Virginia Code

Va. Code Ann. § 19.2-226 (2026)

What defects in indictments not to vitiate them

✓ current as of May 2026

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No indictment or other accusation shall be quashed or deemed invalid:

(1) For omitting to set forth that it is upon the oaths of the jurors or upon their oaths and affirmations;

(2) For the insertion of the words "upon their oath," instead of "upon their oaths";

(3) For not in terms alleging that the offense was committed "within the jurisdiction of the court" when the averments show that the case is one of which the court has jurisdiction;

(4) For the omission or misstatement of the title, occupation, estate, or degree of the accused or of the name or place of his residence;

(5) For omitting the words "with force and arms" or the statement of any particular kind of force and arms;

(6) For omitting to state, or stating imperfectly, the time at which the offense was committed when time is not the essence of the offense;

(7) For failing to allege the kind or value of an instrument which caused death or to allege that it was of no value;

(8) For omitting to charge the offense to be "against the form of the statute or statutes";

(9) For the omission or insertion of any other words of mere form or surplusage; or

(10) For omitting or stating incorrectly the Virginia crime code references for the particular offense or offenses covered.

Nor shall it be abated for any misnomer of the accused; but the court may, in case of a misnomer appearing before or in the course of a trial, forthwith cause the indictment or accusation to be amended according to the fact.

Code 1950, § 19.1-172; 1960, c. 366; 1975, c. 495; 2003, c. 148.

Notes of Decisions

Cited in 43 cases (10 in the last 5 years), 1978–2026 · leading case: Reed v. Com., 706 S.E.2d 854 (Va. 2011).

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Reed v. Com., 706 S.E.2d 854 (Va. 2011). · cites it 10× “" The indictments in this case were constitutionally infirm, Reed contends, because Code § 19.2-226 provides for ten express defects in an indictment that will not result in the indictment being vitiated, and the absence of the foreman's signature from the indictment is not…”

Purvy v. Commonwealth, 717 S.E.2d 847 (Va. Ct. App. 2011). · cites it 4× “Reversed. 1 . Defects that will not invalidate an indictment include "omitting to state, or stating imperfectly, the time at which the offense was committed when time is not the essence of the offense,” Code § 19.”

Marlowe v. Commonwealth, 347 S.E.2d 167 (Va. Ct. App. 1986). · cites it 2× “A conviction could be found if the jury finds beyond a reasonable doubt that the offense set forth in the indictment . . . occurred as alleged on or about the 17th day of February, 1984.”

Pedersen v. City of Richmond, 254 S.E.2d 95 (Va. 1979). · cites it 2× “Code § 19.2-226. The evidence shows that Palmer was standing alone on Foushee Street late at night when Pedersen stopped his automobile, rolled down the window, and invited the officer to sit in the car because of the cold weather.”

Ostrander v. Commonwealth, 658 S.E.2d 346 (Va. Ct. App. 2008). · cites it 4× “" However, although the indictment alleges that Ostrander committed these offenses on August 28, 2005, for the purposes of a "same offense" double jeopardy analysis, neither the trial court nor we are limited to the date alleged on the indictment any more than the fact finder…”

Scott v. Commonwealth, 636 S.E.2d 893 (Va. Ct. App. 2006). · cites it 2× “Further, “[n]o indictment or other accusation shall be quashed or deemed invalid: .”

Hairston v. Commonwealth, 343 S.E.2d 355 (Va. Ct. App. 1986). · cites it 2× “Code § 19.2-226(9). Notice to the accused of the offense charged against him is the rockbed requirement which insures the accused a fair and impartial trial on the merits and forms the key to the fatal variance rule.”

Raja v. Commonwealth, 581 S.E.2d 237 (Va. Ct. App. 2003). · cites it 2× “” In such cases, where the date of the offense is “not of the essence of the offense,” nor “shown to be significant,” the Commonwealth is not required to charge that it occurred on a specific date.”

Clinebell v. Commonwealth, 349 S.E.2d 676 (Va. Ct. App. 1986). · cites it 2× “Clinebell, on appeal, contends that the Commonwealth’s failure to provide a meaningful bill of particulars and its amendments of two of the indictments, which actually increased the time span alleged in FL 84-1346, denied him the opportunity to prepare an adequate defense and…”

Clifford v. Commonwealth, 633 S.E.2d 178 (Va. Ct. App. 2006). · cites it 2× “” Code § 19.2-226 further provides that “[n]o indictment or other accusation shall be quashed or deemed invalid .”

Commonwealth v. Nuckles, 587 S.E.2d 695 (Va. 2003). · cites it 2× “” could not be dismissed as “surplusage” under Code § 19.2-226(9) “because it described, limited, and qualified that which was necessary to charge.”

James C. Howard, Jr. v. Commonwealth of Virginia, 760 S.E.2d 828 (Va. Ct. App. 2014). · cites it 2× “2-220 specifies the necessary content for an indictment, and Code § 19.2-226 lists deficiencies that do not invalidate the indictment.”

Show all 43 citing cases →

— Va. Code Ann. § 19.2-226(10) — 2 cases

Hilliard Dywane Moore v. Commonwealth of Virginia (Va. Ct. App. 2019).

Norman T. Johnson v. Commonwealth of Virginia (Va. Ct. App. 2020).

— Va. Code Ann. § 19.2-226(6) — 19 cases

Marlowe v. Commonwealth, 347 S.E.2d 167 (Va. Ct. App. 1986). “A conviction could be found if the jury finds beyond a reasonable doubt that the offense set forth in the indictment . . . occurred as alleged on or about the 17th day of February, 1984.”

Purvy v. Commonwealth, 717 S.E.2d 847 (Va. Ct. App. 2011). “Reversed. 1 . Defects that will not invalidate an indictment include "omitting to state, or stating imperfectly, the time at which the offense was committed when time is not the essence of the offense,” Code § 19.”

Ostrander v. Commonwealth, 658 S.E.2d 346 (Va. Ct. App. 2008). “" However, although the indictment alleges that Ostrander committed these offenses on August 28, 2005, for the purposes of a "same offense" double jeopardy analysis, neither the trial court nor we are limited to the date alleged on the indictment any more than the fact finder…”

Raja v. Commonwealth, 581 S.E.2d 237 (Va. Ct. App. 2003). “” In such cases, where the date of the offense is “not of the essence of the offense,” nor “shown to be significant,” the Commonwealth is not required to charge that it occurred on a specific date.”

Clinebell v. Commonwealth, 349 S.E.2d 676 (Va. Ct. App. 1986). “Clinebell, on appeal, contends that the Commonwealth’s failure to provide a meaningful bill of particulars and its amendments of two of the indictments, which actually increased the time span alleged in FL 84-1346, denied him the opportunity to prepare an adequate defense and…”

— Va. Code Ann. § 19.2-226(9) — 8 cases

Hairston v. Commonwealth, 343 S.E.2d 355 (Va. Ct. App. 1986). “Code § 19.2-226(9). Notice to the accused of the offense charged against him is the rockbed requirement which insures the accused a fair and impartial trial on the merits and forms the key to the fatal variance rule.”

Commonwealth v. Nuckles, 587 S.E.2d 695 (Va. 2003). “” could not be dismissed as “surplusage” under Code § 19.2-226(9) “because it described, limited, and qualified that which was necessary to charge.”

Claude Gene Sloan v. Commonwealth of Virginia, 544 S.E.2d 375 (Va. Ct. App. 2001).

Dianna Carol Spencer v. Commonwealth of Virginia (Va. Ct. App. 2024).

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