Lora Como

Memorandum 2
Professor Binder
Advanced Criminal Law: Theft Statutes in New York and Michigan
November 5, 2004

The People v. Malach

The case of People v. Malach, 507 N.W.2d 834, (Mich. Ct. App. 1993), illustrates the modern

judicial implications of a state’s failure to incorporate the English common law crime of larceny and her

attendant relatives - larceny by trick, embezzlement, and false pretenses - into the same family of crimes

known as theft. The historical need for the incorporation of these crimes arose because prosecutors

sometimes charged guilty defendants with the wrong crime, and they escaped due punishment. Due to

the difficulty of drawing fine distinctions between these rather amorphous crimes, some states

incorporated them under the common charge of “theft.” Therefore, a state’s statutory architecture of theft

can affect defendants and prosecutors alike because the crime charged may or may not be the crime

committed. New York consolidates the common law larceny crimes into a theft statute, while Michigan

does not. The Michigan case of People v. Malach involves the application of the felony murder statute to

an underlying theft crime, and it forces Michigan to confront the difference between larceny and false

pretenses. Had Malach occurred in New York, the prosecution would have had to confront the difference

between larceny and robbery.

Sometime in 1993, Melinda Malach and Matthew Carris agreed to sell two cartons of cigarettes

to two people at well below market price. Malach and Carris met the two purchasers and Malach sat in

the driver’s seat while Carris in the passenger’s seat. The two purchasers stood outside on Malach’s side

of the car. They gave Malach the money in exchange for what they believed were two cartons of

cigarettes, but were actually cigarette cartons filled with paper. After the exchange, the purchaser, who

“suspected the switch,” said “wait a minute,” but Malach accelerated away. The purchaser latched onto

the moving car, but was subsequently fatally injured when the car negotiated a turn. Michigan charged

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Malach and Carris with first-degree felony murder under M.C.L.A. 750.316(b) on the theory that they had

committed “larceny of any kind” in satisfaction of the statute’s predicate act language. On appeal, the

question was whether the state should have charged the defendants with larceny or obtaining money by

false pretenses – an outcome with substantial sentencing consequences for Malach and Carris. A

conviction of obtaining money by false pretenses would preclude a felony murder conviction because,

technically, false pretenses is not “larceny of any kind.”

Michigan does not consolidate larceny crimes under the common umbrella of theft like New

York. New York’s theft statute defines larceny as a “wrongful taking . . .committed in any of the

following ways: by conduct heretofore known as common law larceny by trespassory taking, common

law larceny by trick, or obtaining property by false pretenses, by acquiring lost property, by issuing a bad

check, by false promise, or by extortion.” N.Y. Penal § 155.05. The penal code refers to these crimes,

among others, as offenses involving theft, in recognition of the fact that the English common law

definition of larceny omitted many more creative forms of theft. Michigan foregoes such an expansion of

larceny. In fact, Michigan fails to define larceny at all. Rather it states, “a person who commits larceny

by stealing any of the following property of another person is guilty of a crime as provided for in this

section.” Even though New York and Michigan differ statutorily, the outcome of Malach in either state

still depends upon whether what the defendants did was larceny as opposed to, in Michigan, obtaining

money by false pretenses, or robbery in New York.

In Malach, the court held that the crime of obtaining money by false pretenses did not constitute

larceny for the purposes of the felony murder statute. First, the court noted that even misdemeanor

larceny will suffice to land one in prison for life for felony murder, but it noted that since larceny and

obtaining money by false pretenses are defined in different chapters of the penal code, they must be

different crimes. The court did acknowledge that obtaining money by false pretenses is usually referred

to as “larceny by false pretenses,” but the court concluded that, in light of its analysis, this was merely a

misnomer. Therefore, Malach was ineligible for a charge of felony murder.

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 In its analysis, the court immediately rejected the prosecutor’s conclusory statement that

obtaining money by false pretenses must be a form of larceny since he held the discretion to charge it in

the same indictment. In its discussion of the difference between the two offenses, the court quoted the

People v. Long, 294 N.W.2d 197, (Mich. 1980) which essentially reiterated the rule first defined in the

People v. Martin, 74 N.W. 653, (Mich. 1898). Martin established the Michigan rule that the difference

between larceny by trick and the crime of false pretenses depended upon the intent of the victim when he

relinquished his property. Interestingly enough, Martin derived this rule from the New York case of

Loomis v. People, 67 N.Y. 322, (1876). Twenty-two years before Martin, the Loomis court had been

blunt: “The character of the crime depends upon the intention of the parties . . . the intention of the owner

to part with his property is the gist and essence of the offence.” Id. Martin adopted this analysis as its

own and promulgated the notion that passage of title or possession is determined according to the intent

of the victim.

The Long case relied on the Martin/Loomis rule, yet the victim’s intent proved as unhelpful in

explaining the defendant’s crime as it would prove to be in Malach. The defendant Long was convicted

of larceny by trick for convincing two retail cashiers that they had given him improper change. He had

relieved the two cashiers of twenty dollars, and the prosecutor had charged him with larceny in a building

in the indictment, which the defendant moved to quash. The trial court sided with the prosecutor and

rejected Long’s argument that he should have either been charged with larceny by trick or false pretenses.

