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WEINTRAUB (03/14/50)

March 14, 1950

IN RE WEINTRAUB


COUNSEL

Nathan L. Posner, Philadelphia, for appellant.

Abraham Berkowitz, Assistant District Attorney, John H. Maurer, District Attorney, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Fine, JJ.

Author: Rhodes

[ 166 Pa. Super. Page 344]

RHODES, President Judge.

This is an appeal from an order of the Municipal Court (Juvenile Division) committing the minor to the Pennsylvania Industrial School at White Hill.

The petition charged that he was a juvenile delinquent. As evidence of his delinquency the petition charged him with the destruction of personal property of others, with the possible commission of larceny, and with writing a threatening letter. The minor was born on November 25, 1933. Hearings were held before President Judge Boyle of the Municipal Court on September 8, 21, and 23, 1949, and a record made of 444 pages. Upon this record the Judge found that the minor was a delinquent, that he possessed serious abnormal sexual urges, that he is potentially and sexually dangerous, that, if he is permitted to remain at large, even upon probation, he would likely be a danger and a menace to the community, and that for his own welfare and that of his family and the community at large he should be committed to an institution where he can receive psychiatric

[ 166 Pa. Super. Page 345]

    treatment. He thereupon made an order of commitment.

As provided by section 15 of the Act of June 2, 1933, P.L. 1433, 11 P.S. ยง 257,*fn1 a petition for review and rehearing was filed on behalf of the minor by his mother within twenty-one days after the order of commitment. The petition averred generally that the court erred in its findings of fact and in its conclusions of law, that the order of the court was improvidently and inadvertently made, that the court erred in refusing counsel for the minor the right to further cross-examine the witnesses, and that the commitment was illegal. The Commonwealth filed an answer, and a rehearing was held on October 19, 1949. At that time the testimony taken at the previous hearings on September 8, 21, and 23, 1949, was admitted as part of the record on the rehearing. Counsel for the minor was given opportunity to present further testimony and to sustain the averments of his petition. Counsel at the time stated that he did not challenge the finding

[ 166 Pa. Super. Page 346]

    of the court that the minor was a delinquent. His contention was that the rehearing on his petition was de novo and the equivalent of a new trial, and that all the witnesses for the Commonwealth should be recalled to establish again the facts to which they testified in order that he might be able to prove by further cross-examination, in addition to the testimony presented in defense on causation, what caused the minor to commit the acts for which he has been adjudged delinquent. No additional testimony being offered by counsel for the minor, the court refused his request that all the witnesses for the Commonwealth be recalled. After reviewing the record it entered the final order on November 2, 1949, affirming the commitment, from which this appeal has been taken.

The issues presented on this appeal are limited. The court did not classify the minor as a sexual psychopath or as a constitutional psychopathic inferior. The court found him to be a delinquent. Delinquency is admitted, and it is undisputed that he is abnormal sexually and requires treatment. Five psychiatrists testified, and the opinion of another was incorporated in the record. They all agreed that the minor required psychiatric treatment. The three engaged by the minor did not think that he should be placed in an institution. It was their opinion that the minor was not potentially dangerous, and that he could safely be permitted to be at large providing he received proper psychiatric treatment, he being kept under close ...


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