delivered the opinion of the court.

The defendant was sentenced to five 'days in jail for having and offering adulterated milk for sale.

The only assignment of error made 'by him is that the' judgment is not supported by the evidence examined at the trial.

The. appellant maintains that in accordance with the jurisprudence of this Supreme Court it is necessary in a case of this kind to show beyond all reasonable doubt a specific act of offering or having the milk for sale.

The defendant was the owner of a restaurant. On January 15, 1924, a sanitation inspector went into the place and ordered a glass of milk. He thought it was not good and took a sample, which was shown to be adulterated with 30 per cent of water added. The milk was sold to him by the waiter and the defendant was present when the inspector took the sample. The inspector could not say that the milk was in a sideboard within view of the public nor that it was kept for sale, but he testified that he ordered it and it was served to him.

• Perhaps on this evidence alone the legal question that arose was whether in a restaurant where milk is 'served with coffee or in custard and other confections, as the de*332fendant testified was the ease, it conld be considered that the mixing of the millc in snch preparations is beyond the scope of the law that penalizes the having or offering for sale milk adulterated with water. We incline to a negative answer. The liability of the defendant is the same as if the milk was sold or offered for sale separately; but in this case all doubt disappears regarding the fact that the milk was offered for sale, for although the defendant testified that he did not usually sell milk and had no license for doing so, he added, however, that he had served it to his patrons at times.

The judgment must be

Affirmed.