtue of his office, trust, or employment, 

. . . he shall be deemed guilty of larceny 

thereof. 

Understandably, the Court held that proof of embezzlement 

sustained a conviction for larceny. Pitsnogle, 91 Va. at 811, 

22 S.E. at 352.2

 

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2

 Throughout the 19th century, the Court interpreted 

statutes with similar language as permitting indictments and 

convictions for larceny upon proof of the elements of other 

property crimes. See, e.g., Leftwich v. Commonwealth, 61 Va. 

(20 Gratt.) 716, 723 (1870) (construing chapter 192, section 49, 
 The General Assembly adhered to that classification of 

embezzlement until 1994. Prior to its amendment in 1994, the 

statute prohibiting embezzlement, Code § 18.2-111, explicitly 

allowed the Commonwealth to indict for simple larceny and obtain 

a conviction on that indictment by proving embezzlement at 

trial. Specifically, the pre-1994 statute provided that one who 

committed the elements of embezzlement "shall be deemed guilty 

of larceny thereof, may be indicted as for larceny, and proof of 

embezzlement shall be sufficient to sustain the charge." 

Code § 18.2-111 (1994). Upon demand by the defendant, the 

statute also required the Commonwealth to elect a specific 

charge upon which to proceed by filing a written statement of 

"the statute [it] intends to rely upon to ask for conviction." 

Code § 18.2-111 (1994). 

 In 1994, however, the General Assembly amended the statute 

and deleted the language that permitted a defendant who had 

committed an embezzlement to be "indicted as for larceny." The 

 

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which provided: "If a free person obtain by any false pretence 

or token from any person, . . . he shall be deemed guilty of the 

larceny thereof."), applied in Fay v. Commonwealth, 69 Va. 

(28 Gratt.) 912 (1877); Dull v. Commonwealth, 66 Va. (25 Gratt.) 

965 (1875); and Anable v. Commonwealth, 65 Va. (24 Gratt.) 563 

(1873); Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 727 (1852) 

(construing Code 729, § 19, which provided that "a person 

knowingly receiving, or aiding in concealing stolen goods, shall 

be deemed guilty of larceny thereof"); Shinn v. Commonwealth, 

73 Va. (32 Gratt.) 899 (1879) (convicting defendant of larceny, 

upon indictment for larceny and proof of embezzlement where 

statute provided "if any person shall . . . embezzle . . . he 

shall be deemed guilty of the larceny thereof"). 
General Assembly further eliminated the phrase that made proof 

of embezzlement "sufficient to sustain" a larceny charge. The 

first sentence of the statute now provides that any person 

committing the described acts "shall be guilty of embezzlement." 

Code § 18.2-111. In effect, the legislative amendment made the 

crime charged in the indictment consistent with the crime tried 

and proved, giving notice of the offense "with clearness and all 

necessary certainty, to apprise the accused of the crime with 

which he stands charged." Cruikshank, 92 U.S. at 558. Because 

"[l]egislative amendments are presumed as intended to effect a 

change in the law," Shaw v. Commonwealth, 9 Va. App. 331, 334, 

387 S.E.2d 792, 794 (1990), we conclude that by eliminating 

these provisions, the General Assembly intended to change the 

law such that proof of embezzlement is no longer sufficient to 

sustain a larceny charge. See Beavers' Administratrix v. 

Putnam's Curator, 110 Va. 713, 717, 67 S.E. 353, 354 (1910) 

("The common law . . . remains in force, except in so far as it 

is changed by statute." (citations omitted)); cf. John Wesley 

Bartram, Pleading for Theft Consolidation in Virginia: Larceny, 

Embezzlement, False Pretenses and § 19.2-284, 56 Wash. & Lee L. 

Rev. 249, 275, 279 (1999) (commenting that the "notable 

absen[ce]" of the codification of the Pitsnogle rule in the 

embezzlement statute indicates that "Virginia deems embezzlement 

to be larceny only for purposes of punishment"). 

 - 8 - 
 The Commonwealth contends, however, that, in amending 

Code § 18.2-111, the legislature intended nothing more than to 

eliminate the provision requiring the Commonwealth to elect the 

charge it intended to prosecute, which was made unnecessary by 

the 1975 adoption of legislation giving defendants the right to 

request a bill of particulars. In essence, the Commonwealth 

suggests that the General Assembly "merely eliminated 

surplusage" from the statute and intended that courts continue 

to rely on a principle of law as expressed a century earlier in 

the common law. This broad, conclusory position regarding the 

purpose of the amendment fails to take into account all the 

amendatory language of the provision. Had the intent of the 

legislature been simply to eliminate, as duplicative, the right 

to demand notice of the specific charge upon which prosecution 

would proceed, it need not have deleted the language permitting 

an indictment for larceny where the offense to be tried and 

proved was that of embezzlement, nor added language that, upon 

proof of embezzlement, the conviction shall be that of 

embezzlement, not larceny, as it had been under the common law 

and the statute codifying it. Cf. Pitsnogle, 91 Va. at 811, 22 

S.E. at 352. 

