John B. O'Brien, Easton, for appellant.
Alfred M. Nittle, Asst. Dist. Atty., Elias W. Spengler, Dist. Atty., Easton, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.
[ 174 Pa. Super. Page 175]
Appellant was convicted of establishing and maintaining a gambling place and of pool-selling and bookmaking. The Penal Code of June 24, 1939, P.L. 872, §§ 605, 607, 18 P.S. §§ 4605, 4607. He does not question the sufficiency of the evidence to support the conviction and his arguments here are directed solely to the refusal of his petition for the return of the gambling paraphernalia seized on a search warrant and the admission into evidence at the trial of the seized articles.
The articles, as described in the opinion of Judge Woodring, consisted of 'Armstrong racing sheets' and other racing journals, the sixty slips of paper on which were written the names of various race tracks, operating on the day of the raid, names of horses which were running on those tracks, the number of the race in which said horse or horses were to run, and a dollar amount.' The raiding officers also seized 'a wooden rack from defendant's premises during the raid which contained slots or pockets, about four or five horizontally, and eight deep, vertically', together with 'a box of miscellaneous content including pencils, paper, pads, paper clips, etc., and papers and records which, if believed, evidenced upwards of 375 'numbers bets'. The testimony of detectives and police officers identified the articles as gambling devices and described the manner in which such articles were customarily used in pool-selling and bookmaking.
The paraphernalia had been seized in a raid personally conducted by the district attorney under a search warrant issued by an alderman to a county detective, William J. Hontz, upon his information. The information before as a signature only Hontz's name in typewriting and, although he averred that he had 'probable cause for believing and just reasonable grounds
[ 174 Pa. Super. Page 176]
for believing and does believe that Gambling Devices' were concealed in appellant's premises he did not state the source of his information or the facts upon which his belief was grounded.
Before he was indicted, appellant petitioned for the return of his property and for a rule on the Commonwealth to show cause why it should not be returned. The court fixed a date for a hearing, which was attended by appellant's counsel and an assistant district attorney. Judge Woodring reports that 'The petition was considered at length, factual representations made by counsel for both sides, and legal argument presented; whereupon, the court dismissed the petition and refused the issuance of a rule.'
Over appellant's objections, based upon the alleged illegal seizure, the articles were admitted into evidence, and the verdict of guilty establishes that they were gambling devices. The information upon which the search warrant was issued was defective for lack of Hontz's signature.*fn1 Whether, in view of the provision*fn2 of the Act of March 31, ...