delivered the opinion of the court.
Numerous errors are assigned, but those argued by counsel for plaintiff in error, and particularly relied on for a reversal, may be grouped under three heads: First, the denial of the motion to direct a verdict of not guilty; second, the action of the court in withdrawing the third count *532during the trial, thereby preventing counsel from introducing any evidence thereon, and in resubmitting the same to the consideration of the jury after the cause was argued and submitted; third, in giving certain instructions.
The ground upon which the motion for a verdict of acquittal was based is that the transaction disclosed by the evidence did not constitute a conspiracy punishable under our statute, since the act sought to be accomplished would not, if consummated, be unlawful, in this, that the falsity of the representations as to the title to the land proposed to be sold to him, if made as alleged, could have been ascertained by Clark from an examination of the abstract of title furnished him, and with this means of detection at hand, and not being in any manner prevented from making the investigation, that the representations were a “ naked lie,” and did not constitute false pretense within the meaning of the statute. There are adjudicated cases that sustain this view of the law of false pretense, but we think the better rule and weight of authority is to the effect that the pretense need not be such a device as will impose upon a man of ordinary prudence, and such as cannot be guarded against by ordinary caution or common prudence; but any pretense which deceives the person defrauded is sufficient, although it would not have deceived a person of ordinary prudence. Bishop on Crim. Law, vol. 2, sec. 434; Whart. on Crim. Law, secs. 2128-9; Am. & Eng. Ency. of Law, vol. 7, p. 708, and cases cited.
In State v. Hill, 72 Me. 238, it was decided that the doctrine that constructive notice of an existing mortgage, because of its record, does not apply to indictments for obtaining credit by pretending to be the owner of valuable real estate, upon which there is no existing mortgage. It is no defense in such a ease that the party deceived relied upon the statement made, without examining the public records. To the same effect is State v. Munday, 78 N. C. 460.
We think, therefore, that the motion was properly denied, and the court correctly instructed the jury that “ the fact, if it be a fact, that Jabez F. Clark did not examine the title *533to the property alleged to have been conveyed to him, is no defense in this case.”
But the objection to the instruction wherein the court undertook to define a conspiracy we think is well taken. A conspiracy is punishable in this state only when the purpose to be accomplished thereby is in itself unlawful. Our statute defines the offense as follows: “If any two or more persons * * * shall agree, conspire or co-operate to do, or aid in doing any other unlawful act,” etc. As was said in Con-nor v. People, 18 Colo. 373: “ To constitute the crime there must be not only an agreement to co-operate to do a certain $ct, but that act must be unlawful.”
The definition given by the court below was therefore clearly incorrect, and was such a misdirection as to the law under which plaintiff in error was being tried upon the first two counts of the indictment as to constitute reversible error.
As to the remaining question in respect to the action of the court in withdrawing the third count during the trial, and in submitting it to the consideration of the jury in the manner disclosed by the record, there was manifest error. The cause was tried upon the theory of conspiracy alone, and the submission of the consummated offense of false pretense to the consideration of the jury, under the circumstances, was unwarranted, and resulted in the conviction of plaintiff in error upon a charge against which he was given no opportunity to defend. The right to a fair trial is guaranteed to every person accused of crime. This the plaintiff did not have, and the sentence and judgment is therefore reversed and the cause remanded.
Reversed and remanded.