People v. Marks, Docket No. 4130

• Decision Date: 26 August 1968
• Docket Number: No. 2,Docket No. 4130,2
• Citation: People v. Marks, 163 N.W.2d 506, 12 Mich.App. 690 (Mich. App. 1968)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Oliver MARKS, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 506

163 N.W.2d 506

12 Mich.App. 690

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Oliver MARKS, Jr., Defendant-Appellant.

Docket No. 4130.

Court of Appeals of Michigan, Division No. 2.

Aug. 26, 1968.

Released for Publication Jan. 9, 1969.

Robert J. Baker, Baker & Durst, Adrian, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Harvey A. Koselka, Pros. Atty., Lenawee County, Adrian, for plaintiff-appellee.

Before LESINSKI, C.J., and QUINN and MOODY, ^* JJ.

LESINSKI, Chief Judge.

Defendant, Thomas O. Marks, Jr., has been given leave to appeal an interlocutory order of a circuit court denying his motions to dismiss the cause and to quash the information charging him with obtaining money by false pretenses. ¹

The facts of the case are not in dispute. Evidence given in preliminary examination before a justice of the peace discloses that on May 1, 1967, defendant and two associates approached Elizabeth Gentz, a 73-year-old spinster, at her home in Blissfield, Michigan. Defendant began a discussion of the house's chimney during which Miss Gentz agreed that it needed repair. Approximately an hour and a quarter later, defendant announced that the repairs were complete and informed complainant that the bill would be $612. When she hesitated, the defendant offered to do more work for a total of $700. Complainant objected to the $12, but assented to $600 for the work already done and was accompanied by defendant and one of his associates into town to withdraw from her bank $600 which she later paid to defendant. A qualified witness at the examination testified that he would value the repairs made at $25.

Although there is no question that defendant has acted in an ethically indefensible manner in overcharging Miss Gentz, his actions do not fall within the scope of C.L.S.1961, § 750.218 (Stat.Ann.1962 Rev. § 28.415), which deals with obtaining property under false pretenses. An essential element of the crime is a fraudulent misrepresentation, and the gross overcharge does not constitute fraudulent misrepresentation. A review of the record shows no testimony of any misrepresentation. Consequently, the magistrate had no evidence of misrepresentation on which to bind the defendant over for trial. Defendant's motion in circuit court asking dismissal of the cause and quashing of the information should have been granted.

Reversed and remanded for entry of judgment of dismissal and quashing of...