9.5 The Charge Upon Which the Accused Is Tried

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

9.5 THE CHARGE UPON WHICH THE ACCUSED IS TRIED

9.501 In General. Criminal charges are often verbose and complicated for two reasons. First, in attempting to be certain that nothing essential is left out of a charge, prosecutors often add surplusage—"When in doubt, include it." Second, if a charge is perfect, there will be no objection to it; if a charge is of doubtful validity, it will be appealed and, if affirmed, it then will become a model for future charges.

The Virginia Code and the Rules of the Supreme Court of Virginia encourage simplified criminal charges by providing for the so-called "short-form" indictments. Use of the short-form indictments in the Code and in the appendix to the rules has simplified the charging process and eliminated the need for confusing, overly technical surplusage. Because the Virginia Supreme Court has expressly adopted these short-form indictments, prosecutors should feel confident that use of these approved forms will insulate the indictment from attack.

Nevertheless, defense counsel must be certain that the new forms of charges give sufficient notice and protect the defendant against the possibility of being charged and convicted twice for the same offense. Clarification of the charge may be obtained by a motion for a bill of particulars. ²³⁶

[Page 464]

9.502 Form and Content of the Indictment and the Information.

A. General Requirements. The charging document is no mere formality. The Commonwealth may not accuse a person of one crime and convict him or her by proving another unless the offense charged is a lesser-included offense. ²³⁷ However, the defendant must not object to or appeal the conviction on the grounds that he or she was convicted for an offense not charged. Unless an indictment is amended to conform to the proof or the accused acquiesces in being found guilty of an offense other than the one charged, a trial court lacks the authority to find an accused guilty if the objection is properly preserved. ²³⁸

To meet the test of constitutional sufficiency, an indictment or information must clearly apprise the accused of the crime with which he or she is charged so that the accused can prepare the defense and protect against a later prosecution for the same offense. ²³⁹ Thus, if the accused is aware of the actual charge against him or her, and the indictment or information provides sufficient information upon which to prepare a defense, there has been no violation of his or her Sixth Amendment rights. ²⁴⁰ A mere defect of form is not fatal to the indictment if no injury to the accused could have resulted from it. ²⁴¹

Any form of presentment, indictment, or information that informs the accused of the nature and cause of the accusation against him or her is good. ²⁴² The modern trend, reflected in both Virginia statutory law and the court rules, is toward simplifying the charging process in order to assure the

[Page 465]

clarity and sufficiency of the charge. The indictment or information must 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. 243

When an indictment alleges facts that need not be proved, the failure to prove those facts is not fatal. However, if a word or words in the indictment describe, limit, or qualify words that must be contained in the indictment and proved, they are descriptive of the offense and cannot be rejected as surplusage. ²⁴⁴ The Virginia Court of Appeals has held that a defendant may not be convicted of an offense different from that with which he or she is charged. In Scott v. Commonwealth, ²⁴⁵ the Commonwealth charged that the defendant "entered in the nighttime" but presented evidence only of a daytime entry. Because the Commonwealth did not amend the indictment and the appellant made a timely objection to the lack of evidence proving that the offense occurred in the nighttime, the court reversed the conviction.

Although the Rules of the Supreme Court of Virginia require that the indictment cite the statute or ordinance that defines the offense charged, error in the citation of the statute or ordinance is not grounds for dismissal or reversal unless the court finds that the error or omission prejudiced the accused in preparing his or her defense. ²⁴⁶ In addition, section 19.2-226(10) of the Virginia Code provides that an indictment cannot be invalidated solely because it omitted reference to or incorrectly identified the Virginia Code section that defines the offense. If a court rule and a statute conflict, the latter governs. ²⁴⁷

[Page 466]

The rules further simplify the indictment process, as they provide that the indictment or information need not contain a formal commencement or conclusion. ²⁴⁸ This eliminates the antiquated common-law rule that an indictment was fatally defective if it did not conclude with the words "against the peace and dignity of the Commonwealth." ²⁴⁹

