Appeal, No. 303, Oct. T., 1954, from judgment of Court of Quarter Sessions of Philadelphia County, Nov. T., 1952, No. 542, in case of Commonwealth of Pennsylvania v. Louis Ventura. Judgment affirmed.
Sidney Ginsberg, Philadelphia, submitted a brief for appellant.
Samuel Dash, Assistant District Attorney, with him Christopher F. Edley, Assistant District Attorney, Michael von Moschzisker, First Assistant District Attorney and Richardson Dilworth, District Attorney, Philadelphia, for appellee.
Before Rhodes, P. J., Ross, Gunther, Wright, Woodside and Ervin, JJ. (hirt, J., absent).
[ 177 Pa. Super. Page 175]
The appellant, Louis Ventura, was indicted for engaging in "pool selling and bookmaking". After his petition to quash the indictment was refused, Ventura was convicted by a judge sitting without a jury, and sentenced. His appeal to this Court followed.
The case is before us on an agreed statement of facts from which we quote the following: "2. On May 3, 1952 Magistrate James W. McBride, a Magistrate in and for the County and City of Philadelphia issued a warrant for the arrest of the defendant, Louis Ventura, pursuant to a complaint sworn to by Patrolman Bridgeford No. 822, a police officer of the Police Department of the City of Philadelphia charging the defendant with pool selling and bookmaking. 3. On May 3, 1952 pursuant to the above warrant of arrest, Patrolman Bridgeford arrested the defendant at 6237 Landsdowne Avenue, Philadelphia, Pennsylvania. 4. The defendant was thereupon taken to Magistrate McBride's office, Magistrate Court No. 23 at 47 North Fifty-Second Street, Philadelphia, Pennsylvania and after a hearing in the absence of a stenographer was on May 8, 1952 bound over to the 'present term' of the Grand Jury. The defendant entered bail in the sum of five hundred ($500.00) dollars."
It is the defendant's contention that the magistrate had no jurisdiction to conduct a preliminary hearing on a police warrant because such hearing was held in the private office of the magistrate and not in a divisional police court.
The Commonwealth not only disputes this contention but, also, takes the position that the appellant after he had entered bail, been indicted, tried and convicted cannot successfully attack the alleged irregularity in the magistrate's proceeding by a motion to quash the indictment.
[ 177 Pa. Super. Page 176]
The Magistrates' Court Act of June 15, 1937, P.L. 1743, sec. 11, as amended, 42 PS Sec. 1111, provides for the establishment of divisional police courts presided over by magistrates, rotatively assigned by the chief magistrate, in which in addition to the hearings regularly held therein, shall be held exclusively (except as provided in Section 10 hereof) the hearings of all persons arrested on sight or on a police warrant for the following indictable offenses, that is to say: "For treason, sedition, murder... pool selling and book making... and also all conspiracies,... to commit any of the foregoing offenses,... ".
It is agreed in the case at bar that the defendant did not have a preliminary hearing in a divisional police court, the hearing having been held in the private ...