Carl B. Shelley, Shelley & Reynolds, Harrisburg, for appellant.
H. F. Dowling, Dist. Atty., Harrisburg, for appellee.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright and Woodside, Jj.
[ 175 Pa. Super. Page 80]
Eugene A. Magaro, a club steward, was convicted in Dauphin County on a bill of indictment charging him with keeping a gaming house and possessing, setting up and operating gambling devices in violation of the Act of 1939, P.L. 872, § 605, 18 P.S. § 4605. His motion for a new trial was overruled, and this appeal followed.
On Sunday, April 27, 1952, a search warrant was issued and served on appellant at the club, resulting in the seizure of four slot machines, a punch board, and several prizes. On Monday, April 28, 1952, information was made, based upon the evidence seized, and appellant was arrested. On May 12, 1952, before indictment, appellant petitioned the lower court for a rule to show cause why the search warrant should not be quashed, the evidence suppressed, and he be discharged, alleging that the issuance and service of the search warrant on Sunday was void under the Act of 1705, 1 Smith Laws 25, § 4, 44 P.S. § 1. After exhaustive consideration in a noteworthy opinion by Judge Kreider, the rule was discharged. Appellant was subsequently indicted and tried by the court without a jury. At the trial, appellant moved to quash the indictment, objected to the admission of the evidence obtained under the search warrant, and demurred to the evidence. All of these issues were resolved against appellant by the trial judge.
In the present appeal, appellant has raised two questions, first, that a warrant may not 'be served on Sunday to search premises for slot machines where there
[ 175 Pa. Super. Page 81]
has been no open or visible disturbance of the public peace'; and, second, that the evidence obtained thereunder is not admissible.
The basis of appellant's first contention is that the search warrant was issued, served and executed on Sunday, contrary to the Act of 1705, supra, which reads as follows: 'No person or persons, upon the first day of the week, shall serve or execute, or cause to be served or executed, any writ, precept, warrant, order, judgment or decree, except in case of treason, felony or breach of the peace; but the serving of any such writ, precept, warrant, order, judgment or decree shall be void, to all intents and purposes whatsoever; and the person or persons so serving or executing the same, shall be as liable to the suit of the party grieved, and to answer damages to him for doing thereof, as if he or they had done the same without any writ, precept, warrant or order, judgment or decree at all.'
Our Act of 1705 was based on Section 6 of the Statute of 29 Charles II, cap. 7, which was enacted in England in 1667. See Omit v. Commonwealth, 21 Pa. 426. That Act similarly provided that 'noe person or persons upon the Lord's Day shall serve or execute or cause to be served or executed any writt, processe, warrant, order, judgment or decree (except in cases of treason, felony, or breach of the peace). * * *' In Rawlins v. Ellis, 153 English Reports (Reprints) 1147, 16 N. & W. 172, 16 L.J.Ex. 5, 10 Jur. 1039, plaintiff brought an action for assault and false imprisonment against police-inspectors who had arrested him on Sunday for unlawfully conspiring to deprive another of the peaceable possession of a certain house. In ...