can be connected, they are not admissible." (See, too, Tilson In Underhill on Criminal v. Terwilliger, 56 N. Y. 273, 277.) Evidence (330) it is said: "But declarations prior to the crime forming no part of the res gesto of a relevant act and not communicated to the accused, or if known to him not acquiesced in, or statements and accusations by deceased which are narrative in their form and character and inadmissible as dying declarations are generally rejected." Wharton on Criminal Evidence (10th ed. [Hilton], § 225), after stating the principle, writes: "Hence on an indictment for murder, * * * declarations of deceased before his death that he was about to disappear; or that he expected violence; are inadmissible." authorities cited.) * * * (See, too, Clark v. State, 35 Ind. 492, and Aside from being naked words, the state(Montag v. People, 141 ments are not related to the homicide. V. Ill. 75; Weyrich v. People, 89 id. 90, and cases cited.) 2. Even if the testimony as to these declarations was evidence, the evidence was not admissible in this case. It was offered and received in rebuttal. When the plea is self-defense, and the defendant has been permitted to offer evidence as to the character of the alleged aggressor for violence or the traits of violence natural to the aggression, under the rule of People Rodawald (177 N. Y. 408, 423, 18 N. Y. Crim. 142), then the prosecution may offer like evidence in rebuttal. But the defendant had not made an issue as to the character or reputation of the deceased, either because she had testified to the violent act which she resisted or by the offer of any evidence as to the reputation or character of the deceased. Hence there was no issue that made the evidence in question admissible as rebuttal, and it was not admissible as part of the People's (See Wigm. Ev., §§ 890, 891, 925, 59; Kelly v. People, 229 Ill. 81-83 et seq., 86; Ben v. State, 37 Ala. 103; Pound v. State, 43 Ga. 88; Thomas v. People, 67 N. Y. 223, 224; People v. Carlton, 57 Cal. 85; State v. Eddon, 8 Wash. 292; People v. Powell, 87 Cal. 362; State v. Chaffin, 56 S. C. 434. case. See, too, People v. Webster, 139 N. Y. 81, 82.) This principle is not departed from in People v. Gallagher (75 App. Div. 39; affd., 174 N. Y. 505), but is recognized. For the court in that case, although saying that the defense had not offered evidence of the general reputation of the deceased, did say that by various kinds of evidence the defense had sought to show that the deceased was of " a quarrelsome, morose, irritable, vindictive disposition, and subject to violent outbursts of temper, and the making of threats against the defendant." Thus the defendant by evidence had raised the issue that justified the rebuttal. 3. I think that Burke v. People (4 Hun, 481) is authority. Burke was on trial for mayhem committed upon McLaughlin in a grog shop. The complainant, from some fancied danger from the defendant, had tried to borrow a pistol and an icepick. The district attorney asked the bartender of the grog shop: "Do you remember what McLaughlin said about Burke's coming into the store? and he answered. Yes, sir; he told me, when I wanted him to go and sit down and go to sleep, that he was afraid Burke would come in and beat him." The court (Davis, P. J., Daniels and Brady, JJ.) said, per Brady, J.: "Upon the exceptions thus stated the appeal in this matter depends. In reference to the first, it may be said that the statement of the complainant before the occurrence, when the prisoner was not present, was not admissible. It is not necessary to cite authorities for a rule so well established by the law of evidence. * * * The statement was injurious to the defense of the prisoner, because he claimed to have acted in self-protection; and the effect of it was to make the prisoner the aggressor, and to put the complainant in fear of bodily harm, thus justifying his resort to the poker when he could get neither pistol nor ice-pick, when, on his own testimony, there was nothing from which he was authorized to draw the conclusion that the prisoner meant to assail him in such way as to put him in any jeopardy." 