 The Commonwealth's position also fails to consider that, in 

1975 when the legislature adopted Code § 19.2-230 granting all 

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criminal defendants the right to a bill of particulars, it did 

not eliminate the provision in Code § 18.2-111 giving larceny 

defendants the right to demand the specific larceny charge. 

Indeed, it was not until 1994, after the passage of nearly 20 

years, that the legislature eliminated the election provision in 

Code § 18.2-111, supporting the conclusion that the 

legislature's deletion of the election provision was generated 

by and followed from its amendment making the crime charged and 

the crime underlying the conviction one and the same. 

 Finally, in its analysis, the Commonwealth unduly 

emphasizes a clause in the second sentence, which states that 

"embezzlement shall be deemed larceny." See Code § 18.2-111 

("Embezzlement shall be deemed larceny and upon conviction 

thereof, the person shall be punished as provided in [the 

larceny code sections]."). This language must be construed 

within the context of the entire body of law prohibiting 

property crimes. See Campbell v. Commonwealth, 13 Va. App. 33, 

38, 409 S.E.2d 21, 24 (1991) (considering seven statutes dealing 

with forgery to determine that phrase not employed in statute 

prohibiting forgery of a public document did not apply to that 

offense). Throughout the Code, in nearly twenty statutes, the 

General Assembly declares that persons found to have committed 

certain crimes against property "shall be deemed guilty of 

larceny," or "shall be deemed guilty of the larceny." That 

phrase is notably absent from the embezzlement statute. Rather, 

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Code § 18.2-111 states that persons who embezzle "shall be 

guilty of embezzlement," and subsequently states that 

embezzlement "shall be deemed larceny and upon conviction . . . 

shall be punished as provided in § 18.2-95 or § 18.2-96." As 

the Supreme Court noted in Klarfeld v. Salsbury, "[w]hen the 

General Assembly uses two different terms in the same act, it is 

presumed to mean two different things." 233 Va. 277, 284-85, 

355 S.E.2d 319, 323 (1987); accord Campbell, 13 Va. App. at 38, 

409 S.E.2d at 24. Therefore, we presume that the legislature 

employed this phrase in the embezzlement statute to mean 

something different from the phrases it used elsewhere in the 

Code. Construing the clause in the context of the act as well 

as in relation to the specific provision, as amended, in which 

it is found, see Commonwealth Dept. of Motor Vehicles v. 

Wallace, 29 Va. App. 228, 233-34, 511 S.E.2d 423, 425 (1999), we 

conclude that the intent underlying this clause is to classify 

embezzlement as a larceny crime for the limited purpose of 

punishment according to the larceny statutes. 

 In short, we construe this penal statute strictly against 

the Commonwealth, Moyer v. Commonwealth, 33 Va. App. 8, 35, 531 

S.E.2d 580, 593 (2000), and we conclude that the General 

Assembly intended the current version of Code § 18.2-111 to 

preclude conviction under an indictment for larceny on proof of 

embezzlement. Therefore, assuming, without deciding, that Bruhn 

was guilty of embezzlement, proof of embezzlement does not 

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support his conviction under the indictment alleging larceny. 

See Gwaltney v. Commonwealth, 19 Va. App. 468, 473, 452 S.E.2d 

687, 690 (1995) (noting that embezzlement requires proof of 

elements different from those of larceny). Because the 

Commonwealth failed to prove that Bruhn committed the crime 

charged in the indictment, we reverse the conviction and dismiss 

the indictment. 

 Reversed and dismissed.

 - 12 - 
Bumgardner, J., dissenting. 

 I dissent from the holding that proof of embezzlement does 

not support conviction under an indictment alleging larceny. 

The panel opinion in this case reached that conclusion by 

analyzing the 1994 amendments to Code § 18.2-111.3 The en banc

opinion now grafts a constitutional dimension to the holding. 

The ruling changes substantive and procedural law that has been 

settled for more than a hundred years. I believe it is neither 

wise nor necessary to conclude the legislature intended such an 

extensive change to result from the revision of just one of many 

types of criminal or fraudulent conversions that form the body 

of law defining theft. 

 At common law, larceny was the only theft crime, but it 

required a taking from the possession of another. Crimes such 

as embezzlement and false pretenses developed to fill the gaps 

caused by the intricacies of proving possession in larceny 

prosecutions. See Roger D. Groot, Criminal Offenses and 

Defenses in Virginia § 185, 329 (4th ed. 1998). As in the 

present case, various forms of theft were "so much alike in many 

 3

 Code § 18.2-111 now reads: 

 If any person wrongfully and 

fraudulently . . . embezzle any . . . 

personal property . . . 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. 

 - 13 - 
respects . . . [that they were] often separated by lines so 

indistinct, and almost imaginary . . . ." Anable v. 

Commonwealth, 65 Va. (24 Gratt.) 563, 580 (1873). The General 

Assembly in 1847-48 enacted a revised Criminal Code that 

declared that any person who receives stolen property, embezzles 

property, or obtains it by false pretenses "shall be deemed 

guilty of larceny thereof." 1847-48 Va. Acts. The purpose was 

"to end this evil [the difficulty of determining the particular 

form of theft] by making all these crimes larceny . . . ." 

