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COMMONWEALTH v. BLYTHE (07/21/55)

July 21, 1955

COMMONWEALTH, APPELLANT
v.
BLYTHE



Appeal, No. 246, April T., 1954, from order of Court of Quarter Sessions of Somerset County, Sept. T., 1953, No. 65, in case of Commonwealth of Pennsylvania v. Frederick H. Blythe et al. Order reversed to extent indicated.

COUNSEL

Frank A. Orban, Jr., District Attorney, for appellant.

Wilbert II. Beachy, Jr., for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Hirt

[ 178 Pa. Super. Page 577]

OPINION BY HIRT, J.

Frederick H. Blythe was the owner and Joseph Runo was the operator of a public Bingo game conducted on a large scale in an amusement park in Somerset County, known as Ideal Park. In the operation of the game patrons purchased Bingo cards from any one of five attendants and the stakes played for were "prizes" of various types of merchandise. It is conceded as it must be that the Bingo game as conducted was an unlawful gambling operation. The essential elements were present: a prize was to be won; the winner was determined by chance, and a consideration was paid by the player. Cf. Commonwealth v. Lund, 142 Pa. Superior Ct. 208, 15 A.2d 839. On Sunday, August 30, 1953, the building in which the game was in operation was raided at the direction of the district attorney. Articles to be won as prizes were on display on or under tables, on stands, on shelves or attached to the wall of a large room where the game was played. In a readily accessible adjoining storeroom there was a large stock of additional merchandise of the same general class. Some of the articles in the storeroom had recently been shipped to Ideal Park by Blythe from other places where he had operated Bingo games. The goods and merchandise seized by the officers in the raid have a total value of upwards of $7,000. Cash in the sum of $312.20 was also taken as well as all of the equipment and devices used in the conduct of the game.

Although under § 60 of the Act of March 31, 1860, P.L. 382, 18 PS § 1445, it was the duty of the county detective to make a return of the property which he had seized, to the next term of the quarter sessions of Somerset County (which began on September 14, 1953), this provision of the law was not strictly complied with. A return was made to the court, but not until December 11, 1953, setting forth in detail a list

[ 178 Pa. Super. Page 578]

    of all of the articles seized in the raid and praying for an order forfeiture. The lower court, after hearing, concluded that "all of the merchandise, money and equipment here seized is capable of lawful use" and for that reason was not subject to forfeiture as part of the gambling operation. The propriety of the order in this case raises pure questions of law from which the Commonwealth clearly had the right of appeal. Cf. Commonwealth v. Bruno, 176 Pa. Superior Ct. 115, 106 A.2d 905. The order will be reversed.

Regardless of the manner in which the issue under § 60 of the Act of 1860 is raised, the proceeding for forfeiture of property "used for the purpose of unlawful gaming" is in rem. Com. v. Heiland, 113 Pa. Superior Ct. 534, 173 A. 759. And the delay of three months in making the return in this case does not raise a jurisdictional question. Gambling devices and money or merchandise identified as parts of the gambling operation are outlaw property and the jurisdiction of the quarter sessions to proceed in rem for an order of forfeiture cannot be ousted by the mere failure of an officer to perform an administrative duty. A return by the officer who made the seizure is a statutory method of initiating a forfeiture proceeding. But such action may originate in a petition for forfeiture by the district attorney or by the officer who seized the property regardless of whether any return was ever made, or by petition of the owner of the property seeking its return. Schuettler v. Maurer et al., 159 Pa. Superior Ct. 110, 46 A.2d 586; Mills Novelty Company's Appeal, 316 Pa. 449, 175 A. 548. What is essential in such proceeding, however initiated, is that the owner or possessor of the property be afforded the opportunity of a full hearing on the question whether the device together with the property seized, was used for the purpose of unlawful gaming. The return in the present case might have

[ 178 Pa. Super. Page 579]

    been authorized by the lower court nunc pro tunc, Commonwealth v. Heiland, supra, but such order was not essential to the ...


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