4. Such declarations could not be regarded as evidence as to the character of the defendant. (Weyrich v. People, 89 Ill. 97.) By taking the witness stand the defendant subjected herself to attack upon her credibility, but did not put her general character in issue, nor had she done so by testifying to the act of violence incidental to the fatality. (Authorities supra.) Therefore, even evidence against the character of defendant was not admissible on the part of the prosecution. (See People v. Lingley, 207 N. Y. 406; People v. Richardson, 222 id. 103, 107.) The danger of recognition of such naked self-serving declarations is obvious. Fabrication of "evidence" of this kind presents little difficulty. I cannot think that the admission of this testimony was negligible. The instance is not isolated, for two other witnesses, Messinger and King, were allowed to give like testimony. There were no eye-witnesses to the homicide. The defendant had testified to an attempted act of violence little less than murder. She was entitled to be tried upon the evidence, and yet the jury were in effect informed that there was evidence that the state of the deceased was fear of his life at her hands as a desperate woman who would stop at nothing. It seems to me that the error was capital (People v. Richardson, supra, 107), and that we should reverse the judgment and grant a new trial. • MILLS, RICH, PUTNAM and BLACKMAR, JJ., concur. Judgment of conviction reversed and new trial granted. (1) SALE OF UNWHOLESOME FOOD PRODUCT IN CITY OF NEW YORK-VIOLATION OF SECTION 163, SANITARY CODE. The provisions of the Sanitary Code of the city of New York have the same force and effect as though enacted by the Legislature, and under the provisions of the Greater New York charter one who violates the same is guilty of a misdemeanor and punishable accordingly, (2) SAME. Appeal from a judgment convicting the defendant of a violation of section 163 of the Sanitary Code of the city of New York relating to the sale of unwholesome food products. Evidence examined, and held, that the defendant was properly convicted. (3) SAME-TREATED AS A MISDEMEANOR-FINE. On a conviction for a violation of section 163 of said Sanitary Code the punishment is not limited to a fine of ten dollars or ten days' imprisonment, or both, for under the provisions of the charter such violation shall be treated and punished as a misdemeanor. (4) SAME-CONSTITUTIONAL. Section 163 of the Sanitary Code is not unconstitutional upon the ground that it is unreasonable. APPEAL by the defendant, Henry Maillard, Incorporated, from a judgment of the Court of Special Sessions of the City of New York, Municipal Term, Part 1, rendered on the 26th day of March, 1918, convicting it of the crime of violating section 163 of the Sanitary Code of the City of New York. (See Code of Ordinances of City of New York, chap. 20, art. 9, § 163.) James J. Walker of counsel (Warren Leslie with him on the brief), for the appellant. William A. Walling of counsel (John F. O'Brien with him on the brief; John P. O'Brien, Corporation Counsel), Robert S. Johnstone, Assistant District Attorney of counsel (Edward Swann, District Attorney), for the respondent. MERRELL, J.: The defendant is a domestic corporation engaged in the manufacture and sale of confectionery in the borough of Manhattan, city of New York, and has been convicted at a Municipal Term of the Court of Special Sessions of the City of New York of a violation of section 163 of the Sanitary Code of the board of health of said city. The section of the Sanitary Code for a violation of which the defendant has been convicted provides as follows: * * * 6 "§ 163. No meat, vegetables, or milk, not being then healthy, fresh, sound, wholesome, or safe for human food, nor the meat of any animal that died by disease or accident, shall be brought into the city of New York or held, kept, offered for sale, or sold as such food, or kept or stored, anywhere in said city. The term meat,' as herein used, shall include fish, birds, eggs, and fowl; the term 'vegetables' shall include any product, substance, or article used as and for human food other than milk or meat; the term not sound' shall include any vegetable that is wormy. For the purpose of this section, any meat, vegetables, or milk in possession of, or held, kept, or offered for sale by, a dealer in food, shall, prima facie, be deemed to be held, kept and offered for sale as human food." The provisions of the Sanitary Code have the same force and effect as though enacted by the Legislature of the State, and under the provisions of the Greater New York charter one who violates the same is guilty of a misdemeanor and punishable accordingly. The defendant, appellant, asks reversal of the judgment of conviction herein on the ground that said judgment is against the weight of the evidence. A careful examination of the evidence has convinced us that the trial court was amply justified in holding the defendant guilty of a violation of said |