Gardner v. Commonwealth

546 S.E.2d 686, 262 Va. 18, 2001 Va. LEXIS 80
CourtSupreme Court of Virginia
DecidedJune 8, 2001
DocketRecord 002143
StatusPublished
Cited by24 cases

This text of 546 S.E.2d 686 (Gardner v. Commonwealth) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gardner v. Commonwealth, 546 S.E.2d 686, 262 Va. 18, 2001 Va. LEXIS 80 (Va. 2001).

Opinions

CHIEF JUSTICE CARRICO

delivered the opinion of the Court.

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 [20]*20consider 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.

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:

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, cit[21]*21ing 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.”

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 was subject to substantial federal supervision and control. Hence, “the warrant retained by the [22]*22[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.

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Bluebook (online)
546 S.E.2d 686, 262 Va. 18, 2001 Va. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-commonwealth-va-2001.