B. Naming the Accused. The accused person must be named, which prevents the use of "John Doe" indictments. However, if the accused is misnamed in the indictment, this does not vitiate the indictment, as the court, upon discovering the misnomer before or during the trial, may have the indictment amended to correct the mistake. ²⁵⁰

C. Describing the Offense.

1. In General. An indictment must give the accused notice of the nature and character of the offense charged, and any defect must not prejudice the accused in preparing his or her defense. Defects held not to constitute insufficiency include failure to allege felonious intent in a larceny, ²⁵¹ charging robbery of a corporation rather than of an individual, ²⁵² and misrecital of the statutory reference where the charge was adequately stated in the narrative. ²⁵³ The Commonwealth is not required to have expressly charged the defendant with being an accessory before the fact to receive such an instruction on an indictment. ²⁵⁴ The United States Supreme Court has upheld an indictment charging attempt even though it did not specifically allege a particular overt act or any other "component part of the offense" because it was implied by the fact that an "attempt" was alleged. ²⁵⁵

The presentment or indictment may indicate the offense by its common-law name or state such part of the common-law or statutory definition as is necessary to advise the defendant as to the crime with which he or she is charged. ²⁵⁶ An error in citing the statute or ordinance defining the offense

[Page 467]

charged is not reversible error unless it prejudiced the accused's preparation for his or her defense. ²⁵⁷ An indictment cannot be invalidated solely because it omitted reference to or incorrectly identified the Virginia Code section that defines the offense. ²⁵⁸

The Virginia Code does not prescribe how much intent must be specified in the indictment. ²⁵⁹ Some of the short-form indictments provide for specific intent and others do not. ²⁶⁰ The only statutory reference to intent provides that where an intent to injure, defraud, or cheat is necessary to constitute an offense, the intent may be alleged in general terms, without naming the victim of the intent. ²⁶¹ In view of the general guidelines in the Virginia Code and in the rules, it is reasonable to assume that intent need not be alleged if the offense can be sufficiently described without it. ²⁶² This information may be obtained through a bill of particulars. ²⁶³

2. Short-Form Indictments: Specific Statutory Provisions. The Virginia Code contains specific instructions about the form of indictments for certain crimes. By statute enacted in 1930, ²⁶⁴ the General Assembly authorized short-form indictments for the offenses of murder and manslaughter, "to eliminate the excessive verbiage used in the old common-law forms and to substitute therefor a short, simple statement of the offense charged." ²⁶⁵ These short-form indictments have been approved by both federal and state courts. ²⁶⁶ In a prosecution for forging or altering any instrument or other thing, it is not necessary to set forth any copy or facsimile of the instrument or other thing; it is sufficient to describe the instrument or other thing in a manner that would sustain an indictment for stealing it. ²⁶⁷

[Page 468]

3. Short-Form Indictments: Specific Rule Provisions. In addition to the statutory short-form indictments for murder, manslaughter, and forgery, the Appendix to the Rules of the Supreme Court of Virginia contains short-form indictments for other crimes.

D. Identifying the Jurisdiction. The written charge must identify the county, city, or town in which the accused committed the offense. ²⁶⁸ Traditionally, the jurisdiction of the court must appear on the face of the indictment. ²⁶⁹ However, jurisdiction need not be specifically alleged, and an indictment is not invalid for failure to allege that the offense was committed "within the jurisdiction of the court," when the averments show that the case is one of which the court has jurisdiction. Nevertheless, the location of the offense must be stated with sufficient particularity to make evident the court's jurisdiction. ²⁷⁰

Subsection (B) was added to section 19.2-244 in 2015 to address the problem of where venue is proper if an offense is committed in Virginia but the location cannot be "readily determined." That subsection says that venue is proper in the county or city (i) where the defendant resides; (ii) if the defendant is not a resident of Virginia, where the defendant is apprehended; or (iii) if the defendant is not a resident of Virginia and is not apprehended in Virginia, where any related offense was committed. For homicides and any related offenses where the location of the crime is unknown, venue is proper where the body or any body parts are found or, if the victim is transported...