Lumpkin, J.
1. The offense of being a common cheat and swindler is not committed by making false and fraudulent representations for the purpose of inducing another to contract, -and by means of which the latter is defrauded, when such representations, whether in the form of a promise or in any other form, are mere statements of what the person who makes them deems the future will bring forth. -To -be the basis of a prosecution for-this offense, the false representations must relate either to the-past or to the present. 2 Bish. New Crim. Law, §240; 2 Russ. Cr. (6th ed.) 511 et seq.; 7 Am. & Eng. Enc. of Law, 714. And see. Ryan v. State, 45 Ga. 128; Ratteree v. State, 77 Ga. 774.
*208June 8, 1896. By two Justices.
Accusation, of cheating and swindling. Before Judge Berry. Oriminal court of Atlanta. March term, 1896.
The accusation charged that on December 21, 1895, by deceitful means and artful practices Miller cheated and defrauded J. "W. Bobbins cut of one cow of the value of $20, and $10 in money, in the following way: In order to induce Bobbins to buy defendant’s cow, defendant represented to Bobbins that his cow would give three gallons of milk a day and was all right in every respect. Believing this representation to be true, Bobbins was induced thereby to buy the cow and did buy her, and paid for her by giving Bobbins’ cow, which he valued at $20, and $10 in money, in payment for defendant’s cow. Said representation was false and the cow was not right in every respect, for she did not give three gallons of milk a day and she died without any apparent cause within three weeks after Bobbins had bought her; and defendant knew at the time he made said representations that they were false and fraudulent, and made them for the purpose of cheating and defrauding Bobbins out of the amount aforesaid.
Defendant excepted to the overruling of his demurrer, the ground of which is indicated by the head-notes.
Rosser & Carter and W. W. Visanska, for plaintiff in error.
2. Accordingly,' to knowingly, falsely and fraudulently represent that a cow would give three gallons of milk per day, for the purpose of inducing another to buy her, is not an indictable ■offense. In Parks v. State, 94 Ga. 601, the representations as to the cow. related to her then present milk-yielding capacity.
S. The court erred in overruling the demurrer to the accusation.
Judgment T&WTSed,