Opinion of the Court
HOMER FERGUSON, Judge:
A general court-martial convicted the accused of larceny of Military Payment Certificates (five specifications of the Charge), in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances and to be confined at hard labor for one year. The convening authority approved only so much of the findings of guilty of specifications 1, 2 and 3 of the Charge as found accused guilty of stealing Military Payment Certificates or Japanese national currency of the value alleged. His action in adding the above italicized portion was taken so that the findings of the court-martial would coincide with the vague testimony relating to the type “currency” involved. The other findings and the sentence were approved. The board of review set aside and dismissed the approved findings of guilty of specifications 1, 2 and 3 of the Charge because the action of the convening authority in enlarging the offense charged constituted a material variance. They held that the convening authority had exceeded his authority in approving substantially a different charge than that alleged, to the prejudice of the accused. The board approved the findings of guilty as to specifications 4 and 5 of the Charge and upon reassessment of the sentence, in view of their holding as to the first three specifications, affirmed the sentence as approved by the convening authority. The Judge Advocate General of the Air Force, under authority of Article 74(a), Uniform Code of Military Justice, 10 USC § 874, as implemented by Air Force Manual 125-2, suspended the execution of the punitive discharge until the accused’s release from confinement.
We granted a hearing on the limited issue of whether evidence showing the obtaining of funds by worthless checks in a gambling game for use in the gambling game is sufficient to support the approved convictions on specifications 4 and 5. On their face the writings here involved — which will be referred to in this opinion as “checks”- — called for payment of “only Military Payment Certificates.” These checks could not be sent outside the Theatre of Operations and were not unconditional orders [52]*52to pay a certain sum of money — essential qualities of negotiability.
The facts relating to the questioned specifications are confused. All agree that in the course of a gambling game in an Air Force billet in downtown Tokyo, Japan, the accused issued several incomplete “checks for Military Payment Certificates.” These checks were signed by the accused and he had filled in the amount of each in numerals. They were neither dated nor numbered nor did they have a named payee. There had been some drinking on the part of the participants and the game was heated and of long duration. However confused the various narratives of the questioned game may be, a few things are clear. Two participants in the game cashed some of these incomplete forms directly for the accused and obtained others of the same ilk that were introduced directly into the game by the accused through the “pot.” The checks were cashed for the accused by the other participants of the game solely to assist him in his participation in the game. They were cashed when he needed money to put in the “pot” — ■ for the “payees-to-be” to win — or were put directly into the “pot” when the accused had no Military Payment Certificates. ■ When the “smoke of battle” had cleared, and cooler considerations prevailed, the two participants who had been fortunate enough — though there is now some doubt as to their fortune— to end up “winners” of all the checks discovered that the accused had bilked them with checks of no intrinsic value. These valueless checks are the basis for specifications 4 and 5. There is a dispute as to how the various cheeks were cashed but in our view this is unimportant. The checks were cashed for Military Payment Certificates to be used by the accused to gamble with the persons advancing the Military Payment Certificates.
I
There is no doubt that gambling is illegal in the great majority of jurisdictions in the United states either by statute or by judicial interpretation of the public policy. See 24 Am Jur, Gaming and Prize Contests, §§ 3, 12, 61. As the Supreme Court noted in Irwin v Williar, 110 US 499, 510, 4 S Ct 160, 28 L ed 225:
“In England, it is held that the contracts, although wagers, were not void at common law, and that the statute has not made them illegal, but only non-enforceable; Thacker v. Hardy ubi swpra; while generally, in this country, all wagering contracts are held to be illegal and void as against public policy. Dickson’s Exr. v. Thomas, 97 Pa. St., 278; Gregory v. Wendell, 40 Mich., 432; Lyon v. Culbertson, 83 Ill., 33; Melchert v. Tel. Co., 3 McCrary, 521; S. C., 11 Fed. Rep., 193, and n.; Barnard v. Backhaus, 52 Wis., 593; Kingsbury v. Kirwan, 77 N.Y., 612; Story v. Salomon, 71 N.Y., 420; Love v. Harvey, 114 Mass., 80.” [Emphasis partially supplied.]
This theme was again played by the Supreme Court when it stated that gambling is contra bonos mores and is generally to be “prevented and suppressed in the interest of the public morals and the public welfare.” Marvin v Trout, 199 US 212, 26 S Ct 31, 50 L ed 157. In the case of Schur v Johnson, 2 Cal App2d 680, 38 P2d 844, the Supreme Court of California was even more explicit in stating their policy toward gambling transactions.
