Virginia Court of Appeals 06/08

Hudgins v. Commonwealth (en banc) - Subject: The relationship between a Robbery and a Larceny

Both petit larceny and grand larceny are lesser included offenses in the offense of robbery. However, a court may not convict someone found not guilty of a robbery of grand larceny if the elements of the grand larceny are not alleged in the indictment.

After a finding of not guilty in a robbery prosecution, the prosecutor may not indict on grand larceny even though there are some different elements (in particular the necessity of alleging a sum taken for grand larceny) because both crimes require a finding of guilt on the lesser included crime of petit larceny.

Comment: While a proper result, the way this is laid out would seem to leave whether or not a jury will be offered the chance to convict of a lesser included grand larceny entirely in the hands of the prosecutor. If he wants to make sure that there is no real other option but to convict on the robbery charge he can artfully craft the indictment so that no instruction for a grand larceny can be offered by the Defense. Unless the judge would amend the indictment on the motion of the Defense. I've never actually tried that so I'm not sure if it is allowed under Virginia law.