Anable, 65 Va. (24 Gratt.) at 580. 

 Beginning with Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 

727, 734 (1852), an unbroken line of cases held that proof of 

one of the "special counts" sustained an indictment charging 

common law larceny. The Anable case rejected the argument that 

the wording of those statutes, "shall be deemed guilty of 

larceny thereof," only fixed punishment. 65 Va. (24 Gratt.) at 

566, 580-82. Pitsnogle v. Commonwealth, 91 Va. 808, 811, 22 

S.E. 351, 352 (1895), specifically applied the principle to 

embezzlement, and ever since, "upon the indictment for larceny, 

proof of embezzlement is sufficient to sustain the charge." 

 The 1919 revisions to the embezzlement statute remained in 

effect until 1994. The revisors' note explained with precision 

the purpose of the modifications: 

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Two important changes have been made in this 

section. 

 Near the beginning of it the word 

"property" has been changed to "personal 

property, tangible or intangible." This 

change makes the decision in Pitsnogle v. 

Com., 91 Va. 810, 22 S. E. 351, statutory in 

plain terms. 

 As to the second change, in view of the 

fact that upon an indictment for larceny the 

proof may show simple larceny, embezzlement, 

obtaining goods by false pretenses, or 

fraudulent removal of goods which have been 

levied on, etc., the revisors have 

considered it wise to add the provision 

found in the last sentence of the section. 

Va. Code Ann. § 4451, 1823-24 (1919). Those notes make clear 

that the revisors conformed the embezzlement statute to the case 

law that culminated in Pitsnogle, and inserted an election 

procedure into the embezzlement statute intended to apply to all 

larceny indictments. 

 While wording of the embezzlement statute did not change 

materially until 1994, related areas of the law did change.4 

Henderson v. Commonwealth, 215 Va. 811, 814, 213 S.E.2d 782, 784 

(1975), suggested the election provision only applied to 

embezzlement cases. Beginning in 1975, a statutory procedure 

authorized bills of particulars for any felony indictment. 1975 

Va. Acts, ch. 495. A circuit court had statutory authority to 

 

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4 Branch v. Commonwealth, 184 Va. 394, 35 S.E.2d 593 (1945), 

held that receiving stolen property was a lesser-included 

offense of larceny. 
order a bill of particulars upon motion made at least seven days 

before trial. Code § 19.2-230.5 

 The 1994 amendment6 to Code § 18.2-111 deleted words and 

phrases from the first sentence, and after specifying the

 5

 The election provision in Code § 18.2-111 required a 

demand five days before trial.

6

 In 1994, the General Assembly provided:

Be it enacted by the General Assembly 

of Virginia: 

1. That § 18.2-111 of the Code of 

Virginia is amended and reenacted as follows: 

§ 18.2-111. Embezzlement deemed larceny; 

indictment; statement from attorney for the 

Commonwealth. 

If any person wrongfully and fraudulently 

use, dispose of, conceal or embezzle any money, 

bill, note, check, order, draft, bond, receipt, 

bill of lading or any other personal property, 

tangible or intangible which he shall have 

received for another or for his employer, 

principal or bailor, or by virtue of his office, 

trust, or employment, or which shall have been 

entrusted or delivered to him by another or by 

any court, corporation, or company, he shall be 

deemed guilty of larceny thereof, may be 

indicted as for larceny, and proof of

embezzlement under this section shall be

sufficient to sustain the charge. On the trial

of every indictment for larceny, however, the 

defendant, if he demands it, shall be entitled

to a statement in writing from the attorney for

the Commonwealth designating the statute he 

intends to rely upon to ask for conviction. 

Such statement shall be furnished to the 

defendant, or his attorney, no later than five

days prior to the date fixed for trial on the

indictment provided the demand is made more than

five days prior to such date. Embezzlement 

shall be deemed larceny and upon conviction 

thereof, the person shall be punished as 

provided in § 18.2-95 or § 18.2-96. 

 - 16 - 

Va. Code Ann. § 18.2-111 (1994). 
proscribed acts, concluded with the phrase "guilty of 

embezzlement." Previously the statute declared any person 

committing those acts was "guilty of larceny thereof." It also 

deleted two phrases from that sentence that had declared the 

defendant "may be indicted as for larceny" and proof of 

embezzlement was "sufficient to sustain the charge." The 

amendment deleted completely the second sentence of the statute 

that had defined the election procedure. It added a concluding 

sentence: "Embezzlement shall be deemed larceny and upon 

conviction thereof, the person shall be punished as provided in 

§ 18.2-95 or § 18.2-96." 

 The most apparent purpose of the 1994 amendment to the 

embezzlement statute was to remove all reference to the election 

procedure so the statute conformed to general criminal 

procedure. A motion for a bill of particulars, Code § 19.2-230, 

now provided a remedy for ascertaining the specifics of a 

charge. The newer remedy appeared in Title 19.2 with other 

criminal procedure statutes addressing the form and 

prerequisites of indictments. It was not submerged in a 

substantive statute that defined a single crime but bore a 

procedural rule of general application. The newer remedy 

clearly applied to any felony. With the election procedure 

removed, the embezzlement statute conformed to the newer 

procedure for bills of particulars, and inconsistent deadlines 

for making the request no longer posed a conflict.

