
    People v. Burns.
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    1. Indictment—Duplicity.
    Under Laws XL Y. 1885, c. 183, which prohibits the sale, or exposure for sale, of impure milk, an indictment charging that the defendant “did sell and expose for sale ” certain impure milk, does not violate Code Grim. Proc. N. Y. § 378, which provides that “the indictment must charge but one crime, and in one form. ”
    
    
      2. Same—Specification.
    An indictment for violation of said chapter 183, which does not either name the purchaser or state that his name is unknown, is fatally defective under Code Grim. Proc. XL Y. § 375, which provides that an indictment must contain a plain statement of the act constituting the crime.
    Appeal from court of sessions, Saratoga county.
    Indictment of Patrick H. Burns for selling impure milk. The court sustained a demurrer to the indictment, and the people appeal.
    Argued before Learned, P. J„ and Landón and Ingalls, JJ.
    
      T. I?. Hamilton, Dist. Atty., for the People. I. O. Ormsby, for respondent.
   Ingalls, J.

The defendant was indicted under the statute of 1885, c. 183, for selling and exposing for sale unclean, impure, unhealthy, adulterated, and unwholesome milk. The indictment contains but one count, and is as follows: “ The People of the State of Hew York against Patrick H. Burns. May Term, 1888.—The grand jury of the county of Saratoga by this indictment accuse Patrick H. Burns of the crime of deception in the sale of dairy products, committed as follows: The said Patrick H. Burns, on the 23d day of April, in the year of our Lord one thousand eight hundred and eighty-eight, at the Town of Waterford, in the county of Saratoga, aforesaid, did sell and expose for sale certain unclean, impure, unhealthy, adulterated, and unwholesome milk, not being skim milk sold to bakers and housewives for their own use or manufacture, upon written orders for the same, nor skim milk sold for use in the county in which it was produced; the said milk so exposed for sale and sold then and there, containing more than eighty-eight per centum of water or fluids, and less than twelve per centum of milk solids, and less than three per centum of milk fats; the said Patrick H. Burns then and there well knowing that said milk so exposed for sale, and sold by him as aforesaid, was then and there unclean, impure, unhealthy, adulterated, and unwholesome; contrary to the statute in such case made and provided, and against the peace of the people of the state of Hew York, and their dignity. T. F. Hamilton, District Attorney of Saratoga County.” The defendant demurred to the indictment, specifying the following grounds of demurrer: “The above-named defendant demurs to the indictment herein upon the following grounds: (1) That the said indictment does not conform substantially to the requirements of sections 275 and 276 of the Code of Criminal Procedure. (2) That more than one crime is charged in said indictment, within the meaning of sections 278 and 279 of said Code. (3) That the facts stated do not constitute a crime. ” In addition to the above grounds, the defendant specifies nine separate objections to the indictment in amplification of the above. The court of sessions sustained the demurrer, and rendered judgment therein in favor of the defendant. And the people appeal to this court therefrom.

