The conviction of the prisoner by the jury, of obtaining property by means of false pretences, was upon evidence supporting the averment of false statement, and that it was made with intent to cheat, and there was evidence which would have justified a finding that the prisoner “ obtained ” for himself, through Larkin, his agent or appointee, the note of $200 and the fifty dollars of cash. But the court refused to charge that a conviction could not take place if it was found that the prisoner did not obtain or receive the note or money, or either. To that charge there was an exception. The court charged that it is .not necessary that the prisoner-should have received the property. This was excepted to by the prisoner. This charge is contrary to the rule laid down, in Reg v. Garrett (1 Dears C. C., 232). That case was so far approved by the case of The People ex rel. Phelps v. General Sessions (13 Hun, 400) that we should follow it. The opinion of Davis, P. J., is to the effect that the parts of the charge already stated are not correct. (See, also, Wood v. People, 53 N. Y., 511.) The same opinion-states reasons for upholding the sufficiency of the indictment before us, as it avers that the prisoner obtained the property described. The evidence in the case points strongly to-the guilt of the accused, and possibly the same result would have-been reached by the jury, had the instruction asked for been given by the trial judge. The cases quoted require us to hold that the exceptions stated above were well taken, and to reverse-the conviction and judgment thereon, and to remit the proceedings to the Court of Sessions of Erie .county for a new trial.
Present — Talcott, P. J., Smith and Hardin, JJ.Conviction and judgment reversed, and proceedings remitted to the Erie Sessions, with a direction for a new trial.