Foster v. Commonwealth

606 S.E.2d 518, 44 Va. App. 574, 2004 Va. App. LEXIS 626
CourtCourt of Appeals of Virginia
DecidedDecember 21, 2004
Docket2535034
StatusPublished
Cited by17 cases

This text of 606 S.E.2d 518 (Foster v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Commonwealth, 606 S.E.2d 518, 44 Va. App. 574, 2004 Va. App. LEXIS 626 (Va. Ct. App. 2004).

Opinions

BUMGARDNER, III, Judge.

Laura L. Foster appeals her misdemeanor conviction for uttering a bad check, Code § 18.2-181.1 She maintains the [576]*576statute of limitations, Code § 19.2-8,2 barred her prosecution. We affirm her conviction.

The defendant uttered a bad check to Wal-Mart for $140.88. Wal-Mart did not obtain a warrant until fourteen months later. The trial court ruled the five-year statute of limitations for petit larceny applied and denied the plea of the statute of limitations.

Generally, felonies are not subject to a statute of limitations. See generally Ronald J. Bacigal, Criminal Procedure § 14-9, 413 (2004). Generally, misdemeanors are subject to a one-year limitation, but petit larceny is subject to a five-year limitation. Code § 19.2-8.

At early common law, larceny was the only theft crime, but it required a taking from the possession of another. New 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 284, 503 (2004). In 1847-48, the General Assembly began enacting statutes that declared persons who committed various acts of theft “shall be deemed guilty of larceny thereof.” 1847-48 Va. Acts, ch. 4. It employed that legal fiction in an effort to consolidate the law of theft and to eliminate the “indistinct,” “almost imaginar/’ differences in what “all amount to a criminal and fraudulent conversion by one man to his own use of another man’s [577]*577property.” Anable v. Commonwealth, 65 Va. (24 Gratt.) 563, 580-81 (1873) (Moncure, P., dissenting). The General Assembly has continued that practice to the present. 2003 Va. Acts, ch. 733.

Code § 18.2-181 declares that any person who utters a bad check “shall be guilty of larceny.” The defendant concedes she was convicted of larceny, but she argues her conviction was not petit larceny to which the five-year limitation applies. She argues that Code § 18.2-96 defines the term “petit larceny,”3 and only violations of that single code section receive the five-year statute of limitations.

The term larceny is defined 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.” Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945) (citing Vaughan v. Lytton, 126 Va. 671, 679, 101 S.E. 865, 867 (1920)). Larceny is either grand or petit, “offenses, which are considerably distinguished in their punishment, but not otherwise.” 4 William Blackstone, Commentaries on the Laws of England ch. 17, 229 (1765).

The Statute of Westminster I, 3 Edw., ch. 15 (1275), first created the classifications of petit and grand larceny and distinguished the two by the punishment prescribed. “Both were felonies.” Bell v. Commonwealth, 167 Va. 526, 531, 189 S.E. 441, 444 (1937). Grand larceny and petit larceny were not different crimes, but they were penalty gradations for the single offense, larceny. “At common law, there was no distinction between grand and petit larceny except in the punish[578]*578ment, which was death in the one case and whipping in the other, — by statute extended to transportation for seven years. 4 George 1, chapter 11, 4th Blackstone, pages 229, 238.” Id. The term “larceny” includes both petit and grand grades of the offense.

The value of the goods taken is not an element of petit larceny, but the value of the goods is an essential element of grand larceny. Knight v. Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 (1983). “Proof that an article has some value is sufficient to warrant a conviction of petit larceny, but where the value of the thing stolen determines the grade of the offense, the value must be alleged and the Commonwealth must prove the value to be the statutory amount.” Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954).

From its first enactment in 1920, the bad check law has provided that anyone who obtained property by means of a worthless check shall be deemed guilty of larceny. Page v. Wilson, 168 Va. 447, 450-51, 191 S.E. 678, 680 (1937). The original act did not include any penalty provision. The penalty was supplied by the provisions applicable to larceny. In 1926, the offense became a misdemeanor. 1926 Va. Acts, ch. 292. In 1930, the General Assembly changed the offense to grand larceny when a sufficient sum was involved. 168 Va. at 451, 191 S.E. at 680. Final amendments in 1934 established the act in its present form.

Despite the “frequent raising and lowering of the degree of crime dealt with,” the bad check statute has retained a uniform, “practically identical” definition of the crime. Cook v. Commonwealth, 178 Va. 251, 256, 16 S.E.2d 635, 637 (1941) (tracing the evolution of the bad check statute). From its first enactment, the bad check statute encompassed both the misdemeanor and felony grades of the crime with the term “larceny.” The statute punished the taking of property with no intent to pay for it as a form of larceny, and it adopted the gradations applicable to larceny. “The giving of bad checks [579]*579for what purports to be cash purchases is discouraged.” Page, 168 Va. at 452, 191 S.E. at 681.

The 1934 Act consisted of a single section of the Code broken into three numbered paragraphs. “The first paragraph of the statute, containing the definition of the offense and designating it as larceny, remains virtually unchanged since the statute was originally passed by the General Assembly in 1920.” Bray v. Commonwealth, 9 Va.App. 417, 422, 388 S.E.2d 837, 839 (1990). The “Third” paragraph, which created the inference of intent, is unchanged, but now appears as separate Code § 18.2-183.

The “Second” paragraph of the 1934 Act stated the penalty if the defendant “would be guilty of grand larceny.” It made no mention of the penalty if the defendant would have been guilty of petit larceny.

Any person who, under the provisions of this act, would be guilty of grand larceny shall, in the discretion of the jury or court trying the case without a jury, be confined in the penitentiary not less than one year nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding five hundred dollars.

1934 Va. Acts, ch. 363. The first phrase in the “Second” paragraph, “would be guilty of grand larceny,” clearly linked directly with the last phrase in the “First” paragraph, “guilty of larceny” and implied grand larceny is only one form of that larceny.

By 1934, the maximum penalty for felony bad check was lower than that for simple grand larceny. The bad check statute required a special provision prescribing the penalty for the felony grade because it differed from the general provision for grand larceny. The statute had no need to provide a penalty for the misdemeanor.

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606 S.E.2d 518 (Court of Appeals of Virginia, 2004)

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Bluebook (online)
606 S.E.2d 518, 44 Va. App. 574, 2004 Va. App. LEXIS 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-commonwealth-vactapp-2004.