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 Conforming the embezzlement statute to the general 

provisions for a bill of particulars in criminal cases is the 

plainly manifested purpose for the 1994 amendment. However, if 

the statute is viewed simply as it read before and after the 

changes in wording, the purpose is susceptible to a broad 

interpretation. Deleting the language "may be indicted as for 

larceny" and "shall be sufficient to sustain the charge" permits 

the elementary conclusion that the purpose was to accomplish the 

opposite. The majority adopts that approach and concludes the 

General Assembly intended to preclude proof of embezzlement to 

sustain a larceny charge. 

 Before accepting that conclusion, it should be gauged to 

see if it comports with the overall body of theft law. It does 

not because it makes the rule for embezzlement an aberration. 

Embezzlement law has always conformed to the related theft 

crimes which the majority calls a "subset of larceny." 

 The clauses, "may be indicted as for larceny" and "shall be 

sufficient to sustain the charge," were inserted into the 

embezzlement statute to make plain that the 1919 revisions did 

not change case law. They insured conformity with established 

case law. Va. Code Ann. § 18.2-111 (1994); Va. Code Ann. § 4451 

(1919). Established law permitted proof of embezzlement to 

sustain a larceny charge. Pitsnogle, 91 Va. at 811, 22 S.E. at 

352. The 1919 revisions did not change the law; they took care 

to maintain the uniform principle that applied to all offenses 

 - 18 - 
deemed larceny. Removal of the clauses would not call for 

reversal of the principle because those clauses did not create 

it. The case law had; it remained unchanged. 

 Changing the last words of the first sentence from "guilty 

of larceny," to "guilty of embezzlement," is not a material 

change because the very next phrase declares that embezzlement 

is larceny. The core of the amended statute declares, "he shall 

be guilty of embezzlement. Embezzlement shall be deemed larceny 

. . . ." That nuclear phrase equates embezzlement with larceny.

 "Deem" is a term often used in legislation to create the 

legal fiction that something is that which it is not, or that 

something is not that which it is. A Dictionary of Modern Legal 

Usage 254 (Byran A. Garner ed., 2d ed. 1995); Black's Law 

Dictionary 425 (7th ed. 1999). The term was employed in 1847 to 

make certain theft crimes common law larceny "just as if the 

offender had feloniously stolen, taken and carried away the 

subject thus obtained by a false pretence or token." Dull v. 

Commonwealth, 66 Va. (25 Gratt.) 965, 981 (1875). The use of 

the term in 1994 continued the fiction that embezzlement was 

larceny. The term "deemed" incorporated the meanings that case 

law attached to the fiction and ensured consistency among the 

various theft statutes.7 

 

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7

 The legal fiction of deeming acts of theft to be larceny 

is common throughout the Code. Acts "deemed guilty of larceny" 

include: § 6.1-333, Removing property from a safe-deposit box 

by a co-lessee; § 18.2-98, Larceny of checks; § 18.2-108, 
 The majority concludes the only purpose for words "deemed 

larceny" is to fix punishment, which ironically is the 

construction that has been rejected since 1852. See Dowdy, 50 

Va. (9 Gratt.) at 734. It dismisses the traditional 

construction by saying the phrase must be construed "within the 

remainder of the sentence." Because the second clause pertains 

to penalty, the first clause is so limited. 

 Even when focusing on that single sentence, the 

interpretation is not convincing. The compound sentence makes 

two independent statements. "Embezzlement 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-

111. The first states embezzlement is deemed larceny; the 

second states the penalty. If the first statement only serves 

to fix the penalty, there is no purpose for the second. 

 

Receiving stolen goods; § 18.2-111.1, Conversion of military 

property by person discharged from the national guard; 

§ 18.2-114, Conversion by shippers and warehousemen; 

§ 18.2-114.1, Failure to account by special receivers; 

§ 18.2-117, Failure of bailee to return property; § 18.2-178, 

Obtaining property by false pretenses; § 42.1-73, Concealment or 

removal of books from a library; § 63.1-124, False statements to 

obtain welfare benefits; and § 63.1-124.1, Unauthorized use of 

food stamps. 

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Sometimes the statute employs the phrase "deemed guilty of 

the larceny": § 18.2-101, Selling of goods distrained or levied 

upon; § 18.2-115, Conversion or removal of property subject to 

lien; § 18.2-116, Failure to pay for or return goods delivered 

for selection or approval; § 18.2-118, Conversion or removal of 

leased property; § 18.2-200, Failure to deliver a crop in return 

for advances; and § 18.2-200.1, Failure to perform construction 

in return for advances. 
 The majority relies on Davis v. Commonwealth, 14 Va. App. 

