The defendant is charged with selling a pint of whisky to a police officer on the 29th day of January, 1934, at the *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.