260 MOTION FOE ACQUITTAL. 



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 indict- 

 ment. 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 ordi- 

 nances 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 COUET 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. PEENTICE 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. WAEHNEE "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 COUET I think it is very plain that I must do it ; but, Mr. 

 Prentice, I shall hear you briefly. 



Mr. PEENTICE argued in opposition to the motion. 



The COUET 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 