709, 713, 419 S.E.2d 285, 288 (1992), for authority that 

"'deemed' larceny, 'serves the purposes of defining the 

parameters of punishment.'" Davis was not an embezzlement case; 

it involved receiving stolen property. The quote is dicta. No 

authority ever held that "deeming" receipt of stolen property 

larceny only defined punishment. Indeed, that is the particular 

statute that Dowdy interpreted when it initiated the principle. 

Davis did not address the issue and certainly did not address 

the Pitsnogle case that held the exact opposite. Davis was 

decided two years before the 1994 amendment even permitted the 

suggestion that the revision overruled Pitsnogle. 

 When the legislature has created the legal fiction that a 

theft crime is larceny, case law has uniformly held the purpose 

is not limited to incorporating the penalty for larceny. It 

permitted indictment for larceny but proof of a specific form.8 

The majority concludes that holding no longer applies to 

embezzlement because Pitsnogle was determined by the statute 

then in effect. 

 In the Pitsnogle line of cases, the statute always stated 

that if a person did certain acts "he shall be deemed guilty of 

 8

 The legislature continued to designate various theft 

crimes as "deemed larceny" as late as 1977 and 1978. See Code 

§ 18.2-111.1, Conversion of military property by person 

discharged from the national guard; Code § 18.2-114.1, Failure 

to account by special receivers. 

 - 21 - 
larceny." The words "deemed larceny" that appear in the current 

statute carry the same meaning as "deemed guilty of larceny" 

that appeared previously. Indeed, the second case to rule on 

the meaning of the clause "deemed guilty of larceny" 

interchanged the phrases and concluded that it was proper to 

charge specific facts "which the act declares shall be deemed 

larceny." Leftwich v. Commonwealth, 61 Va. (20 Gratt.) 716, 719 

(1870). 

Pitsnogle did not interpret the particular words "deemed 

guilty of larceny." It noted the wording of the embezzlement 

statute was identical to the wording of the statutes for 

receiving stolen property and false pretenses. Accordingly, the 

principle that applied to those statutes must apply to the 

embezzlement statute. However, the case that established the 

principle, Dowdy, 50 Va. (9 Gratt.) at 734 (Moncure, J.), did 

not parse the particular wording of the statute. It reached its 

conclusion by deducing the overall purpose of the General 

Assembly when it employed the fiction that acts not larceny were 

to be larceny. 

 Judge Moncure, the author of the Dowdy opinion, explained 

in a sequel: 

Larceny at common law always includes a 

trespass, and implies that the property was 

taken invito domino. The other offences 

named did not include a trespass, and were 

often committed by the consent of the owner, 

though fraudulently obtained. The statute 

merely abolishes these distinctive features, 

 - 22 - 
and declares that the offenders shall be 

deemed guilty of stealing, taking and 

carrying away the property. 

Anable, 65 Va. (24 Gratt.) at 581 (Moncure, P., concurring on 

this point, dissenting from result). The decision in Dowdy did 

not turn on the employment of the word "guilty." 

 The majority relies on Baker v. Commonwealth, 225 Va. 192, 

300 S.E.2d 788 (1983), to insert a constitutional buttress to 

its holding. Baker did not deal with the proposition that an 

indictment for larceny gave inadequate notice that the charge 

involved embezzlement. The indictment charged larceny, but at 

trial the Commonwealth offered an instruction on false pretenses 

only. The instruction omitted the unique element of the crime, 

that title must pass. No evidence indicated the defendant 

obtained title. Baker dealt with an erroneous finding 

instruction that failed to require proof of the essential 

element of the crime. "However, to obtain a larceny conviction 

upon a larceny indictment when the proof shows a crime other 

than common law larceny, the Commonwealth must fully prove that 

other crime." Groot, supra at 330 (citing Anable, 65 Va. (24 

Gratt.) at 567-68). Baker did not consider, much less 

distinguish, modify, or limit, the Pitsnogle holding. 

 The embezzlement statute is but one of a group of statutes 

that address various forms of theft. The General Assembly has 

employed the fiction that various forms of theft are deemed 

larceny. The 1994 amendment modified only one of a group of 

 - 23 - 
statutes. That one was also the one statute that contained a 

procedure applicable to the others. 

 The adoption of the Criminal Code in 1847 was an early 

attempt to consolidate9 the law of theft and to eliminate the 

"indistinct," "almost imaginary" differences in what "all amount 

to a criminal and fraudulent conversion by one man to his own 

use of another man's property." Anable, 65 Va. (24 Gratt.) at 

580-81 (Moncure, P., dissenting). The majority's interpretation 

severs embezzlement from its traditional association with the 

law of theft and makes it unique. It returns embezzlement to 

the arcane subtleties of possession, custody, and title. 

 The majority's holding impresses on the embezzlement 

statute an interpretation that was rejected in Pitsnogle: 

deeming embezzlement larceny has no purpose but to define 

punishment. It adopts a constitutional ruling that repudiates 

the ruling and explanation in Anable.10 Unintended consequences 

 9

 Many states have moved to consolidate their body of law 

into a unitary theft crime. See John Wesley Bartram, Note, 

Pleading for Theft Consolidation in Virginia: Larceny, 

Embezzlement, False Pretenses and 19.2-284, 56 Wash. & Lee L. 