“It is the uniform rule of our courts that transactions involving a prohibited gambling game will not be enforced for the reason that such transactions are against public policy and in conflict with the welfare and morals of society. 12 R.C.L. p. 747, § 52; 6 R.C.L. p. 712, § 120. In the authority last cited it is said in that regard: ‘Courts of justice will never recognize or uphold any transaction which, in its object, operation, or tendency, is calculated to be prejudicial to the public welfare. * * * A contract is against public policy if it is injurious to the interests of the public or contravenes some established interest in society, or if it contravenes some public statute, or is against good morals, or tends to interfere with the public welfare or safety.’ ”
[53]*53Generally, the law will not force a loser to “pay up” and a winner will not be forced to return his gain. Ex turpi causa non oritur actio. The jurisdictions apply various devices to reach the conclusion of unenforceability, but the end is the enforcement of the public policy. Circuit Judge Evans of the Seventh Federal Judicial Circuit had this to say about gambling:
“Moreover, in the absence of any statute condemning gambling as illegal, the Federal courts have consistently condemned it as against public policy. In some of its phases it has been condemned as illegal.
“. . . Plaintiff has no legal right in a business, the conduct of which was gambling, for which he may obtain protection either in an action at law, or by a suit in equity. He had no legal rights to protect. Therefore defendants could not invade them.
“It would be a refinement of distinction to hold that the public may be protected against the business of gambling, but the business of making machines usable only .in gambling falls outside the pale of condemned action. We find that most courts have refused to make the distinction. They have condemned gambling and gambling transactions.” [Maltz v Sax, 134 F2d 2 (CA7th Cir) (1943).]
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Opinion of the Court
HOMER FERGUSON, Judge:
A general court-martial convicted the accused of larceny of Military Payment Certificates (five specifications of the Charge), in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances and to be confined at hard labor for one year. The convening authority approved only so much of the findings of guilty of specifications 1, 2 and 3 of the Charge as found accused guilty of stealing Military Payment Certificates or Japanese national currency of the value alleged. His action in adding the above italicized portion was taken so that the findings of the court-martial would coincide with the vague testimony relating to the type “currency” involved. The other findings and the sentence were approved. The board of review set aside and dismissed the approved findings of guilty of specifications 1, 2 and 3 of the Charge because the action of the convening authority in enlarging the offense charged constituted a material variance. They held that the convening authority had exceeded his authority in approving substantially a different charge than that alleged, to the prejudice of the accused. The board approved the findings of guilty as to specifications 4 and 5 of the Charge and upon reassessment of the sentence, in view of their holding as to the first three specifications, affirmed the sentence as approved by the convening authority. The Judge Advocate General of the Air Force, under authority of Article 74(a), Uniform Code of Military Justice, 10 USC § 874, as implemented by Air Force Manual 125-2, suspended the execution of the punitive discharge until the accused’s release from confinement.
We granted a hearing on the limited issue of whether evidence showing the obtaining of funds by worthless checks in a gambling game for use in the gambling game is sufficient to support the approved convictions on specifications 4 and 5. On their face the writings here involved — which will be referred to in this opinion as “checks”- — called for payment of “only Military Payment Certificates.” These checks could not be sent outside the Theatre of Operations and were not unconditional orders [52]*52to pay a certain sum of money — essential qualities of negotiability.
The facts relating to the questioned specifications are confused. All agree that in the course of a gambling game in an Air Force billet in downtown Tokyo, Japan, the accused issued several incomplete “checks for Military Payment Certificates.” These checks were signed by the accused and he had filled in the amount of each in numerals. They were neither dated nor numbered nor did they have a named payee. There had been some drinking on the part of the participants and the game was heated and of long duration. However confused the various narratives of the questioned game may be, a few things are clear. Two participants in the game cashed some of these incomplete forms directly for the accused and obtained others of the same ilk that were introduced directly into the game by the accused through the “pot.” The checks were cashed for the accused by the other participants of the game solely to assist him in his participation in the game. They were cashed when he needed money to put in the “pot” — ■ for the “payees-to-be” to win — or were put directly into the “pot” when the accused had no Military Payment Certificates. ■ When the “smoke of battle” had cleared, and cooler considerations prevailed, the two participants who had been fortunate enough — though there is now some doubt as to their fortune— to end up “winners” of all the checks discovered that the accused had bilked them with checks of no intrinsic value. These valueless checks are the basis for specifications 4 and 5. There is a dispute as to how the various cheeks were cashed but in our view this is unimportant. The checks were cashed for Military Payment Certificates to be used by the accused to gamble with the persons advancing the Military Payment Certificates.
