The commentary to the Model Penal Code, after which the Criminal Code was modeled, discussed the consolidation concept as follows: Nevertheless, consolidation cannot eliminate the necessity for careful drafting, nor can it avoid the necessity for a properly specific delineation of the various types of property deprivations that should be punished by the criminal law.
The purpose of consolidation, therefore, is not to avoid the need to confront substantive difficulties in the definition of theft offenses. The appropriate objective is to avoid procedural problems. Even a consolidated offense will retain distinctions among methods of acquisition and appropriation. The real problem arises from a defendant’s claim that he did not misappropriate the property by the means alleged but in fact misappropriated the property by some other means and from the combination of such a claim with the procedural rule that a defendant who is charged with one offense cannot be convicted by proving another. Model Penal Code § 223.1 cmt. 2(b) at 132-33 (Am. Law Inst.) (rev. cmts. 1980) (emphasis added).
The Court spoke of a trial setting when it held that “attempting to defeat one charge by arguing that a defendant committed a different criminal offense” is “the very vice at which the ‘consolidation’ statute is directed.” In conclusion, the Court emphasized “the adversary system cannot be permitted to deteriorate into a mere game in which defendant brazenly manifests his contempt for the system by openly admitting his guilt of an offense and then seeking exoneration on the basis of some arcane notion of pleading.”
In addition to the analysis set forth in Talley, the commentary to the Model Penal Code illustrates instances where the consolidation statute is appropriate: Examples come readily to mind where an unwary prosecutor might stumble in distinguishing larceny, false pretenses, extortion, and embezzlement. An offender who is prosecuted for fraud might escape by proving that the victim did not believe the representations made to him but was merely frightened by them. Similarly, one who gives a bad check as a down payment on an automobile which is thereupon delivered to him on conditional sale may defeat criminal prosecution for obtaining by false pretenses by arguing that the vendor reserved title and that the vendee could therefore only be guilty of larceny, the offense against possession.
The Court’s analysis is sound, but it overlooks the dim view that most jurors would take of a defendant whose defense is “I committed a different crime.” Most juries would rather return a guilty verdict for the wrong offense than acquit under the circumstances.