The statute under which the indictment was found provides: “Section 1. Ho person or persons shall sell or exchange, or expose for sale or exchange, any unclean, impure, unhealthy, adulterated, or unwholesome milk, or shall offer for sale any article of food made from the same, or cream from the same, ” etc. The indictment, so far as it charges the offense substantially in the language of the statute, must in that respect be regarded sufficient. People v. West, 106 N. Y. 293, 12 N. E. Rep. 610; People v. Taylor, 3 Denio, 92. The cases referred to arose upon demurrer. See, also, Whart. Crim. Law, (6th Ed.) § 364. The main ground of objection to the indictment insisted upon by the counsel for the defendant upon the argument in this court was that it is fatally defective, upon the ground of duplicity, in that it embraces in one count at least two separate offenses under the said statute. Code Crim. Proc. § 278 provides: “The indictment must charge but one crime, and in one form, except as in the next section provided.” Section 279 is as follows: “The crime may be charged in separate counts to have been committed in a different manner or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.” The crime created by the statute, and sought to be prevented, consists of the placing upon the market unclean, impure, unhealthy, adulterated, unwholesome milk. The statute defines the manner it may be violated, viz., by the sale or exchange, or exposing for sale or exchange, by any person or persons, of such milk, or the sale of any article of food made therefrom, or of cream from the same. The indictment charges that the defendant, Patrick H. Burns, on the 23d day of April, 1888, at the Town of Waterford, in the county of Saratoga, did sell, and expose for sale certain unclean, impure, unhealthy, adulterated, and unwholesome milk, etc. The indictment contains the further statement, “the said milk so exposed for sale and sold then and there containing,” etc., and the allegation, “The said Patrick H. Burns then and there well knowing that the said milk so exposed for sale and sold by him as aforesaid was then and there unclean, impure, unhealthy, adulterated, and unwholesome; contrary to the statute,” etc. We are convinced that a fair construction of the indictment leads to the conclusion that but one crime is charged therein, viz., the exposing for sale and selling at one place, and on one occasion, the milk therein described, the sale of which is prohibited by said statute. The exposing for sale and selling by the defendant, being charged conjointly in the indictment, are to be regarded as constituting one transaction and one crime under said statute, and subjecting the defendant to but one penalty. There is seemingly no incongruity in thus charging the crime, as the two acts—exposing for sale and selling—naturally coincide, as constituting the crime charged. It does not necessarily follow that because exposing for sale such milk or selling the same are each made by the statute an offense, and when either is charged in an indictment, in proper form, will constitute a crime punishable by such statute, that specifying both in one allegation in the manner the same has been done in this indictment, must necessarily be regarded as including two crimes in one count of an indictment, in violation of section 278, Code Grim. Proc. We do not perceive that by the statute the exposing for sale or the selling are to be differently punished. Each offense would seem to be of the same grade, and subject to be dealt with accordingly; and, consequently, the indictment cannot be regarded as obnoxious to the objection that it contains the allegation in one count of two crimes, which are to be differently punished. We are therefore convinced that the indictment shoujd not have been held defective upon that ground. Boland v. People, 25 Hun, 423, 426; Whart. Crim. Law, § 390. In Com. v. Eaton, 15 Pick. 273, which arose upon a demurrer to an indictment which charged the violation of a statute, which provided as follows: “If any person or persons shall sell, or offer for sale, or shall advertise or cause to be advertised for sale, any lottery ticket or tickets, * * * or shall draw any lottery not authorized by the laws of the commonwealth, * * * he or they shall severally forfeit and pay to the use of the commonwealth a sum not more than $100 for either of the offenses aforesaid, ”—the indictment contained only one count, and was demurred to for duplicity, and the indictment was sustained. Judge Wilde, in his opinion states: “It is true that an offer to sell, without selling, a ticket is an offense by the statute, but an offer to sell, and actually selling, is but one offense. A sale ex vi termini includes an offer to sell.” The case of Com. v. Symonds, 2 Mass. 163, which is cited by the

counsel for the respondent upon this appeal, is referred to by Judge Wilde in his opinion, and. distinguished as follows: “For in that case two distinct offenses were charged, for which distinct and different fines were prescribed. ” The case which we are considering may be distinguished from the one referred to upon the same ground. See, also, Com. v. Brown, 14 Gray, 419, 431; Bork v. People, 91 N. Y. 16.

This indictment is assailed upon the further ground that it is not alleged therein to whom the milk was sold by the defendant. This we deem a fatal omission. If the purchaser thereof was known, his name should have been stated, and, if unknown, such fact should have been alleged. Code Grim. Proc. § 2.75, in defining what the indictment must contain, provides, in subdivision 2 of that section, as follows: “A plain and concise statement of the act constituting the crime, without unnecessary repetition. ” The act sought to be charged was the sale of milk, of a kind prohibited by said statute. To constitute such sale, there must have been a purchaser, and the defendant was entitled to be informed by the indictment who such purchaser was, so that he could be prepared to disprove such sale upon the trial, if it had not been made as alleged. The omission of such statement in the indictment constituted a material defect, as without it the defendant would be liable to surprise upon the trial, and quite likely to be prejudiced by such omission. The defect, therefore, must be regarded matter of substance, and not merely of form, as it was the right of the defendant to be informed, not merely of the crime charged, but also of the act which constituted it. People v. Dumar, 106 N. Y. 502, 13 N. E. Rep. 325. Deeming the indictment fatally defective in this particular, we conclude that the judgment of the sessions must be affirmed, with costs. All concur.  