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July 13, 1954



Thomas D. McBride, Philadelphia, for appellant.

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

Before Ross, Acting P. J., and Gunther, Wright, Woodside and Ervin, JJ.

Author: Wright

[ 176 Pa. Super. Page 121]

WRIGHT, Judge.

On April 7, 1952, following a complaint that Paul DiDio was conducting a lottery, police officers entered his home and made a search in his presence. In a flower vase they found a black cloth bag containing the following numbers paraphernalia: 2,674 straight numbers plays, 62 lead and lead parley plays, a carbon sheet with impressions of numbers plays, and a talley sheet showing the names and numbers of various players. The officers did not have either a search warrant or a warrant of arrest. DiDio was taken into custody and booked at the police station on the charge of being concerned in the conduct of a lottery and establishing a gambling place. See Sections 601 and 605 of the Penal Code, Act of June 24, 1939, P.L. 872, 18 P.S. §§ 4601 and 4605. While not material to our present decision, it appears that DiDio was furnished with a certificate of the charge*fn1 On the following morning before a magistrate an information was made and a hearing took place. The paraphernalia seized was exhibited to the magistrate as evidence, and DiDio was held in bail for court. Instead of furnishing bail, he applied to the Court of Common Pleas for a writ of habeas corpus. A writ was issued and bail fixed pending its disposition. Evidence was heard by the lower court and the writ was then discharged. This appeal followed.

[ 176 Pa. Super. Page 122]

The Commonwealth has moved to quash the appeal on the ground that the order of the court below is interlocutory in nature. Appellant relies principally upon Section 7 of the Act of May 25, 1951, P.L. 415, 12 P.S. § 1907, which provides in pertinent part as follows: 'From the decision of any judge upon any petition for a writ of habeas corpus, or upon any order made pursuant to a hearing on the writ, an appeal may be taken as in other cases'. The Commonwealth answers that the statutory provision quoted was intended solely to change the rule enunciated in Commonwealth ex rel. Mattox v. Superintendent of County Prison, 152 Pa. Super. 167, 31 A.2d 576, in which we held that appeals in habeas corpus cases were in the nature of certiorari and brought up for review only the regularity of the record. We do not express an opinion with regard to an appeal which raises only questions which may well be determined at trial, such as the sufficiency of the evidence before the magistrate. See Commonwealth ex rel. Stingel v. Hess, 154 Pa. Super. 639, 36 A.2d 848. In the case at bar, however, appellant has also raised the fundamental contention that the magistrate had no jurisdiction of his person, and we will therefore consider the appeal on its merits.

Appellant's contentions are as follows: (1) 'Where a person is illegally arrested and involuntarily brought physically before a magistrate and complaint is made against him but no copy thereof is served upon him nor any judicial process issued against him, has the magistrate jurisdiction of his person for the purpose of holding a preliminary hearing of the complaint'; (2) 'On the above stated facts have the preliminary proceedings been conducted according to law'; (3) 'When the only evidence received by the magistrate at the preliminary hearing and by the court on habeas corpus

[ 176 Pa. Super. Page 123]

    was obtained in violation of relator's right against self-incrimination guaranteed by Article I, § 9 of the Pennsylvania Constitution, P.S., was the evidence sufficient to hold him to answer'.

The learned judge of the court below assumed that the offense charged (a misdemeanor) was not committed in the presence of the arresting officers*fn2, and held that appellant's arrest without a warrant was therefore illegal. He adopted the position of the Commonwealth, however, that the illegal arrest did not affect the power of the magistrate to conduct a preliminary hearing and to commit appellant for action by the grand jury. Appellant concedes that the defect of which he complains could have readily been cured by the issuance of a warrant after the information was made. The only purpose served by a warrant is to bring the defendant before the magistrate. We are in agreement that its issuance is not required so far as the validity of the magistrate's hearing is concerned, when the defendant has been arrested, no matter how illegally, and is already physically present. The appellate court cases relied upon by appellant*fn3 actually involve situations in which there was either no information or the information was insufficient.

It is well settled in Pennsylvania that the manner in which a person accused of crime is brought within the Commonwealth does not affect the jurisdiction of the court. In Commonwealth v. Kenney, 80 Pa. Super. 418, we refused to countenance a ...

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