Rev. 249, 251 n.23 (1999). 

10 In Anable, 65 Va. (24 Gratt.) at 580-81, Moncure, P. 

explained: 

There was nothing incongruous in this, nor 

is there any danger, as the learned counsel 

for the accused in this case seems to 

suppose, that it may take the accused by 

surprise. 

 - 24 - 
are likely to follow from such a far reaching ruling. Will the 

constitutional analysis that a larceny indictment gives 

inadequate notice apply to all larceny indictments? Will 

intertwined laws such as the recidivist statute, Code 

§ 18.2-104, apply differently? Dull, 66 Va. (25 Gratt.) at 965, 

982, interpreted the old wording "deemed guilty" to apply the 

substantive gradations of petit larceny and grand larceny to 

other theft offenses. Will the embezzlement statute now lack a 

definition but contain a graded penalty? At its latest session, 

the General Assembly enacted Code § 38.2-1810 which mandates a 

report of "any act of larceny as prescribed in § 18.2-111."11 

 

The offences are all cognate. They are all 

offences against property, and property of 

which larceny may be committed. They differ 

only in a few circumstantial details, 

immaterial in a moral point of view. They 

all amount to a criminal and fraudulent 

conversion by one man to his own use of 

another man's property. . . . There is no 

danger of surprise. When A is charged with 

stealing certain property of B, the 

substance of the charge is the fraudulent 

conversion of that property by the former to 

his own use, and whether it was done by 

means of a larceny at common law, or by 

receiving the property knowing it to have 

been stolen, or by obtaining it by false 

pretences, or by embezzling it after having 

been entrusted by the owner with its 

custody, can make no difference in regard to 

taking the accused by surprise. 

11 Code § 38.2-1810, Report of acts deemed larceny under 

§ 18.2-111, provides in part: 

 - 25 - 

A. Whenever any insurer . . . knows . . . 

any licensee . . . has committed any act of 
Does the majority holding effectively eviscerate this act though 

the words illustrate that the General Assembly still considers 

the fiction of "deemed larceny" to carry its traditional 

meaning? 

 Nothing suggests, much less plainly manifests, the General 

Assembly intended the major change that the majority attributes 

to it. I would interpret the 1994 amendment narrowly as a 

housekeeping update that adjusted for developments after 1919 

but that did not make embezzlement an anomaly. Accordingly, I 

dissent. 

 

larceny as prescribed in § 18.2-111 . . . it 

shall be the duty of the insurer . . . to 

file with the Commission a complete 

statement of the relevant facts and 

circumstances. 

B. Whenever any insurer licensed to 

transact the business of title insurance 

. . . knows . . . any title insurance agent 

. . . has committed any act of larceny as 

prescribed in § 18.2-111 . . . it shall be 

the duty of the insurer . . . to file with 

the Commission a complete statement of the 

relevant facts and circumstances. 

 - 26 - 
 Tuesday 29th 

 May, 2001. 

Christopher Bruhn, Appellant, 

 against Record No. 0818-00-2 

 Circuit Court No. CR99-4369 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, 

Bray Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee 

On May 8, 2001 came the appellee, by the Attorney 

General of Virginia, and filed a petition praying that the Court 

set aside the judgment rendered herein on April 24, 2001, and 

grant a rehearing en banc thereof. 

On consideration whereof, the petition for rehearing 

en banc is granted, the mandate entered herein on April 24, 2001 

is stayed pending the decision of the Court en banc, and the 

appeal is reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 

5A:35. The appellee shall attach as an addendum to the opening 

brief upon rehearing en banc a copy of the opinion previously 

rendered by the 

 - 27 - 
Court in this matter. It is further ordered that the appellee 

shall file with the clerk of this Court twelve additional copies 

of the appendix previously filed in this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 

 - 28 - 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Humphreys 

Argued at Richmond, Virginia 

CHRISTOPHER BRUHN 

 OPINION BY 

v. Record No. 0818-00-2 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 24, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 John G. Douglass (James S. Yoffy; T.C. 

Williams School of Law; Brenner, Evans & 

Yoffy, on briefs), for appellant. 

 Amy L. Marshall, Assistant Attorney General 

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

for appellee. 

 The appellant, Christopher Bruhn, appeals his conviction 

for grand larceny, in violation of Code § 18.2-95. Bruhn 

contends: (1) the evidence was insufficient to support a 

conviction for grand larceny because it failed to show the 

victim ever possessed the alleged stolen property; (2) proof of 

the crime of embezzlement is insufficient to sustain a 

conviction under an indictment for grand larceny of United 

States currency; (3) the evidence was insufficient to prove the 

crime of embezzlement; and (4) the Commonwealth failed to 

establish venue. For the following reasons, we reverse. 

 - 29 - 
I. 

BACKGROUND

 On appeal, we view the evidence and all reasonable 

inferences fairly deducible therefrom, in the light most 

favorable to the Commonwealth. Cressell v. Commonwealth, 32 Va. 

