#### The People, Resp’ts, *v.*James J. Thompson, App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 2, 1891.)*

1‘. Dairy law—Keeping unwholesome milk.

The keeping of skimmed milk is not made an offense under the statutes relating to the sale of impure milk, when it is for use in the county where the same is produced.

2. Same.

At the time of inspection of defendant’s milk there were four cans standing in his store, one containing cream, one skimmed milk, one butter-milk and the other pure milk. It was not shown on the trial that the samples taken by the state agents, of which the analysis was made, were not taken from the can of skimmed milk *Held,*that a conviction could not be sustained.

*318Appeal from a judgment of the sessions of Monroe county, convicting the defendant of the crime of selling, or offering to sell, adulterated milk; also, from an order of the same court denying the defendant's motion for a new trial made upon the minutes of the court; also, from an order overruling the defendant’s demurrer to the indictment; also, from an order denying the defendant’s motion in arrest of judgment, all made December 10, 1890.

*W. Henry*Davis, for app’lt; *Joseph W.*Taylor, for resp’ts.

Macomber, J.

The defendant was convicted at the Monroe sessions of the offence of having on hand and offering for sale, on the 3d day of January, 1890, impure, unhealthy, adulterated and unwholesome milk. The indictment of the defendant was found in pursuance of chap. 183 of the Laws of 1885, as amended by chap. 458 of the Laws of 1885. Section 1 of the former act declares that, “ No person or persons shall sell or exchange, or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk, etc.”

The previous statute, chap. 202 of the Laws of 1884, § 13, provides as follows: “ In all prosecutions under this act relating to the sale” * * * “of unclean, impure, unhealthy, adulterated or unwholesome milk, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centum of milk solids, which shall contain not less than three per centum of fat,-it shall be declared to be adulterated.”

Under this act, as we held in the case of the *People*v. Eddy, 12 N. Y. Supp., 628; 35 N. Y. State Rep., 146, guilty knowledge or criminal intent need not be shown in order to charge the defendant. The chemical analysis is deemed to be conclusive evidence of guilt, provided it shows that the ratio of fluids to solids is contrary to that which is prescribed by the terms of the statute.

So that, the only question before us is, whether there is any evidence to show that the defendant was guilty of selling or offering to sell, on the day named, milk which contained more than eighty-eight per cent of fluids. The evidence of the chemical analyzer showed that the milk in question fell below the statutory requirement, and the jury was' probably correct in arriving at its conclusion that this evidence of the expert was more reliable and convincing than that of other persons not skilled in making chemical analysis.

It appears that the defendant had been engaged in handling milk and cream for many years in the city of Rochester, and that for four years prior to this charge he had received milk from one Wadt Two milk inspectors called on the defendant for the purpose of examining the quality of the milk kept and sold by him. There were standing together in defendant’s store, at the time that these men made kfiown their errand, four cans, one containing cream, another skimmed milk, the third butter milk, and the fourth pure milk.

Under the statutes above referred to, the keeping of skimmed milk is not made an offense when it is for use in the county where *319the same is produced. The defendant had a right not only to have on hand skimmed milk, but he had also the right to give it away, because the legislature had expressly exempted skimmed milk from the operation of its penalties, so long as the same is not sold or used as pure milk.

An examination of the evidence in this case does not show that the milk which the state agents took into their possession, •and of which the chemical analysis was made, was not taken from the can containing skimmed milk. The evidence is, in substance, that after making their errand known the defendant told them to step back to the place where the milk was kept and help "themselves. There is no evidence that the defendant offered or exposed for sale the milk which was the subject of this chemical analysis, and upon which the defendant was convicted, as wholesome and pure milk, and not as skimmed milk; and for this reason we think the conviction was erroneous, and the judgment "thereon should be reversed.

Other questions- are raised in the record, but as most of them may not arise again, we do not deem it necessary to express our views thereon. The judgment and conviction should be reversed .and new trial granted.

Dwight, P. J., concurs.