I
There is no doubt that gambling is illegal in the great majority of jurisdictions in the United states either by statute or by judicial interpretation of the public policy. See 24 Am Jur, Gaming and Prize Contests, §§ 3, 12, 61. As the Supreme Court noted in Irwin v Williar, 110 US 499, 510, 4 S Ct 160, 28 L ed 225:
“In England, it is held that the contracts, although wagers, were not void at common law, and that the statute has not made them illegal, but only non-enforceable; Thacker v. Hardy ubi swpra; while generally, in this country, all wagering contracts are held to be illegal and void as against public policy. Dickson’s Exr. v. Thomas, 97 Pa. St., 278; Gregory v. Wendell, 40 Mich., 432; Lyon v. Culbertson, 83 Ill., 33; Melchert v. Tel. Co., 3 McCrary, 521; S. C., 11 Fed. Rep., 193, and n.; Barnard v. Backhaus, 52 Wis., 593; Kingsbury v. Kirwan, 77 N.Y., 612; Story v. Salomon, 71 N.Y., 420; Love v. Harvey, 114 Mass., 80.” [Emphasis partially supplied.]
This theme was again played by the Supreme Court when it stated that gambling is contra bonos mores and is generally to be “prevented and suppressed in the interest of the public morals and the public welfare.” Marvin v Trout, 199 US 212, 26 S Ct 31, 50 L ed 157. In the case of Schur v Johnson, 2 Cal App2d 680, 38 P2d 844, the Supreme Court of California was even more explicit in stating their policy toward gambling transactions.
“It is the uniform rule of our courts that transactions involving a prohibited gambling game will not be enforced for the reason that such transactions are against public policy and in conflict with the welfare and morals of society. 12 R.C.L. p. 747, § 52; 6 R.C.L. p. 712, § 120. In the authority last cited it is said in that regard: ‘Courts of justice will never recognize or uphold any transaction which, in its object, operation, or tendency, is calculated to be prejudicial to the public welfare. * * * A contract is against public policy if it is injurious to the interests of the public or contravenes some established interest in society, or if it contravenes some public statute, or is against good morals, or tends to interfere with the public welfare or safety.’ ”
[53]*53Generally, the law will not force a loser to “pay up” and a winner will not be forced to return his gain. Ex turpi causa non oritur actio. The jurisdictions apply various devices to reach the conclusion of unenforceability, but the end is the enforcement of the public policy. Circuit Judge Evans of the Seventh Federal Judicial Circuit had this to say about gambling:
“Moreover, in the absence of any statute condemning gambling as illegal, the Federal courts have consistently condemned it as against public policy. In some of its phases it has been condemned as illegal.
“. . . Plaintiff has no legal right in a business, the conduct of which was gambling, for which he may obtain protection either in an action at law, or by a suit in equity. He had no legal rights to protect. Therefore defendants could not invade them.
“It would be a refinement of distinction to hold that the public may be protected against the business of gambling, but the business of making machines usable only .in gambling falls outside the pale of condemned action. We find that most courts have refused to make the distinction. They have condemned gambling and gambling transactions.” [Maltz v Sax, 134 F2d 2 (CA7th Cir) (1943).]
Some jurisdictions have carried this reasoning over to the criminal law as a defense to the crime of robbery. In one case where the victim “won” disputed goods from the robber, the court said:
“. . . It is the law in this state that certain games of chance, such as lotteries, are illegal; that the winner gains no title to the property at stake nor any right to possession thereof; and that the participants have no standing in a court of law or equity. Gridley v. Dorn, 57 Cal. 78, 40 Am. Rep. 110; Bank of Orland v. Harlan, 188 Cal. 413, 421, 206 P. 75; 16 Cal. Jur. p. 716. In jurisdictions where such is the state of the law the weight of authority appears to favor the view that the recaption by force or fear of money lost at illegal games is not robbery, although the act may be punishable as an unlawful assault or trespass.” [People v Rosen, 11 Cal2d 147, 78 P2d 727. Accord, State v Price, 38 Idaho 149, 219 P 1049.] [Emphasis supplied.]
