People v. Malach

• Decision Date: 01 November 1993
• Docket Number: 151405,Docket Nos. 151224
• Citation: 202 Mich.App. 266,507 N.W.2d 834
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melinda MALACH, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Matthew S. CARRIS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 834

507 N.W.2d 834

202 Mich.App. 266

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melinda MALACH, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Matthew S. CARRIS, Defendant-Appellant.

Docket Nos. 151224, 151405.

Court of Appeals of Michigan.

Submitted Aug. 11, 1993, at Lansing.

Decided Nov. 1, 1993, at 9:10 a.m.

Released for Publication Dec. 3, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Richard H. Browne, Acting Chief, Appellate Div., and Anica Letica, Asst. Pros. Atty., for the people.

Steven R. Sonenberg, Southfield, for Melinda Malach.

Stuart L. Young, Bingham Farms, for Matthew S. Carris.

Before HOOD, P.J., and MARK J. CAVANAGH and TAYLOR, ^* JJ.

HOOD, Presiding Judge.

Defendants each were charged with one count of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548. Following a jury trial, each was convicted of involuntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, and sentenced to a term of four to fifteen years. They appeal as of right. ¹ We reverse and remand.

Defendants had arranged to sell two cartons of cigarettes to the victim and another person at far below market price. During the transaction, defendant Malach was seated behind the wheel of her car and defendant Carris was seated next to her. The engine was running. The two purchasers were standing outside the car on the driver's side.

The victim reached inside the car and gave the money to Carris, who then reached under the seat and gave the victim two cartons purportedly containing cigarettes, which were actually filled with paper. The victim took the cartons but, apparently suspecting the switch, said "wait a minute." Instead of waiting, Malach put the car in gear and accelerated. The victim hung onto the car, but eventually fell off as Malach made a turn. He later died from the injuries sustained.

Both defendants argue that the cigarette carton scam constituted obtaining money by false pretenses, not larceny, and that, therefore, they should not have been charged with felony murder arising out of a "larceny of any kind." We agree.

Both defendants moved for a directed verdict with regard to the felony-murder count. Carris also moved to quash the felony-murder indictment and objected to allowing the prosecutor to amend the information to base the felony-murder count on "larceny by false pretenses" instead of "larceny of any kind." All these arguments, however, have the same underlying legal question: Whether obtaining money by false pretenses constitutes "larceny of any kind" for purposes of the felony-murder statute. We hold that it does not.

A murder committed during the perpetration of, among other things, "larceny of any kind" is first-degree murder and punishable by life imprisonment. M.C.L. § 750.316; M.S.A. § 28.548. Even a misdemeanor larceny has been found sufficient for purposes of this statute. People v. Williams, 129 Mich.App. 362, 368, 341 N.W.2d 143 (1983), rev'd on other grounds 422 Mich. 381, 373 N.W.2d 567 (1985) (use of the defendant's confession); see also People v. Hawkins, 114 Mich.App. 714, 717, 319 N.W.2d 644 (1982).

Larceny is the taking and carrying away of the property of another, done with felonious intent and without the owner's consent. See People v. Ainsworth, 197 Mich.App. 321, 324, 495 N.W.2d 177 (1992). Obtaining money by false pretenses, on the other hand, requires a knowing false representation of fact, done with intent to deceive, which causes detrimental reliance on the representation. In re People v. Jory, 443 Mich. 403, 412, 505 N.W.2d 228 (1993); People v. Flaherty, 165 Mich.App. 113, 119, 418 N.W.2d 695 (1987); see also M.C.L. § 750.218; M.S.A. § 28.415. False pretenses and larceny are defined in separate chapters of the Penal Code. See M.C.L. § 750.356 et seq.; M.S.A. § 28.588 et seq. (chapter LII--Larceny); compare M.C.L. § 750.218; M.S.A. § 28.415 (chapter XXXVI--False Pretenses and False Representation).

We acknowledge that obtaining money by false pretenses is often referred to as "larceny by false pretenses." See Jory, supra at 410, 505 N.W.2d 228; see also Flaherty, supra at 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 pretenses:

"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 false pretenses." [Id., at 350, 294 N.W.2d 197, quoting People v. Martin, 116 Mich. 446, 450, 74 N.W. 653 (1898) (emphasis added).]

The distinction between the two offenses therefore depends entirely upon the intent of the victim: if the owner of the goods intends to keep title but part with possession, the crime is larceny; if the owner intends to part with both title and possession, albeit for the wrong reasons, the crime is false pretenses. Long, supra at 350-351, 294 N.W.2d 197 (relying on Martin, supra at 450-451, 74 N.W. 653); see also People v. Jones, 143 Mich.App. 775, 780, 372 N.W.2d 657 (1985). In Long, supra at 351-352, 294 N.W.2d 197, for example, the defendant tricked a cashier into voluntarily giving him more change than he was entitled to; the offense was obtaining money under false pretenses. In Jones, supra at 776-777, 780, 372 N.W.2d 657, on the other hand, the defendant took money from a cashier by sleight of hand; the crime was larceny because he took the money without her consent. As noted in Long, supra at 352, 294 N.W.2d 197:

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. Against this historical background, our Legislature early chose to recognize the offense. The conduct charged against defendant falls within the legislatively recognized category; thus marked, it is distinct from larceny.

See also Jory, supra at 412, 505 N.W.2d 228.

In this case, the trial court found that the victim clearly intended to transfer both title and possession of the money in exchange for what he believed to be two cartons of cigarettes. That intent was obviously "the result of fraudulent contrivances" and was induced "by fraudulent means." Long, supra at 350, 294 N.W.2d 197. However, "[a]t the time of [its] occurrence," the victim surrendered possession with the intent, "however, hastily or ill-advisedly formed, to transfer title." Id. at 352, 294 N.W.2d 197 (emphasis added). The underlying crime was, therefore, taking money by false pretenses, not larceny, and for that reason could not form the basis for a felony-murder charge.

Defendants' motions for a directed verdict should have been granted because, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have found the elements of the crime of felony murder--specifically, the underlying "larceny of any kind"--proven beyond a reasonable doubt. See People v. Daniels, 192 Mich.App. 658, 665, 482 N.W.2d 176 (1992). We note that the trial court did not challenge defendants' argument that the crime committed was obtaining money by false pretenses. In fact, the court specifically found--and the prosecutor has not cross appealed from that finding--that the decedent intended to transfer both title and possession of the cash and that, therefore, the evidence did not support a charge of larceny by trick or of larceny by conversion. Rather, the court solely relied on the fact that many decisions refer to this crime as "larceny by false pretenses." This, we conclude, is an unfortunately confusing misnomer.

Carris' motion to quash the information also should have been granted because, as a matter of law, the offense of obtaining money by false pretenses could not support a charge of felony murder. See People v. Thomas, 438 Mich. 448, 452, 475 N.W.2d 288 (1991) (motion to quash based on a question of law is reviewed for error, not abuse of discretion). Again, we note that the trial court specifically rejected any argument that the facts could support a charge of larceny by conversion or larceny by trick and that no cross appeal was taken from that finding.

Similarly, the prosecutor's motion to amend the information should have been denied. Again, the court's ruling was based upon the erroneous legal ruling that taking money by false pretenses was "larceny by false pretenses." The trial court concluded that defendants were not and could not be surprised by this charge...