Challenor v. Commonwealth

Citations: 209 Va. 789; 167 S.E.2d 116; 1969 Va. LEXIS 179Docket: Record 6958

Court: Supreme Court of Virginia; April 28, 1969; Virginia; State Supreme Court

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Elmer M. Challenor was convicted of embezzlement, with the Supreme Court of Virginia affirming the jury's verdict. The case stemmed from an audit revealing a $21,139.33 shortage due to "lapping" in the accounts managed by Challenor, who was employed as Teller #2. The lapping scheme involved Challenor taking cash payments while failing to validate the corresponding bills, allowing him to conceal the theft by covering it with future transactions. Evidence indicated a consistent pattern of embezzlement over 30 months, which the indictment appropriately charged as a single offense. Challenor contested the findings, claiming another individual was responsible for the embezzlement, but the court found sufficient evidence to support the conviction, leading to a two-year prison sentence.

The mail teller was directed to process only check remittances and forward cash to a window teller. An expert witness for the defense stated that the mail teller had the same opportunity to commit theft as the window teller. It was suggested that the mail teller could have stolen cash received by mail and concealed accompanying bills while delivering checks for validation by Challenor. Challenor argued that other tellers could have accessed his cash drawer and validating machine during his absences, potentially allowing them to embezzle funds. However, the jury upheld the verdict of Challenor's embezzlement, finding that his records indicated repeated validations meant to conceal a shortage. Unlike the precedent cited by Challenor's counsel, which only indicated a discrepancy, this case demonstrated both a shortage and intent to conceal it. Challenor was indicted for embezzling $21,139.33 over 30 months. His motion to quash the indictment was denied, as the court found it charged a continuous scheme of embezzlement, consistent with legal standards. Prior to trial, Challenor's counsel requested specifics about the charges, including the statute the Commonwealth would rely on, which was provided as Code 18.1-109 and 18.1-110. Defense counsel argued this did not meet the statutory requirement for clarity on the charge.

Defense counsel's failure to object to the Commonwealth's advice until after the jury's verdict led to the dismissal of that assignment of error. The court granted part of the motion regarding the auditor's report, which detailed records from the Department of Public Utilities for the period from January 18 to May 7, 1965, but denied another part of the motion, which defense counsel contested. The auditor's report, though not part of the case record, was assumed to adequately inform the defendant of the charges against him, leading to the rejection of the related assignment of error.

Evidence from Teller #2 indicated embezzlement of $2,568.21 between January 31 and April 27, 1965. Defense counsel objected to the City auditor's testimony regarding a total shortage of $21,139.33, but the court deemed this testimony appropriate, as it illustrated attempts to conceal thefts during that timeframe. 

Additionally, defense counsel raised concerns about the Commonwealth's attorney's closing argument, which referenced the indictment by "seven honest and true citizens" from the grand jury. The Commonwealth argued this was a response to defense remarks, and any potential prejudice was mitigated by jury instructions. The court affirmed that an indictment does not imply guilt. 

Notes included definitions of lapping in embezzlement, details on checks used to validate bills, and references to applicable embezzlement laws. The text clarified an assignment of error regarding jury evidence related to a portion of the allegedly stolen amount.