App. 744, 763-64, 531 S.E.2d 1, 10 (2000). During the first few 

months of 1999, Bruhn was employed by Old World Cabinetry, a 

business located in Hanover County and owned by Thomas Marzeros. 

Old World Cabinetry principally built and installed cabinets in 

homes and mobile homes. Bruhn was self-employed as a woodworker 

prior to his employment with Old World. 

 In February 1999, Barbara Farley, an acquaintance of 

Bruhn's wife, contacted Bruhn at home and asked him to refinish 

some antique furniture, as he had done for her in the past. 

Mrs. Farley had never heard of Old World Cabinetry and was not 

aware of Bruhn's new employment there. However, Marzeros 

accompanied Bruhn to Farley's home when he went to pick up the 

furniture, and Bruhn and Marzeros performed the refinishing work 

together in the Old World workshop in Hanover County. They did 

the work on Saturdays, outside the normal business hours of Old 

World, because refinishing antiques was not part of Old World's 

regular business. Bruhn, with Marzeros's knowledge, arranged 

for Old World to purchase supplies to refinish Farley's 

furniture, at a cost of $82.55. After the work was completed, 

Bruhn delivered the furniture to Farley at her Henrico County 

- 30 -
home. At that time, Bruhn presented her with a bill for $519, a 

bill that Marzeros had generated for Bruhn on a computer. The 

bill did not identify a payee and made no mention of Old World 

Cabinetry. At Bruhn's request, Farley paid him with a check 

drawn on Crestar Bank and made payable to "Chris Bruhn." 

 Marzeros allowed employees to do personal work in his shop 

on their own time, but he did not allow "side jobs" to be done 

for profit. When he asked Bruhn about the payment from Farley, 

Bruhn told Marzeros that Farley was not at home when he 

delivered the furniture. When Marzeros asked Bruhn a few weeks 

later about getting payment from Farley, Bruhn told him she was 

out of town. On a later occasion, Bruhn's wife told Marzeros 

that Farley had given the check to her at work, but she had left 

it at work, an account Bruhn confirmed with Marzeros. 

 Marzeros contacted Farley several weeks after the job was 

complete and requested payment. He learned that Farley had paid 

Bruhn directly. Marzeros telephoned Bruhn about the matter and 

tape-recorded the conversation. During the phone call, Bruhn 

told Marzeros that he had the check from Farley and would give 

it to Marzeros.12 Bruhn never did so. In April 1999, Marzeros 

terminated Bruhn for business reasons. 

 12 MARZEROS: [D]id Dorothy [Bruhn's wife] get 

 that check? 

 BRUHN: Yeah, it's here. 

 MARZEROS: Okay, you've got that check from 

 Barbara [Farley]? 

 BRUHN: Uh-huh. 

- 31 -
 On February 2, 2000, Bruhn was tried under an indictment 

charging that Bruhn did "take, steal and carry away property, 

namely, United States currency, belonging to Old World 

Cabin[e]try, valued at $200.00 or more, with the intent to 

permanently deprive the owner of the value thereof, in violation 

of Virginia Code § 18.2-95." At the close of the Commonwealth's 

case, defense counsel made a motion to strike the Commonwealth's 

evidence. In addition, counsel argued that the Commonwealth had 

failed to establish venue in Henrico County, noting that the 

only thing Bruhn obtained in Henrico County was a check payable 

to himself and that there was no evidence that Bruhn ever 

obtained any "currency" –- the property identified in the 

indictment –- in Henrico County. The trial court denied the 

motions. Thereafter, Bruhn testified and called several 

witnesses. At the conclusion of all the evidence, defense 

counsel renewed the venue objection and renewed the motion to 

strike the Commonwealth's evidence. The trial court denied the 

motions and found Bruhn guilty of grand larceny. 

 Before sentencing, Bruhn filed a motion to set aside the 

verdict. In that motion, Bruhn argued that larceny is a crime 

against possession which cannot be sustained absent proof that 

the victim possessed the property alleged to have been stolen. 

 

 MARZEROS: Okay. Um, when can I hook up 

 with you to pick that check out? 

 BRUHN: I can do it Friday. 

- 32 -
During oral argument on the motion, the Commonwealth argued that 

the evidence at trial proved embezzlement and that the 

embezzlement statute, Code § 18.2-111, "states that embezzlement 

shall be deemed larceny." The trial court denied the motion to 

set aside the verdict, stating, "I think the offense was 

proved." 

II. 

ANALYSIS

A. 

Sufficiency of the Evidence to 

Support a Grand Larceny Conviction

 The Commonwealth charged Bruhn with grand larceny, which 

Code § 18.2-95(ii) defines as "simple larceny not from the 

person of another of goods and chattels of the value of $200 or 

more." In Virginia, larceny is defined by its elements at 

common law as, "the wrongful or fraudulent taking of personal 

goods of some intrinsic value, belonging to another, without his 

assent, and with the intention to deprive the owner thereof 

permanently." Jones v. Commonwealth, 3 Va. App. 295, 300, 349 

S.E.2d 414, 417-18 (1986). "'[I]n every larceny there must be 

an actual taking, or severance of the goods from the possession 

of the owner.'" Id. at 301, 349 S.E.2d at 418 (citation 

omitted); see also Maye v. Commonwealth, 213 Va. 48, 49, 189 

S.E.2d 350, 351 (1972) (larceny requires "trespassory" taking); 

- 33 -
Gwaltney v. Commonwealth, 19 Va. App. 468, 474, 452 S.E.2d 687, 

691 (1995) (larceny involves "an unlawful taking by trespass"). 

