token as comes within the law." 2 Bishop on Criminal Law (7th ed.), sec. 145.

"Mere lies and false representations are not sufficient." Clark's Criminal Law, 277.

"Again, if a man fraudulently effects a purchase, by drawing and delivering in payment his check on a bank in which he keeps no account, he thus merely puts his false representation in writing, the check is no token, and he is not indictable at the common law." 2 Bishop on Criminal Law (7th ed.), sec. 147.

In my opinion the facts stated by you are not sufficient to show an offense under this section.

Sec. 4423, statutes, provides a punishment for obtaining money or property by false pretenses.

It has been held many times that the pretenses must be of an existing fact, and not be mere promises as to future events. I do not deem it necessary to cite the authorities on this point. Clearly, then, what was stated on Thursday as to the deposits that would be made by Saturday did not amount to a false pretense. On the other hand, if what the accused said as to the nature of his business was false, and Love and Jones relied upon it as true and made the sale of the horses upon the faith of such statement, it might well constitute a false pretense.

According to your statement, no false pretenses were made on Sunday, unless the mere fact of giving the check was a representation that he had sufficient funds in the bank on which the check was drawn to meet it. I have not found any decision of our court upon that precise question. The decisions of other courts are not uniform. The Supreme Court of Iowa has said:

"The weight of authority and reason is to the effect that the mere making of a check and delivering it to another to induce the other to deliver property or money to the maker is an assertion and pretense that the drawer has, at the time, money or credit in the bank on which the check is drawn, and that the check will be paid by the bank upon presentation." State v. Foxton (Iowa) 147 N. W. 347, 349.

I am inclined to think our court would hold the same, but of course that cannot be known for certain until a case involving the point is brought before them.

This brings us to a consideration of the question of whether the fact that the transaction in which the offense is involved. occurred on Sunday is a defense.

Sec. 4595, statutes, makes the doing of business on Sunday a misdemeanor. It seems clear to me that this transaction was doing business. Our court has frequently held that no recovery can be had in a civil action based upon the doing of business on Sunday. See citations under this section in the new volume of Wisconsin Annotations.

Our court long ago had before it the question of whether money obtained by false pretenses, the purpose of the transaction being criminal, would constitute an offense. The following from the decision shows the essential facts:

"The two sums of twenty dollars and twenty-five dollars, paid through the express company, were obtained from Burke on the false pretense that the boxes received by him. contained counterfeit money. Had he obtained what he expected, he intended to use it in a criminal manner. The false pretenses, therefore, prevented him from committing such crime.

"In the case of the fifty dollars paid to the defendant Carnahan, Burke supposed he was bribing Carnahan with that money to commit a crime; and had this supposition been true, Burke would have been particeps criminis there

in.

* *

"Hence all the money obtained from Burke was paid by him in the furtherance of criminal motives and intentions on his part."

The court, following the leading case of McCord v. People, 46 N. Y. 470, held that no offense had been committed. State v. Crowley, 41 Wis. 271, 281.

In New York they have consistently followed the earlier case in a number of decisions of which we cite only two. People v. Tompkins, 79 N. E. 326; 186 N. Y. 413; People v. Livingstone, 62,N. Y. S. 9.

And in Georgia the rule has been applied where the victim was led to believe she was getting counterfeit money. Foster v. State, 68 S. E. 739, 8 Ga. App. 119.

The great weight of authority, however, is the other way. Horton v. State, (0.) 96 N. E. 797; Cunningham v. State, 38 Atl. 847; 61 N. J. Law 67; Gilmore v. People, 87 Ill. App. 128; People v. Watson, 42 N. W. 1005, 75 Mich. 582; Commonwealth v. O'Brien, 52 N. E. 77, 172 Mass. 248; Lovell v. State, 86 S. W. 758, 48 Tex. Cr. 85; State v. Wilson, 75 N. W. 715, 72 Minn. 522.

Thus, in a prosecution for conspiracy to defraud, the Michigan court, inter alia, said:

"The argument of respondents' counsel is that the evidence shows that the complaining witness in the transaction in which it is alleged it was attempted to defraud him was himself engaged in an illegal transaction by attempting to obtain $5,000 which he supposed he had won by lottery gambling. Hence the public are not interested, and he has no right to appeal to the criminal law for protection, and courts will not interfere to protect those who, for unworthy or illegal purposes, part with their money. To adopt this position would give free license to villains and sharpers to prey upon those who have become credulous through the infirmities of age, or who are unwary from the inexperience of youth, as well as a large class who are weakminded by nature, the very classes of the community whom it is the policy of the law to protect.

