second count, a further finding by the Grand Jury; that the second count is defectively drawn, in this, that it does not show a further or separate presentment, and that, therefore, there are two distinct statutory offenses substantially included in one count of the indictment. You cannot charge two distinct offenses in one count. I move, further, upon the ground that there is no allegation in the indictment that the sanitary code therein referred to is a code of sanitary laws applicable to the city and county of New York; that it was ever adopted by the Board of Health, or by any Department of the city government, or by any proper authority; that there is no allegation that that code was published as required by law; or that the ordinance, or that the ordinances constituting it were passed and published in conformity with law; or that the Health Department of the city of New York, in pursuance of the Act of 1873, conformed any of the ordinances theretofore existing to the Act of 1873; or that the predecessors of this Board had ever passed any code or ordinances whatever; or that that code of ordinances was published, as required by law. Upon that point I have direct authority that the indictment is defective. I stated that upon the opening of this case, and warned the prosecution at that time. The authority is in 1 Parker, page 481, Reed vs. The People. The COURT-If you are correct, you have the right to make a motion in arrest of judgment; I have not examined that question; I can see very well that there may be some question about it; it is a question of law; I rather think that the indictment is sufficient.

Mr. PRENTICE―There are two answers to that. In the first place, it has been held repeatedly that the Board of Health, as constituted for this city, is recognized in a different way from the Act of 1850.

Mr. WAEHNER-We shall ask you to charge this jury, as far as the first count in this indictment is concerned, they must acquit the defendant.

The COURT-I think it is very plain that I must do it; but, Mr. Prentice, I shall hear you briefly.

Mr. PRENTICE argued in opposition to the motion.

The COURT-I shall think it my duty, in view of the evidence in this case and of the law of the State under which the first count of the indictment was framed, to direct the jury that the prisoner is entitled to an acquittal on the ground that there is not sufficient

evidence to submit to them on the question whether he knew that the milk was watered. That is the first count. I do not see why you are so urgent on that point, because you have got the second count; I suppose that would be conceded. I should almost say to the jury that there was no evidence that it was milk he kept for sale, that he knew it was watered.

Mr. WAEHNER-I desire to have entered on the minutes the motion for an acquittal, in addition to the other grounds I have stated, on the ground that there is no evidence to sustain the second count of the indictment.

The COURT-The motion is denied. You can take your exception.

Mr. WAEHNER-Note an exception. I understand your Honor grants so much of my motion as relates to the first count. The COURT-Yes, sir.

Mr. WAEHNER-And your Honor denies the motion as to the other points?

The COURT-I shall charge substantially as you requested me on the first count.

Mr. LAWRENCE and Mr. PRENTICE summed up.

THE JUDGE'S CHARGE.

Judge SUTHERLAND charged the jury as follows:

GENTLEMEN OF THE JURY-By the 82d section of an act of this State, passed April 30, 1873, entitled "An act to reorganize the local government of the city of New York," the 82d section of the act provides as follows, after the previous section had provided for the organization of the Board of Health, or Health Department: "It shall be the duty of said Board, immediately upon organization under this act, to cause to be conformed to this article the sanitary ordinances then or lately adopted by the existing Department of Health, which shall be called the sanitary code, and said Health Department is hereby authorized and empowered to add to such sanitary code, from time to time, and shall publish, additional

in

provisions for the security of life and health in the city of New York, and therein to distribute appropriate powers and duties to the members and employees of the Board of Health, which shall be published in the City Record. Any violation of said code shall be treated and punished as a misdemeanor." It has been proved in a satisfactory manner by the certificate of the Clerk of the Board of Health, that on the 23d of February, 1876, the Board of Health adopted this ordinance, which I will read to you: "Section 186. No milk which has been watered, adulterated, reduced, or changed any respect by the addition of water or other substance, or by the removal of cream, shall be brought into, held, kept, or offered for sale at any place in the city of New York, nor shall any one keep, have, or offer for sale in the said city any such milk." You will notice that the words of the section of the sanitary code which I have read to you are not that no one shall keep knowingly for sale milk which has been watered, adulterated, reduced, or changed by the addition of water. The question of the constitutionality of the act to authorize the Board of Health to pass ordinances unknown to the Legislature, and which were thereafter to be passed, declaring violations of such unknown ordinances to be misdemeanors-that question has not been raised; but, if it had, I have looked over the opinion of Judge Daniels, in another milk case, at the General Term, and I am inclined to think that the General Term intended to pass upon that very question. They held that that section of the act of 1873, a portion of which I read to you, was constitutional; so I understand the opinion. It is plain, I think, that the word milk in this ordinance means cows' milk, and I charge as matter of law that this is the meaning of the word, so far as I have the right to charge that matter as matter of law. The indictment on which the defendant is being tried has two counts. The first charges that on the 25th day of August, 1876, the defendant unlawfully and knowingly exposed for sale at his store in the city of New York blank quarts (the number not being filled in in the count, but being left blank) of impure, adulterated, and unwholesome milk, against the form of the statute. I think it may be presumed that that count was drawn under the act of the Legislature passed in 1864. The second count of the indictment charges that the defendant, on the 25th of August, 1876, at his store and place of

