¶1The evidence is admissible, the presumption now being that the check is in • respondent’s possession. When lafct seen it was in his hands. It will be presumed he still has it. Nor is it necessary for the people to call the officers of the bank to show its payment or non-payment there. The information gave respondent notice to produce the check. The case of The People vs. Holbrook, cited by counsel, is conclusive upon this point. See, also, Hardin vs. Kretsinger, 17 Johns. 293; People vs. Smith., 20 Johns. 63.
¶2It appeared in evidence that the drawer of the cheque had sufficient funds in bank to 'meet it at the time respondent obtained it and long afterwards.
¶3At the request of the prosecution, the Court charged the jury, among other,.things, as follows-: ■
“ If by the act of the defendant in obtaining the check (provided the jury finds the other fact necessary for conviction), complaining witness suffered loss, then the defendant may be convicted thongh he.derived no benefit from his fraudulent act;”
¶4—and refused-the following request, of the defendant’s counsel:
“If defendant received the check in the manner alleged, and still holds it, it is harmless in his hands, and unless the jury find from the testimony that defendant negotiated the check or received money on it, or some benefit from it, he must be acquitted ; citing People vs. Stone, 9 Wend., 182 ”
¶5Defendant was convicted.