We

have no hesitation in saying that public policy requires that courts should lend active aid in punishing persons who conspire to obtain money or other valuable thing by means of false pretenses, with intent to cheat or defraud, and in no case should crime be effectually interposed as a shield for crime." People v. Watson, 42 Ñ. W. 1005, 1006; 75 Mich. 582, 585.

And the Massachusetts court said:

"We think this end (to deter people from swindling) is more effectually reached if we do not read into the absolute words of the statute * * an implied exception which allows a knave to cheat any one out of his money if the knave can succeed in persuading his victim into a scheme which

has any technical element of illegality on the victim's side. The question of allowing the latter a personal remedy is essentially different." Commonwealth v. O'Brien, 52 N. B. 77, 79; 172 Mass. 248, 253.

And in Delaware it was held that the fact that a contract of bailment was void because made on Sunday was no defense to a prosecution for embezzlement as bailee. State v. Sienkiewiez, 55 Atl. 346, 4 Pennewill (Del.) 59.

That our court was not altogether satisfied with the rule it adopted appears from its language in the case cited:

"After much investigation and deliberation, we have reached the conclusion that the rule of the New York cases is supported by the better reasons, as well as by the weight of authority, and that it is our duty to adopt it. We do so with hesitation, because able judges and courts have held a different rule; and with reluctance, because the acts of the defendants (or some of them), as disclosed by the evidence, were outrageous and indefensible, and the perpetrators richly merit punishment. But it is far better that they should escape punishment under this information, than that sound legal rules should be disregarded to meet the supposed exigencies of a particular case. State v. Crowley, 41 Wis. 271, 284.

And in Georgia the court was unwilling to follow the New York rule to its logical conclusion. It said:

"Can the defendant be convicted of cheating and swindling because he falsely represented to the prosecutrix that the existing conditions were such that, if she would go to certain expense, she could buy a certain amount of counterfeit money? * * * The question must be answered in the negative. If the representation had proved true, she would have been in a worse fix than she was when it proved untrue. The very possession of the counterfeit money would have made her a felon. As it was, when she did not get it, she was simply left as a foolish woman with less money and more experience; and, in legal contemplation at least, even this is better than being a felon.

"We are not to be understood as holding that cheating and swindling can not be predicated of an unlawful transaction. There are many transactions for which the state can prosecute where the parties, by reason of the unclean

ness of their hands, would not be allowed to maintain a civil action. Thus, although the sale of liquor is a crime in this state, yet if the keeper of a 'blind tiger' should represent to a prospective purchaser that the contents of a bottle was corn whiskey, and should sell it as such, receiving therefor the purchaser's money, when in fact the bottle contained water only, he could be held for cheating and swindling. Or, if in a similar case the prospective purchaser should palm off on the keeper of a 'blind tiger,' in the nighttime, a worthless slip of paper as a dollar bill, and receive in exchange therefor a quart of whiskey, the person so deceiving the seller of the liquor could be convicted of cheating and swindling. However, it must be noticed in each of these illustrations that the person deceived parts with something of value. It is true that in this state liquor can not be said to have any market value in the full sense of the words; yet it is a thing of value. * But in no sense is counterfeit money a thing of value. The very possession of it is criminal. It is a violation of law to make it, to own it, or use it. It is utterly without value. Suppose that the defendant had said to the prosecutrix, 'Your sworn enemy is in Jacksonville; if you will go there with me and pay me $100, I will show that enemy to you that you may poison him.' Suppose the defendant's statement were a lie, could the transaction be treated as cheating and swindling? The privilege of poisoning one's enemy is not a thing of value.' Foster v. State (Ga.) 68 S. E. 739, 741; 8 Ga. App. 119, 122.

* *

And in New York the court now follows that rule only because of the earlier decisions. Thus in People v. Tompkins, 79 N. E. 326, 186 N. Y. 413, inter alia the court said:

"Although it may be admitted that this rule, which exists only in New York and Wisconsin, is at variance with what now appears to be the more reasonable view adopted in at least 12 of our sister states, and although it may be conceded to be too narrow for the practical administration of criminal justice as applied to modern conditions, we are admonished that the remedy is not with the courts, but in the Legislature." (79 N. E. 327.)

And in a later case, the charge was obtaining a loan by false pretenses, and the defense was that the transaction was void for usury.

The Supreme Court, Appellate Div., quoted from the leading case of McCord v. People, 46 N. Y. 470, and said: