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January 20, 1953



Harry R. Back of Back & Levy, Philadelphia, for appellant.

Malcolm Berkowitz, Asst. Dist. Atty., Samuel Dash, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty. and Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.

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

Author: Reno

[ 172 Pa. Super. Page 514]

RENO, Judge.

Appellant, a duly elected and officiating magistrate of the City of Philadelphia, was convicted on an indictment charging (1) violations of the Magistrates' Court Act of June 15, 1937, P.L.1743, as amended, 42 P.S. § 1101 et seq.; (2) Malfeasance, misfeasance and nonfeasance; and (3) misconduct in office. He was sentenced to pay a fine of $500, undergo imprisonment for 3 months, and his office was declared forfeited and vacant.

He was also convicted on two other indictments upon which sentence was suspended, and no appeals were taken therein. Both sides have briefed questions

[ 172 Pa. Super. Page 515]

    arising out of those convictions but they are not before us and will not be considered on this appeal. Com. ex rel. Holly v. Ashe, 368 Pa. 211, 82 A.2d 244; Com. v. Kimmel, 172 Pa. Super. 76, 92 A.2d 247. Moreover, we consider only the points relating to this appeal which appellant has briefed.

I. The Act. The constitutionality of the criminal provisions of the Act was upheld generally in Rutenberg v. City of Philadelphia, 329 Pa. 26, 35, 196 A. 73, 78, and the purpose of the sections here pertinent was stated: 'Sections 15 to 20, inclusive, * * * seek to meet the need for drastic reform in the taking of insufficient or worthless bail. Probably the discharge of persons charged with crime, on 'straw bail,' has been the most harmful practice of the present system. Discharges have been issued without requiring full and proper justification of the surety offered, and the magistrates have been dilatory in returning bail to the quarter sessions court, or have entirely failed to do so. So-called 'straw bondsmen' have imposed upon individual magistrates who had no facilities for checking encumbrances on real estate offered as security. It has been impossible for twenty-eight magistrates, acting independently, to detect and prevent the entry of fraudulent bail.'

Section 15 requires the magistrate who holds a preliminary hearing to fix the amount of the bail, and he, but no other magistrate, may in certain cases, allow 'bail to be entered without real estate security where, in his opinion, the evidence produced so warrants * * *.' But once the bail has been fixed by a magistrate, either for trial in the criminal courts or for a further preliminary hearing, no other magistrate may increase or decrease the amount of the bail, or release without bail or upon defendant's own recognizance.

The magistrate who takes the bail, whether fixed by him or another magistrate, is required to 'make a due and thorough investigation, under oath, into the financial

[ 172 Pa. Super. Page 516]

    responsibility of the recognizor or surety, and it shall be his duty to take of such recognizor or surety a written justification under oath setting forth', inter alia, detailed information of the name and address of the bondsman, a description of the property and its location in Philadelphia, its value, the liens against it, and other relevant data. Id. § 16. No bail shall be taken without a justification and then only if the 'surety, recognizor or bondsman offers as security a property situate within the city of Philadelphia, * * *.' Id. § 17.

In addition, before accepting bail, the magistrate is required to secure from the city controller a certificate showing the name of the owner of the property offered as security, the amount of unpaid taxes thereon, the amount of liens thereon, its assessed value, and whether the same property has theretofore been accepted as bail and whether that bail is still in force. Id. § 18.

Having secured the written and verified justification and the controller's certificate, and being satisfied thereby 'that there is sufficient equity in the property tendered as security', the magistrate 'may accept the surety or bondsman as bail, and thereupon stamp or note upon the deed of the surety or bondsman, which said magistrate shall require * * * to be produced before him, the fact that bail has been accepted by him, * * *.' Id. § 19.

The penalty provision, Id. § 44, is printed in ...

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