business in the city of New York, being the place where milk was kept for sale, did unlawfully keep, and have, and offer for sale ten quarts of milk which had been and was then and there watered, reduced and changed by the addition of water or other substance, in violation of the provisions of the sanitary code. In view of the wording of the second count of the indictment and in view of the provisions of the sanitary code which I have read to you, and of the provisions of the act of 1873 which I have read to you, and of the evidence of this case, I charge you that if the evidence in this case satisfies you beyond any reasonable doubt that the fluid which Assistant Inspector White saw in the milk-can in the defendant's store and place of business in the city of New York, on or about the 25th of August last, and a portion of which he then and there examined and tested with the lactometer, of which fluid Dr. White testified that the can appeared to be about half full, and of which fluid the defendant testified there was 25 quarts, was cows' milk which had been and was then watered, adulterated, reduced and changed by the addition of water, and that the defendant then and there had and kept such watered, adulterated and reduced and changed cow's milk for sale, you can and ought to find the defendant guilty of the offence charged in the second count of the indictment; otherwise you ought to find the defendant not guilty of the offence charged in the second count of the indictment. Will the evidence in this case, especially that of the defendant, of his son, and of Dr. White, permit you to doubt that the fluid in the milk-can was either cows' milk which had been watered, or cows' milk which had not been watered, that it was one or other of those fluids? Dr. White testified to certain facts or circumstances from which he testified that he inferred or came to the conclusion that the fluid in the can was milk to which 15 per cent. of water had been added. One of these facts or circumstances was, that upon testing the fluid at the temperature of 60, as shown by a thermometer and by the lactometer, for the purpose of ascertaining its specific gravity and then stating the result of such test. I do not mean to detain you by referring at all to the evidence in detail. The counsel for the prosecution claims that the fluid which Assistant Inspector White examined by his senses and tested with the lactometer and thermometer at the defendant's store and place of

business on the 25th of August last was cow's milk, the weight of which had been so much lessened and which had been made so thin and diluted by the addition of additional water, that the evidence in this case should satisfy you beyond any reasonable doubt that the fluid which he so examined and tested-that Dr. White could and did ascertain with reasonable certainty and beyond any reasonable doubt that the fluid was cow's milk which had been and was then watered by the addition of additional water; and that the evidence of Dr. White as to the manner in which he examined it and tested the fluid, and the evidence which may be called the scientific evidence in this case, should satisfy you beyond any reasonable doubt that the fluid which he so examined and tested was cows' milk which had been watered by the addition not of fifteen or ten per cent. of water, but had been watered by the addition of water. The section 186 of the sanitary code which I read to you and under which I presume the second count of the indictment was framed does not in terms prohibit the keeping of milk for sale below a certain specific gravity, but it does prohibit the keeping of watered milk for sale. The second count of the indictment does not allege that the ten quarts of milk mentioned in it was milk which had been watered by any certain specific per cent. or any specific quantity or weight of water, but it does allege that the ten quarts of milk had been watered and adulterated by the addition of water. One of the material questions which you are to determine in this case is whether the fluid inspected and tested on the 25th of August was cow's milk which had been watered; not whether it was cow's milk which had been watered by the addition of 10 or 15 per cent. of water, or of any particular per cent. of water, though the result of the test by the lactometer and thermometer as testified to by Dr. White, if you credit it, may be very material in determining the question whether the milk was or was not cow's milk which had been watered by the addition of water. There is no direct evidence in this case that the fluid which Dr. White examined on the 25th of August and tested, had been watered or had water added to it; by this remark I mean that no witness has testified that he saw or heard water poured into that milk. But it is claimed on the part of the prosecution that if you credit Dr. White's evidence, relating to his inspection and test of the fluid from which