Gardner v. Commonwealth

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.