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People v. Ashley

Citation. 810 N.W.2d 582 (Mich. 2012) [2012 BL 102741]
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Brief Fact Summary.

Defendant was convicted of grand theft under a California Penal Code. The case went to jury with instructions relating to larceny by trick and obtaining property under false pretenses. Defendant claims there was no unlawful taking of any kind.

Synopsis of Rule of Law.

In order to be convicted of obtaining property by false pretenses, the defendant must have made a false pretense or representation with intent to defraud the owner of his property, and the owner was in fact defrauded.


Defendant Ashley was the business manager of a corporation established for the purpose of “introducing people.” Evidence at trial revealed Ashley obtained a loan of about $7,000 from Mrs. Russ, a woman 70 years of age, by promising her the loan would be secured by a first mortgage on certain improved property of the corporation. Ashley told Mrs. Russ the money would be used to build a theater on property owned by the corporation. However, the corporation leased but did not own the improved property. The theater was never built, and Ashley used the money for the corporation’s operating expenses. After several discussions with the Defendant over his failure to deliver the first mortgage, Mrs. Russ finally agreed to receive a note from the corporation secured by a second trust deed on some unimproved property owned by the corporation. She subsequently received four delinquent checks from the Defendant and he requested an extension. Mrs. Russ granted the extension after Ashley thr
eatened to destroy himself if she refused. In addition, Defendant obtained a $13,590 from Mrs. Neal to buy the El Patio theatre. The loan was secured by a trust deed. Defendant told Mrs. Neal the corporation was worth half a million dollars. Thereafter, Mrs. Neal loaned Defendant an additional $4,470 dollars and Defendant issued Mrs. Neal a note for $17,500 in exchange for the previous note. When Mrs. Neal hesitated in making the additional loan, Defendant allegedly placed a gun on his desk and told her he didn’t want “any monkey business out of her.” Mrs. Neal never received the trust deed and the money was deposited into the corporation’s account. Evidence at trial showed that the corporation was in a bad financial condition and that the Defendant received no salary from the corporation, but that he drove an expensive automobile paid for by the corporation. The case went to the jury with instructions relating to larceny by trick and device and obtaining property by false pretenses.


Did the Defendant make a false pretense or representation with the intent to defraud the owner of her property?


Yes. The judgment and order denying a new trial are affirmed.
Larceny by trick and device is the appropriation of property which was fraudulently acquired. Obtaining property by false pretenses is the fraudulent acquisition of both title and possession. These two offenses are consolidated into the single crime of theft. A jury can return a guilty verdict if they find an “unlawful taking.”

It is clear from the record in this case that each of the prosecuting witnesses intended to pass both title and possession. Therefore, the Defendant is guilty of obtaining property by false pretenses. Defendant’s defense was not based on the differences between title and possession, but instead on his contention that there was no unlawful taking.

It is not necessary to prove the Defendant personally benefited from the fraudulent transaction. The false pretense must relate to the state of things deemed to be at the time existing and not to a state of things thereafter to exist. False promises are false pretenses within the meaning of the statute.


Judge Schauer concurs in the judgment: The evidence does establish that the Defendant made false representations. In a case of this nature, the matter to be proved is purely subjective. The proof will necessarily be of objective acts, and such proof of the alleged crime has been recognized as unreliable. The rule that the majority develops determines that an inference can be made as to a man’s intentions concerning a promise to pay in the future or to perform an act at a future date. For example, if it can be inferred that the man knew he would be unable to pay the debt, a court of law will be bound to affirm a conviction for obtaining property by false pretenses.


In order for an individual obtain property by false pretenses, it must be proved that any misrepresentations of fact alleged were made knowingly and with intent to deceive.

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