Wilder v. Commonwealth
In Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d 411 (1976), the original indictment "stated no offense" and the accused moved to quash prior to trial, asserting both his constitutional and statutory rights to a properly framed accusation. Id. at 146, 225 S.E.2d at 412-13.
After denying the motion, the trial court amended the defective indictment, despite Wilder's further objection. The Supreme Court of Virginia reversed, reasoning that the court was without authority to dispense with the properly asserted fundamental rights of the accused by amendment of a constitutionally flawed indictment.
In Wilder v. Commonwealth, the statutory section under which defendant was charged dealt with "the acts of Taking a credit card, Obtaining a credit card, Withholding a credit card, and Receiving a credit card" while the "challenged indictment charged defendant with 'possession' of stolen credit cards." Wilder, 217 Va. at 147, 225 S.E.2d at 413.
The Supreme Court explained, "in the context of subsection (a) possession is not synonymous with taking, obtaining, withholding, or receiving.
While possession may Result from any of the foregoing acts, the subsection deals with the Manner in which possession is acquired and not with possession alone." Id.
Therefore, the court held that "a charge of mere possession of a stolen credit card is not sufficient to state the offense of credit card theft under subsection (a)." Id.
Nor could the reference to the statute save the indictment because "such references support, but do not replace, the 'definite written statement.'" Id. at 148, 225 S.E.2d at 413.