The plaintiff in error was indicted for obtaining money by false pretenses.

The prosecuting witness, and the party alleged to have been defrauded, testified that plaintiff in error represented that he had a large quantity of nutmeg graters and weather strips, and that he was induced, by his representations as to the profits arising from a sale of them, to embark in the business with him, and that he paid him §200.

It was a material inquiry whether or not plaintiff in error was the owner and in possession of the property enumerated. Every fact which tended to rebut the alleged false pretense should haye been submitted to the jury.

On cross-examination, the prosecuting witness was asked : “Did you not get fifty-six dozen nutmeg graters?” The court refused to permit the question to be answered. This was error. The party charged had the right to any testimony which might show his representations to be true. The gist of the offense was the false pretense. Proof which showed that the property, or any part of it, was owned by plaintiff in error, and obtained by the prosecutor, should have been'received as explanatory of the .character of the representations.

A book containing advertisements of the business was found upon the prisoner’s table, and the contents of this book, together with letters of'the parties and a written agreement between them, were read in evidence.

Upon the retirement of the jury, the court permitted them to take the book, and refused the application of the prisoner to allow them to have the other written evidence.

We shall not decide as to the propriety of the course pursued, further than to remark that this action of the court was unjust to the prisoner. All the written evidence read to the jury should have been taken by them, or none.

The judgment is reversed and the cause remanded.

Judgment reversed.