 In this case, the Commonwealth alleges the property stolen 

by Bruhn was the right to receive the $519 payment that Farley 

owed in exchange for refinishing her furniture. The 

Commonwealth contends that the payment was owed to Old World, 

not Bruhn. Even assuming the Commonwealth's contention is 

correct, because Bruhn never turned the funds over to his 

employer, Old World never obtained possession of the money. A 

larceny was, therefore, not committed. See Lund v.

Commonwealth, 217 Va. 688, 691-92, 232 S.E.2d 745, 748 (1977) 

(holding that larceny involves "a taking and carrying away of a 

certain concrete article of personal property" and does not 

apply to, e.g., labor, services, or the use of a computer). 

Furthermore, were Bruhn found to have wrongfully taken Old 

World's right to payment, an intangible cannot be the subject of 

larceny under Code § 18.2-95. Id. 

B. 

Proof of Embezzlement to Support Grand Larceny Conviction

 The Commonwealth argues in the alternative that, if Bruhn's 

retention of the funds does not constitute larceny, then it 

constitutes embezzlement, and that proof of embezzlement is 

sufficient to sustain a conviction on an indictment charging 

- 34 -
Bruhn with larceny.13 Assuming, without deciding, Bruhn 

committed embezzlement, we hold that proof of embezzlement does 

not support a conviction under an indictment alleging larceny.

 Embezzlement is prohibited under Code § 18.2-111. Prior to 

its amendment in 1994, Code § 18.2-111 explicitly allowed the 

Commonwealth to indict for simple larceny and obtain a 

conviction on that indictment by proving embezzlement at trial. 

The pre-1994 statute provided that one who committed the 

elements of embezzlement "shall be deemed guilty of larceny 

thereof, may be indicted as for larceny, and proof of 

embezzlement shall be sufficient to sustain the charge." Code 

§ 18.2-111 (1994). Upon demand by the defendant, the statute 

also required the Commonwealth elect a specific charge upon 

which to proceed by filing a written statement of "the statute 

[it] intends to rely upon to ask for conviction." Code 

§ 18.2-111 (1994). 

 In 1994, the General Assembly amended the statute and 

removed the language which permitted a defendant to be "indicted 

as for larceny" and further eliminated the phrase which made 

proof of embezzlement "sufficient to sustain" a larceny charge. 

The amendment also eliminated the provision requiring the 

 13 To prove embezzlement, the Commonwealth must prove Bruhn 

"wrongfully appropriated to [his] use or benefit, with the 

intent to deprive the owner thereof, the property entrusted to 

[him] by virtue of [his] employment or office." Waymack v. 

Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766 (1987). 

- 35 -
Commonwealth to elect the particular larceny statute upon which 

it sought conviction. Because "[l]egislative amendments are 

presumed as intended to effect a change in the law," Shaw v. 

Commonwealth, 9 Va. App. 331, 334, 387 S.E.2d 792, 794 (1990), 

we conclude that by eliminating these provisions, the General 

Assembly intended to change the law and that proof of 

embezzlement is no longer sufficient to sustain a larceny 

charge. 

 Although the current version of Code § 18.2-111 provides 

that "embezzlement shall be deemed larceny," the language must 

be construed within its context, which pertains to the penalty 

to be imposed upon conviction for embezzlement. The statute 

classifies embezzlement as a larceny crime and provides for 

punishment according to the larceny statutes. See Davis v. 

Commonwealth, 14 Va. App. 709, 713, 419 S.E.2d 285, 288 (1992) 

(noting that similar provision in Code § 18.2-108 which provides 

that receipt of stolen property shall be "deemed" larceny 

"serves the purpose of defining the parameters of punishment"). 

Therefore, assuming, without deciding, Bruhn committed 

embezzlement, proof of embezzlement would not support a 

conviction under an indictment alleging larceny. See Baker v. 

Commonwealth, 225 Va. 192, 194-95, 300 S.E.2d 788, 789 (1983) 

("Where . . . the Commonwealth elects to prosecute a defendant 

for a specific category of larceny, and no other, its case must 

either prevail or fall upon that election. The Commonwealth 

- 36 -
cannot retrospectively argue that [a defendant] should be 

convicted of a crime for which he was not prosecuted . . . ."). 

 Because the Commonwealth failed to prove Bruhn committed 

grand larceny, in violation of Code § 18.2-95, we reverse the 

conviction and dismiss the indictment.14

 Reversed and dismissed. 

 14 Because we reverse on the grounds discussed above, we need 

not address Bruhn's contentions with regard to venue and the 

sufficiency of the evidence to sustain an embezzlement 

conviction. 

- 37 -