The court reasoned that the prosecutor had the privilege to charge larceny in a building because the

evidence also tended to show larceny by trick. The court of appeals reversed.

The appeals court first found the ability to levy both charges violations of due process and equal

protection and then rejected the trial court’s apparently convoluted, “amplified,” and erroneous reasoning

in its application of the Martin rule. It refashioned the crime in these terms:

The partings were induced by defendant's fraudulent representations that he had received
an inadequate amount of change. 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.

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This rendering differs from the court below only in degrees of judgment. Both courts applied the victim’s

intent to pass title as a measure of the perpetrator’s larcenous ways, but each reached different findings of

guilt. However, the court of appeals, on the side of the defense, took special note at the end of its opinion

to recognize that the Michigan legislature had chosen to acknowledge false pretenses as patently not

larceny because common-law larceny just did not extend that far. Therefore, the legislature had chosen to

recognize the crime of obtaining money by false pretenses as distinct from larceny, and Long’s conviction

was reversed.

Malach seized upon this line of reasoning. It upheld the trial court’s finding 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 . . .’induced by fraudulent means’.” Therefore, as in

Long, the crime was obtaining money by false pretenses, not larceny, and since obtaining money by false

pretenses was not a predicate crime of felony murder, i.e., not larceny of any kind, the court of appeals in

Malach reversed and remanded.

Here it bears noting that the rule promulgated in Michigan is an erroneous construction of the

difference between the two crimes. See Wayne LaFave, CRIMINAL LAW (4th ed. 2003) §19.7(d) at 963. In

terms of title and possession, larceny by trick at common law requires only an acquisition of possession

through the use of some sort of artifice, while false pretenses calls for the acquisition of both title and

possession through a false representation. Understandably, the only practical measure appears in terms of

what the victim meant to do, possibly because any trier can easily step into the victim’s shoes to measure

it. Another key difference between larceny by trick, in its completion, and false pretenses is that larceny

by trick involves a need for conversion. LaFave, supra §19.2(e), note 39 at 928, whereas false pretenses

does not. If the defendants’ conduct in Malach is measured in terms of whether a conversion had

occurred or been attempted, rather than trying to measure the difference between the passage of

possession or title, the case takes on a different light. It reveals the possibility that the defendants

committed both larceny by trick and false pretenses.

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 When Malach and Curtiss exchanged the cigarette cartons for the money, they committed the

crime of obtaining money by false pretenses. They had no need to convert the victim’s money because

the purchaser falsely believed he was buying cigarettes. However, in the presumably split-second that it

took the purchaser to realize he had been duped, the defendants were suddenly confronted with the need

to convert his money, which is why they fled. The purchaser’s intent to pass title only existed in the split

second that it took him to discover the ruse. If he did pass title, it was false pretenses if only for a split

second before it morphed back into larceny by trick. Nevertheless, in the state of Michigan the

defendants did not commit felony murder. Had the defendants committed their misdeed in New York,

prosecutors more than likely would have wrangled over larceny versus robbery in order to satisfy the

felony murder statute.

New York would evaluate their conduct in terms of larceny versus its distant cousin robbery. In

New York, a prosecutor may have found felony murder on the theory that the defendants had committed

robbery, a predicate felony of murder in the second degree (N.Y. Penal § 125.25). Robbery is defined in

New York in §160 of the Penal Code which states that robbery is forcible stealing. The statute requires

that force “be used for the purpose of preventing or overcoming resistance to the taking . . . or compelling

the owner to deliver up the property . . . or for the retention thereof immediately after the taking.”

Therefore, the language of the statute rests upon a connection between the use of force and the relieving

of the owner of his property, which establishes mens rea. 6 N.Y. Prac., Criminal Law §14:4. A

perpetrator “must use or threaten to use force with the ‘conscious objective of compelling his victim to

deliver up her property or preventing or overcoming resistance to the taking or retention’." 6 supra.

Therefore, not every theft involving force will necessarily constitute robbery. The use of force to retain

the property will satisfy the robbery statute “provided the force is used ‘immediately after the taking’ and

while the defendant still possesses the property even if the taking itself was by trickery or false promise

or stealth.” 6 supra (emphasis added). Yet if force is used only to achieve an escape after the defendant

has taken the property, it will not elevate a larceny to robbery. For New York, the Malach question would

have turned on the purpose of the force element, that is, did the defendants intend to use it to retain the

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property, or merely to effect their escape? If the latter is found, the crime presumably would have been

larceny and felony murder would not apply, and if the former was found, the defendants would have

committed robbery. How a court or a jury is supposed to distinguish between pure escape and an escape

to retain the ill-gotten goods is unclear. One wonders if the distinction between the two is the purpose of

the escape: Are the defendants escaping to retain the loot, or are they escaping to avoid prosecution?

New York does not specify, but like Michigan, the essential question would have been reduced to

whether the defendants had committed ‘only’ larceny.

Our leftover, old, English concepts of larceny and her common law family still pose problems.

Consolidation of larceny and kin into the concept of theft have eliminated some moguls for prosecutors,

but the problem of chiseling one crime from its sister crime still arises. New York and Michigan are

different legislative architects and these different statutory constructions of larceny have real effects for

both prosecutors and defendants. In the least, larceny remains a slippery creature.