People v. Wilson

332 N.W.2d 465, 122 Mich. App. 270

Opinions

Per Curiam.

Defendant pled guilty to larceny by trick. MCL 750.356; MSA 28.588. He appeals by right.

On various occasions, an individual apparently posed as a runner for a Detroit hotel and bilked some armed forces recruits out of the money, telling them he must take it for safekeeping. An undercover police officer, assigned to discover the perpetrator of this scam, was among those recruits when defendant made his pitch for their money. Once the officer and the recruits had enclosed their money in an envelope for defendant, the officer arrested him.

Although the defendant contends that his guilty plea lacked a factual basis, the plea in fact presents a jurisdictional defect. A claim as to a jurisdictional defect is not waived by a guilty plea. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), cert den 429 US 951 (1976).

The defendant was originally charged with obtaining property by false pretenses. The trial court, however, granted the defendant’s motion to quash the information for failing to allege facts sufficient to support the charge. The trial court found — and both parties agreed — that the undercover agent did not rely on the defendant’s misrepresentations in turning over his money. Because such reliance is an element of the offense of obtaining property by false pretenses, the court quashed the information. Nevertheless, the court allowed the people to add a count of larceny by trick, later accepting the defendant’s plea to that charge.

The trial court and the parties apparently believed that, while an element of the crime of obtaining property by false pretenses, reliance is not necessary to the offense of larceny by trick. Although these two offenses are distinct, both require that the victim part with his property in reliance on the defendant’s misrepresentations. See People v Long, 409 Mich 346, 350-351; 294 NW2d 197 (1980). The distinction between the two offenses is stated in People v Martin, 116 Mich 446, 450; 74 NW 653 (1898):

"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 pretences.”

The victim’s intention to part only with possession of his property — not his failure to rely on the defendant’s misrepresentations — converts the offense of false pretenses into larceny by trick. Both require reliance. The trial court found that the officer did not rely on the defendant’s misrepresentations when he turned over the money. We see no reason to disturb the court’s finding. Obviously, the undercover officer, aware of the defendant’s ploy, was not "tricked” by the defendant. After this ruling the people could have proceeded no further with their prosecution of larceny by trick because, as a matter of law, the people could not have established all the elements of that offense. Accordingly, we reverse the defendant’s conviction and order him discharged.

Reversed.