Opinion
Record No. 1586-91-3
September 29, 1992
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE JAMES F. INGRAM, JUDGE.
William Parker Walker (Office of the Public Defender, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Coleman and Moon.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Lelia Torain Pritchett (Pritchett), appellant, was convicted in a bench trial of forging a check, uttering a forged check, and larceny. On appeal, she contends that a fatal variance existed between the allegations in the indictments and the offenses proved at trial. We hold that the variance was not fatal and, accordingly, affirm the convictions.
The facts are not in dispute. On November 2, 1990, a check in the amount of $207.00 drawn on the account of the Department of Social Services and made payable to Sonja A. Martin was mistakenly mailed to Pritchett's address. Upon receiving the check, Pritchett endorsed it using the name Sonja A. Martin, cashed the check, and kept the proceeds. Pritchett admitted that she knew the check was not in her name, that she signed Martin's name, and that she presented the check to the bank and kept the proceeds.
Pritchett contends that her convictions are invalid because the facts proved at trial varied from the allegations in the indictments. Specifically, the indictments charged Pritchett with forging a check while the evidence at trial showed that Pritchett was guilty of forging an endorsement. Pritchett alleges that a check and an endorsement are distinct writings and, therefore, the variance was fatal to the Commonwealth's case. We disagree.
The first indictment alleged that Pritchett "did unlawfully and feloniously forge, with intent to defraud, a check." The second indictment alleged that Pritchett "did unlawfully and feloniously utter, with intent to defraud, a forged check." The third indictment charged that Pritchett did "unlawfully and feloniously take, steal and carry away $207.00 . . . by presenting a forged check. . . ."
"An indictment is a written accusation of a crime and is intended to inform the accused of the nature and cause of the accusation against him." Hairston v. Commonwealth, 2 Va. App. 211, 213, 343 S.E.2d 355, 357 (1986). A variance between the allegations contained in the indictment and the offenses proved at trial will require reversal when the variance is "fatal." "`A variance is fatal . . . only when the proof is different and irrelevant to the crime defined in the indictment and is, therefore, insufficient to prove the commission of the crime charged.'" Griffin v. Commonwealth, 13 Va. App. 409, 411, 412 S.E.2d 709, 711 (1991) (quoting Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 651-52 (1984)). "`[M]ere matters of form [will be rejected] where no injury could have resulted therefrom to the accused.'" Id. (quoting Mitchell v. Commonwealth, 141 Va. 541, 558, 127 S.E. 368, 374 (1925)).
We recently had occasion to consider the definition of forgery. "Virginia defines forgery as `the fraudulent making of a false writing, which, if genuine, would be apparently of legal efficacy.'" Muhammad v. Commonwealth, 13 Va. App. 194, 196, 409 S.E.2d 818, 819 (1991) (quoting Terry v. Commonwealth, 87 Va. 672, 674, 13 S.E. 104, 105 (1891)). "A check which has been fraudulently written or altered in a manner that possibly will operate to the injury of another constitutes a forgery."Id. From this definition, it is clear that Pritchett's alteration of the check, by endorsing the check in the name of Sonja A. Martin, constitutes a forgery. Her alteration of the check injured Sonja A. Martin. Thus, the fact that the alteration related to the endorsement of the check, rather than to the face of the check itself, is of no consequence. Because Pritchett's alteration constitutes a forgery, the evidence adduced at trial was not insufficient as a matter of law to prove the offenses charged in the indictments. See Griffin, 13 Va. App. at 411, 412 S.E.2d at 711.
Our consideration of whether the variance is fatal turns on whether the allegations in the indictments placed Pritchett on notice of the offenses charged so as to ensure a fair and impartial trial of the merits. Hairston, 2 Va. App. at 214, 343 S.E.2d at 357. Although Pritchett alleges that the variance was fatal, she does not allege that the indictments failed to apprise her sufficiently of the nature and character of the of the offenses charged. Likewise, she does not contend that she was deprived of a fair and impartial trial on the merits. Our review of the record shows that Pritchett requested and was granted a bill of particulars, admitted the crimes for which she was charged, and did not request that the indictments be amended. The record fails to demonstrate that Pritchett was prejudiced by the variance. Thus, we find that Pritchett was on notice of the nature and character of the accusations against her and the variance "could not have caused [her] harm in terms of a fair and impartial trial on the merits." Id. at 216, 343 S.E.2d at 358. Accordingly, we hold that the variance between the allegations in the indictments and the evidence at trial was not fatal.
Affirmed.