(dissenting) : I dissent for two reasons. First, the information states no offense whatever, because it charges that the defendant did one of three things, and there being no charge as to which one of the three things he did, he should not be called upon to defend. In other words, pleading in the disjunctive is no pleading at all. This is the universal rule, and has also been recognized and followed by this court. (The State v. Seeger, 65 Kan. 711, 70 Pac. 599.)
Second, the statute invoked does not make it a crime openly to sell, use or have on hand milk below the standard fixed by the state board of health. It will not do to guess people into the commission of crimes by imagining what the legislature would have done had its attention been called to its failure to express a meaning.
The prosecution can not be sustained under section 8743 of the General Statutes of 1909, because in order to make a sale unlawful the product sold must fail to comply with the standards “hereinafter provided,” and those thus provided are not the ones prescribed by the state board of health, and the defendant was charged only of violating those prescribed by this board.
It is a matter of no difficulty whatever to frame a statute and information both clear beyond the question and needing no construction.
Porter, J., concurs in this dissent.