¶1delivered the opinion of the court.
¶2The appellant was charged with offering adulterated milk for sale as pure milk and appealed from the judgment of conviction.
¶3It is an tincontradicted fact that the milk was adulterated, but the appellant maintains that the court erred in weighing the evidence regarding whether or not he had it for sale.
¶4*25According to two witnesses examined by tbe prosecution, tbe defendant was in bis milk-stall filling, a bottle from a pail of milk wbicb be bad for sale when tbe food inspector came in and told him not to sell it because be was going to inspect it, and made him empty it into a pail. Tbe witnesses for tbe defense testified that in tbe milk-stall of tbe appellant there was only one bottle of milk which bis daughter bad bought in another milk-stall for tbe use of the family.
¶5By the judgment of conviction tbe lower court adjusted tbe conflict in the evidence against the defendant, and as it is not alleged that tbe court was influenced by passion, prejudice or partiality or committed a manifest error, we cannot sustain tbe appeal on that ground.
¶6Tbe other error assigned is that tbe judgment is contrary to law because tbe evidence for tbe prosecution tends to show that the appellant sold tbe milk which was found to be adulterated, while the charge was that be offered tbe milk for sale, for which reason there is a variance between the charge and the evidence.
¶7Aside from the fact that tbe witnesses examined by the district attorney did not say that tbe appellant was selling the milk, but that be was filling a bottle from a pail of milk which he had for sale in his milk-stall, nevertheless, admitting that it was proved that he sold the adulterated milk whereas he was charged with having it for sale, we see no variance because there is no doubt that if it is alleged that he was the owner of the milk-stall and that he had adulterated milk for sale, it is impliedly alleged that he sold it, and this fact can be proved because it was the supposed purpose for which he had the milk in the milk-stall.
¶8The judgment appealed from must be
¶9Affirmed.