dissenting:
I respectfully dissent.
It is clear that the defendant’s nefarious scheme was thwarted by the effective cooperation of the intended victim and the law enforcement authorities, but because the statute which sets forth the offense of theft by deception employs the words “Obtains by deception,” in my -view the State must prove reliance on the deception by the victim. It could even be more forcefully argued here that there was no deception as defined by the Criminal Code of 1961, but most certainly there was no reliance, either by Roberts or by IDLE agents. Reliance need not be specifically alleged, of course, because it is sufficient to use the plain language of the statute, “by deception.” (People v. Wurster (1980), 83 Ill. App. 3d 399, 403 N.E.2d 1306.) But simple logic demands that reliance be proved.
On the necessity of establishing reliance, the following is found in W. LaFave and A. Scott, Criminal Law sec. 90, at 659-60 (1972):
“Cause and Result (The Element of Reliance)
For false pretenses it is necessary that the swindler’s misrepresentation cause the victim to pass title to his property or money to the swindler. Looking at the matter from the point of view of the victim, the same thought may be expressed thus: for false pretenses it is required that the victim pass title to his property in reliance upon the swindler’s misrepresentation.
Thus if the victim, although he passes title, does not believe the misrepresentations, the crime is not committed. He may pass title, though knowing the defendant to be lying, in order to be able to prosecute him for the crime; but the prosecution for the completed crime (though not for the attempt) must fail for lack of the element of reliance.”
And, in 32 Am. Jur. 2d False Pretenses sec. 51 (1982), we find:
“To establish the crime of obtaining money or property by false pretenses, it must be shown that a misrepresentation by the defendant was relied upon by the party defrauded, and that such person was deceived. If the person defrauded knew that the representation was false, the offense has not been committed. [Citations.]”
In People v. Gordon (1977), 45 Ill. App. 3d 282, 359 N.E.2d 794, distinguished in the majority opinion, where the existence and disclosure of a prior lien on an automobile sold by defendant was in question, the reviewing court, in reversing a conviction for theft by decep- ' tion, stated:
“We conclude that the complaining witness was fully aware of the existence of the lien.” 45 Ill. App. 3d 282, 285, 359 N.E.2d 794, 796.
So here, there was no reliance by the alleged victim.
As suggested by the State in the event that we reverse, defendant should be found guilty of the lesser included offense of attempted theft by deception, as provided by Supreme Court Rule 615(b)(3) (87 Ill. 2d R. 615(b)(3). People v. Goolsby (1979), 70 Ill. App. 3d 832, 388 N.E.2d 894; People v. Ellis (1982), 107 Ill. App. 3d 603, 437 N.E.2d 409.