Before Judge SUTHERLAND and a jury, December 15, 1876.

W. P. PRENTICE and GEORGE S. HASTINGS, Counsel for the People; Lawrence & Waehner, Counsel for Defendants.

The jury was sworn, and Assistant District Attorney ROLLINS in opening the case said that a conviction would be claimed upon the 186th section of the Sanitary Code.

Mr. WAEHNER-Inasmuch as Mr. Rollins has stated that he claimed a conviction upon the 186th section of the Sanitary Code. I would say that the indictment charges two distinct statutory offenses, one being the violation of the act of 1864 and the other being the violation of the Sanitary Code; it seems therefore that this indictment as far as the form of it is concerned, not alleging the further step of the finding by the grand jury upon the second count the paragraph, which is not, in fact, a count, and defective for that reason, I move to quash the indictment upon the ground that it is but a single count, charging two distinct statutory offenses.

Mr. ROLLINS-It is distinctly announced as a second count.

The COURT-Probably both counts refer to the same transaction. It is not a ground for quashing the indictment.

Mr. WAEHNER-I ask that they be put to their election upon which count of that indictment they will proceed.

The COURT-I won't now. Wait till the evidence is through and we will see about that. I deny your motion to call upon them to elect, and I deny your motion to quash.

Mr. WAEHNER-I except to each of the refusals; I move to dismiss this matter or to quash this indictment upon the ground that the indictment as far as the second count is concerned does not state an offense; that all the statutory prerequisites to constitute an offense against what is called in that indictment the Sanitary Code of the act of 1866, under which the Board of Health of the City of New York was first organized, empowered that Board to pass certain ordinances, rules, and regulations for the government of the health of the City of New York; that under that act they were obliged to publish those ordinances for a specified time before those ordinances could go into any effect. I refer to the case of the People vs. Reed, 1 Parker's Criminal Reports, page 481.

The COURT-I deny your motion.

Mr. WAEHNER-Note an exception.

Mr. PRENTICE opened the case for the prosecution.

WILLIAM A. WALL, sworn and examined, testifies as follows:

Q. Mr. Wall, you are connected with the office of the City Record, are you not? A. Yes, sir.

sir.

Q. The official journal of the city of New York?

A. Yes,

Q. How long have you been connected with that office? 4. Since June 7, 1873.

Q. Have you with you a file of the City Record, representing the daily issues of that paper during the months of February and March last? A. Yes, sir; I have it here.

Q. I show you the section under which this indictment is drawn and ask you if you find that section in the issues of the City Record on that page?

(Objected to on the ground that it is irrelevant and immaterial; objection overruled; exception.)

sir.

A. Yes, sir.

Q. State when you find that first publication.

(Objected to; objection overruled; exception.)

A. I find that published the first time February 24, 1876.

Q. Published in the City Record, was it, of that date? A. Yes,

Q. State how long it was published?

(Objected to; objection overruled; exception.)

A. Ten days.

Q. By the COURT-Successively? A. Yes, sir.

By Mr. PRENTICE-The first publication was on the 24th of February? A. Yes, sir.

Q. It was published throughout that week, was it, each day except Sunday? A. Yes, sir; except Sunday.

Q. On the following week each day except Sunday for a period of ten consecutive days? A. Yes, sir.

Q. That ordinance is the ordinance I have read to the jury, was it? A. Yes, sir.

Mr. HASTINGS-We offer in evidence these two numbers, one in the first week and the other in the succeeding week which contains the ordinance in the City Record. We shall then follow it up with proof of the ordinance itself under the statute.

(Objected to on the ground that it is incompetent and immaterial; objection overruled; exception.)

Cross-examined:

Q. The first publication you say was on February 24th? Yes, sir.

Q. Was it published the next day? A. It was.

A.

Q. And for how many days succeeding the 24th in all? A. I find it running along until March 3d, including March 3; there is a Sunday intervenes; the paper is not published that day, but all week days up to and including March 3.

Q. And that is the only publication there is of that ordinance in that paper? A. Yes, sir.

Mr. PRENTICE-Now we offer in evidence a copy of that ordinance with a copy of the certificate of the Board of Health, authenticating and certifying the foregoing. It was passed February 23, 1876, and has the seal of the Health Department attached; said certificate being given under section 12, chap. 636, of the Laws of 1874. (Marked People's Exhibit A).

(Objected to on the ground that it is incompetent and immaterial; objection overruled; exception.)

DEFENDANT'S COUNSEL-I will admit that Emmons Clark is and was the Secretary at the time of this authentication.

Section 186 of the Sanitary Code, is as follows:

"No milk which has been watered, adulterated, reduced, or changed in 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."

TUESDAY, December 10, 1876.

CASPAR GOLDERMAN, sworn and examined, testified as follows:

Q. Golderman, you are an assistant of the Secretary of the Board of Health, are you not? A. Yes, sir.

Q. And were upon the organization of the Board of Health in the spring and summer of 1873? A. Yes, sir.

Q. At that time who was the Secretary of the Board of Health? A. Emmons Clark.

Q. You know his handwriting, and have seen him write frequently? A. I do.

Q. Look at his signature to the certificate attached to the ordinance numbered section 186; look at the signature attached to that paper, Exhibit A; in whose handwriting is that? A. That is the handwriting of Mr. Hill, a clerk in the secretary's office.

Q. The signature is what? A. The signature is Emmons Clark's, Secretary of the Board of Health.

Q. Look, if you please, at this book indorsed "Minutes of Board

of Health"; is that book in your charge, and has it been in your charge since 1873? A. Yes, sir.

Q. Is it an original book of minutes of the proceedings of the Board of Health? A. It is.

Q. During June, July, and other months of 1873? A. Yes, sir. Q. And contains a full record of all the proceedings?

(Objected to.)

Q. Look at that part of the book included from pages 26 to 38? A. I have.

Q. Of what is that a record?

(Objected to until that book is properly proven to be a record.) Q. By COUNSEL FOR THE DEFENDANT-Is that book in your handwriting? A. No, sir.

Q. By COUNSEL FOR THE PEOPLE-Of what is that portion included between the pages named a record ?

(Objected to as incompetent.)

Q. By the COURT-Whose handwriting is it? A. Mr. Hill, a Clerk of the Board.

Q. By COUNSEL FOR THE PEOPLE-Are the minutes entered in that book under your supervision?

(Objected to.)

Q. By the COURT-Where is that book kept? A. In the office of the secretary of the Board of Health.

Q. By COUNSEL FOR THE PEOPLE-In whose charge? A. In my charge.

Q. By the COURT-You are the secretary? A. His assistant. Q. By COUNSEL for the DefenDANT-Is Mr. Hill alive or dead? A. He is in the office to-day.

COUNSEL FOR THE PEOPLE-We have offered in evidence section 186 of the Sanitary Code. I deem it material to prove what that Sanitary Code was, and that this is a branch of it, because section 82 of the law of 1873 makes it a misdemeanor to violate the Sanitary Code. We have proved a detached section.

The COURT-You want to prove that there was such an ordinance passed?

Mr. PRENTICE—Yes, sir; we propose to show not only the additional ordinance, but the code to which this refers.

The COURT That is the original code in that book?