People v. Firestone

New York City Magistrates' Court

People v. Firestone

150 Misc. 414, 270 N.Y.S. 486, 1934 N.Y. Misc. LEXIS 1173

DecidedFebruary 1, 1934

StatusPublished

This text of 150 Misc. 414 (People v. Firestone) is published on Counsel Stack Legal Research, covering New York City Magistrates' Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Firestone, 150 Misc. 414, 270 N.Y.S. 486, 1934 N.Y. Misc. LEXIS 1173 (N.Y. Super. Ct. 1934).

Pincite

Opinion

Aurelio, J.

The defendant is charged with selling a pint of whisky to a police officer on the 29th day of January, 1934, at the [415]*415premises No. 985 First avenue, New York city. The evidence shows that the defendant conducts a drug store at that address and has permit DR267, dated December 12, 1933, issued by the New York State Alcoholic Beverage Control Board. The evidence further shows that the defendant did not obtain from the officer a written prescription of a regularly licensed physician when he made the sale. It is claimed that the defendant violated section 67 of the rules and regulations adopted by the Alcoholic Beverage Control Board which among other things provides in subdivision b thereof as follows: “ Liquors or wines may be sold only upon the written prescription of a regularly licensed physician, signed by such physician, in quantity not exceeding one pint of liquor or one quart of wine,” etc. It will be noted that this rule does not declare a violation thereof to be a misdemeanor.

Subdivision 4 of section 97 of chapter 180 of the Laws of 1933 provides: “ Violation by any person of any rule of the state board shall be a misdemeanor if such rule so provides and if such rule shall be published in a manner prescribed by such board.”

Inasmuch as rule 67 referred to does not declare a violation thereof to be a misdemeanor, there can be no criminal prosecution, and this defendant is discharged.

Free access — add to your briefcase to read the full text and ask questions with AI

Aurelio, J.

The defendant is charged with selling a pint of whisky to a police officer on the 29th day of January, 1934, at the [415]*415premises No. 985 First avenue, New York city. The evidence shows that the defendant conducts a drug store at that address and has permit DR267, dated December 12, 1933, issued by the New York State Alcoholic Beverage Control Board. The evidence further shows that the defendant did not obtain from the officer a written prescription of a regularly licensed physician when he made the sale. It is claimed that the defendant violated section 67 of the rules and regulations adopted by the Alcoholic Beverage Control Board which among other things provides in subdivision b thereof as follows: “ Liquors or wines may be sold only upon the written prescription of a regularly licensed physician, signed by such physician, in quantity not exceeding one pint of liquor or one quart of wine,” etc. It will be noted that this rule does not declare a violation thereof to be a misdemeanor.

Subdivision 4 of section 97 of chapter 180 of the Laws of 1933 provides: “ Violation by any person of any rule of the state board shall be a misdemeanor if such rule so provides and if such rule shall be published in a manner prescribed by such board.”

Inasmuch as rule 67 referred to does not declare a violation thereof to be a misdemeanor, there can be no criminal prosecution, and this defendant is discharged.

Cite This Page — Counsel Stack

Bluebook (online)

150 Misc. 414, 270 N.Y.S. 486, 1934 N.Y. Misc. LEXIS 1173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-firestone-nynycmagct-1934.