Such reasoning would not apply, of course, where the robber — or as in the instant case the cheater — did not have an interest in the goods stolen.
We indicated that gambling is an offense under Article 134, Uniform Code of Military Justice, 10 USC § 934, when we said in the Snyder case that Article 134, supra, “and its immediate precursors in military law have been held to condemn drunkenness, use of profane language, wearing improper uniform, use of indecent language to a female, uncleanliness in person, and gambling.” (Emphasis supplied.) United States v Snyder, 1 USCMA 423, 426, 4 CMR 15.
General George Washington, in commenting on a sentence meted out in a gambling case, stated with regard to the offense and the sentence given— “A practice so infamous in itself as that of gaming, so prejudicial to good order and discipline, and so contrary to positive and repeated General Orders . . . demanded a much more severe penalty.” G. O. Hdqrs. Valley Forge, May 21, 1778. We can but wonder why the would-be payees of this drama were not left in status quo with regard to their “winnings.” They regretted no doubt that there was no honor among some gamblers and took the issue to their superiors for official action with regard to the illegal transactions. Officialdom moved rapidly and we must now answer the question of whether United States courts-martial will impose criminal sanctions on persons who cheat others engaged jointly with them in illegal acts when the cheat was the obtaining of Military Payment Certificates from persons in the game to use in the go/\ne — and in fact won by the persons advancing the Certificates for the game!
II
It is clear from what we have said [54]*54above that gambling is against public policy and that the subjects of the alleged larceny were engaging in this illegal activity with the accused. It is also clear that the checks in question, when passed, were void ab initio and regardless of a private agreement between the participants of the illegal transaction could never have legal efficacy. We are now asked to apply legal criminal sanctions to an issuer of void instruments — which issuance occurred during an illegal gambling operation— because of the incredible theory that the bilking of one participant in an illegal operation by another similarly engaged is somehow an offense against the public policy! To do this would be to police the conduct of persons within illegal operations that do not touch the general public. We will not act as the “strong 'arm” of a collection scheme for gamblers within the service in order to intimidate payment by “debtors” of void gambling debts. The fact that one “welshes” on his gambling debts and becomes known as a “welsher” is not a crime.
In the instant case there is no question but that the checks involved in the questioned specifications were issued directly to coparticipants of the accused in a gambling operation or that the checks issued flowed to the ultimate holders through the game’s “pot.” The money was advanced to be used in the game participated in by the accused and two accusers. In fact, Gresham’s theorem acted to insure that all checks eventually went to “pot.” The checks were made out wholly for the facilitation of the game.
Cynics would say that the gamblers gambled on the accused having money in the bank and lost. Gamblers would say that the accused was a “welsher” and should be punished.
It is argued that this transaction should be viewed for what it is and that it is a simple case of obtaining money by false pretenses. Though the principle implicit in this analysis is appealing, we cannot agree that it is a simple fraudulent check transaction. We are not bound to close our eyes to reality on the basis of negotiable instrument concepts merely because a crime involves an instrument that is quasi-negotiable but which is not in fact a negotiable instrument. We can and do look at the entire criminal transaction involved. The answer is simply that this was a cheat committed on and by coparticipants in an illegal gambling transaction. United States courts-martial will not impose criminal sanctions under such circumstances, where good order and discipline in the armed forces has not been prejudiced and the conduct was not of a nature to bring discredit on the armed forces. The accused here was charged with larceny from gamblers and not with violation of Article 134, supra. We had occasion to discuss this related problem in the case of United States v Holt, 7 USCMA 617, 23 CMR 81. In that case the accused was charged with a violation of Article 134, Uniform Code of Military Justice, supra, and we expressly rejected the contention in that case that the offense was in fact larceny. We are not called upon to express, and do not express, an opinion here on the applicability of Article 134 to the instant fact situation. It has been suggested that our holding in this case will somehow encourage gambling. We think that it will have the opposite effect. It will deprive service gamblers, professional and semiprofessional, of a club to hold over those foolish enough to engage in this type of dissipation. A “hard money” policy among gamblers will surely reduce the amount of money available for gambling.
The decision of the board of review is reversed and the charges are dismissed.