People v. Long

Decision Date16 July 1980
Docket NumberDocket No. 63102
Citation409 Mich. 346,294 N.W.2d 197
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Archie Cornelius LONG, Defendant-Appellant.
CourtMichigan 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.

PER CURIAM.

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.

I

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 The Court of Appeals affirmed the defendant's conviction in an unpublished memorandum opinion.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 the instant case, the cashiers did not knowingly transfer an extra $10 to the defendant relying on some false representations of the defendant. Rather, the cashiers, believing they had transferred only an amount equal to that received in making change for the defendant, were induced by trick or artifice of the defendant to part with possession of the extra $10.

"Taking into consideration the intention of the parties, it is obvious that the cashiers intended only to exchange various denominations of money with the defendant quid pro quo. The cashiers had no intention to transfer possession or title to any monies in excess of that received. The defendant, on the other hand, intended to obtain through use of artifice, possession of the extra $10 and intended thereby to relieve the owner of her possession.

"The absence of intent on the part of the cashiers to knowingly and voluntarily transfer possession or title to any money in excess of that received places the defendant's conduct within the ambit of larceny rather than within the ambit of obtaining property under false pretenses."

II

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:

"It is sometimes difficult to determine in a given case whether the offense is larceny or whether it is a case of false pretenses. We think the rule to be gathered from the authorities may be stated to be: In larceny, the owner of the thing stolen from has no intention to part with his property therein; in false pretenses, the owner does intend to part with his property in the thing, but this intention is the result of fraudulent contrivances. If the owner did not part with his property in the thing, but simply delivered the possession, the ownership remaining unchanged, for the purpose of having the person to whom the property was delivered use it for a certain special and particular purpose, for the owner, the title would not pass, and its felonious conversion would be larceny. A distinction is made between a bare charge for special use of the thing, and a general bailment; and it is not larceny if the owner intends to part with the property and deliver the possession absolutely, although he has been induced to part with the goods by fraudulent means. If, by trick or artifice, the owner of property is induced to part with the possession to one who receives the property with felonious intent, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but right of property also, the offense of the party obtaining the thing will not be larceny, but that of obtaining the goods by false pretenses. As was said in Loomis v. People, (67 N.Y. 322, 329; 23 Am.Rep. 123 (1876)):

" 'There is, to be sure, a narrow margin between a case of larceny and one where the property has been obtained by false pretenses. The distinction is a very nice one, but still very important. The character of the crime depends upon the intention of the parties, and that intention determines the nature of the offense. In the former case, where, by fraud, conspiracy, or artifice, the possession is obtained with a felonious design, and the title still remains in the owner, larceny is established; while in the latter, where title, as well as possession, is absolutely parted with, the crime is false pretenses. It will be observed that the intention of the owner to part with his property is the gist and essence of the offense of larceny, and the vital point upon which the crime hinges and is to be determined.' " 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.

FITZGERALD, Deputy C. J., and MOODY, LEVIN and KAVANAGH, JJ., concur.

RYAN, Justice, dissenting.

I dissent.

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:

"We think the rule to be gathered from the authorities may be stated to be: In larceny, the owner of the thing stolen has no intention to part with his property therein; in false pretenses, the owner does intend to part with his property in the thing, but this intention is the result of fraudulent contrivances. If the owner did not part with his property in the thing, but simply delivered the possession, the ownership remaining unchanged, for the purpose of having the person to whom the property was delivered use it for a certain special and particular purpose, for the owner, the title would not pass, and its felonious conversion would be larceny. A distinction is made between a bare charge for special use of the thing, and a general bailment; and it is not larceny if the owner intends to part with the property and deliver the possession absolutely, although he has been induced to part with the goods by fraudulent means. If, by trick or artifice, the owner of property is induced to part with the possession to one who receives the property with felonious intent, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but right of property also, the offense of the party obtaining the thing will not be larceny, but that of obtaining the goods by...

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8 cases
  • People v. Oros
    • United States
    • Court of Appeal of Michigan — District of US
    • 8 Junio 2017
    ...does not intend to part with title. People v. Malach, 202 Mich.App. 266, 271, 507 N.W.2d 834 (1993), citing People v. Long, 409 Mich. 346, 3501351, 294 N.W.2d 197 (1980).On appeal, the prosecution does not argue that defendant could have been properly convicted of felony murder using false ......
  • Bohling v. State
    • United States
    • Wyoming Supreme Court
    • 25 Enero 2017
    ...mean formal title, such as to a vehicle, rather the simple concept of ownership equates to title. See id. ; see also People v. Long, 409 Mich. 346, 294 N.W.2d 197 (1980) (explaining that the defendant, by distracting cashiers and asking for various amounts of change received ten dollars mor......
  • Bohling v. State, S-16-0144
    • United States
    • Wyoming Supreme Court
    • 25 Enero 2017
    ...mean formal title, such as to a vehicle, rather the simple concept of ownership equates to title. See id.; see also People v. Long, 294 N.W.2d 197 (Mich. 1980) (explaining that the defendant, by distracting cashiers and asking for various amounts of change received ten dollars more than he ......
  • People v. Malach
    • United States
    • Court of Appeal of Michigan — District of US
    • 1 Noviembre 1993
    ...119, 418 N.W.2d 695. However, in light of the analysis that follows, we conclude that this is merely a misnomer. 2 In People v. Long, 409 Mich. 346, 294 N.W.2d 197 (1980), our Supreme Court explained the historical difference between the crimes of larceny and obtaining money by false "In la......
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