People v. Long
Decision Date | 16 July 1980 |
Docket Number | Docket No. 63102 |
Citation | 409 Mich. 346,294 N.W.2d 197 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Archie Cornelius LONG, Defendant-Appellant. |
Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John L. Wildeboer, Chief App. Asst. Pros. Atty., Jackson, for the People.
Lynn Chard and F. Martin Tieber, Deputy Asst. State App. Defenders, Detroit, for defendant-appellant.
Defendant was charged with two counts of larceny in a building. 1 On October 19, 1977, he was convicted, as charged, by a jury. He was sentenced to serve from 14 months to 4 years imprisonment on November 4, 1977. We conclude that the charged conduct, as outlined by the evidence introduced at trial, will not sustain the convictions of larceny.
Evidence introduced by the prosecution at trial indicated that the defendant was involved in a scheme whereby he short-changed two cashiers $10 each. He did so by creating confusion and impliedly representing that he was giving them an amount of money equal to that which he was receiving. By distracting them and asking for various amounts of change, he induced them to give him $10 more than they received from him.
Prior to trial, defendant moved to quash the information on the basis that larceny, as charged, required a taking against the will and without the consent of the owner. Contending that there was a voluntary exchange of money, counsel argued that the proper charge was either obtaining money under false pretenses 2 or larceny by trick 3 rather than larceny in a building. The trial court denied the motion to quash, agreeing with the prosecutor's view that the evidence at the preliminary examination would support the charge of larceny by trick and that the prosecutor had the discretion and power to bring the charge of larceny in a building.
In the Court of Appeals defendant raised two issues, contending first that he had been improperly charged with larceny (the correct charge being obtaining property under false pretenses); and second that if the prosecution could utilize either charge, such unguided discretion, potentially imposing vastly different maximum penalties, would violate due process and equal protection. The Court of Appeals affirmed the defendant's conviction in an unpublished memorandum opinion. Defendant sought our review by request under Administrative Order 1977-4, 400 Mich. lxvii. By order of September 26, 1979, we remanded to the Court of Appeals for amplification of the facts and the reasons underlying its decision. 4 In its amplified opinion 5 the Court of Appeals, observing that the distinction between the crime of larceny by trick and that of obtaining property under false pretenses turns upon the intent of the owner to part with the property, People v. Martin, 116 Mich. 446, 74 N.W. 653 (1898), concluded:
In our view, the Court of Appeals has incorrectly construed and applied the rule of People v. Martin in distinguishing between larceny and false pretenses. We find this case to be one of false pretenses.
In People v. Martin, this Court identified the distinction between larceny and false pretenses as follows:
" " 116 Mich. 450-451, 74 N.W. 654-655.
The rule noted in Martin governs characterization of defendant's offense in the present case. 6 By distracting the cashiers and asking them for various amounts of change, defendant induced them to give him $10 more than they received from him. The partings were induced by defendant's fraudulent representations that he had received an inadequate amount of change. While undoubtedly the cashiers would not have parted with the "additional" sum had they recognized it as such, it is apparent that the partings were voluntary and advertent. At the time of their occurrence, the partings represented a surrendering of possession accompanied by an intention, however hastily or ill-advisedly formed, to transfer title. Because both possession and title were intended to be transferred, defendant's offense was that of obtaining money under false pretenses.
The creation of the offense of false pretenses by statute had its historical origins in the lawmaker's need to fill a void in the common law which existed by virtue of the fact that common-law larceny did not extend to punish the party who, without taking and carrying away, had obtained both possession and title to another's property. 7 Against this historical background, our Legislature early chose to recognize the offense. 8 The conduct charged against defendant falls within the legislatively recognized category; thus marked, it is distinct from larceny.
Reversed and defendant is ordered discharged.
The Court of Appeals, on remand, properly applied the well-established general rule which distinguishes the offenses of larceny and false pretenses, as this Court stated the rule in People v. Martin, 116 Mich. 446, 450-451, 74 N.W. 653 (1898).
The essence of the Martin distinction can be extracted thus:
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Bohling v. State, S-16-0144
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