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August 17, 1956


Appeal, No. 106, Oct. T., 1955, from order of Court of Quarter Sessions, Oyer and Terminer and General Jail Delivery of Montgomery County, Sept. T., 1953, No. 169, in case of Commonwealth of Pennsylvania v. John George O'Brien. Order affirmed.


W. Edward Bushong, Jr., for appellant.

Herbert C. Nelson, Assistant District Attorney, with him Bernard E. DiJoseph, District Attorney, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ. (rhodes, P.j., absent).

Author: Woodside

[ 181 Pa. Super. Page 384]


This is an appeal from the refusal of the court below to grant defendant's motion to quash an indictment on the ground that he was not present at a preliminary hearing.

An information was filed by a police officer before a justice of the peace of Montgomery County charging the defendant John G. O'Brien with armed robbery,

[ 181 Pa. Super. Page 385]

    burglary and violation of the Firearms Act on August 12, 1953 in that county.

On October 21, 1953 the justice of the peace held a preliminary hearing at which the defendant was not present because he was at the time in jail in Philadelphia County awaiting trial on a charge for an offense committed there on which he was subsequently sentenced to the penitentiary where he is now incarcerated. The transcript of the justice of the peace was filed October 24, 1953. It shows that Police Lt. Frank Jackson testified at the hearing; that O'Brien had signed a statement admitting participation in the robbery and burglary; that he was arrested in Philadelphia September 19, 1953 and was being held there for a crime committed in that city, and that a warrant had been issued and lodged with Philadelphia authorities.

On the basis of the return the district attorney submitted a bill to the grand jury without special leave of court. The grand jury found a true bill on January 27, 1954 and the court issued a bench warrant for the defendant the same day.

From the time the information was made against the defendant in Montgomery County to the present time, the has been incarcerated in Philadelphia County for the offense committed there. During this time the Montgomery County authorities knew of the whereabouts of the defendant.

On September 16, 1955, over a year and a half after the indictment, but before being brought to Montgomery County to stand trial, the defendant moved to quash the indictment on the ground he was not present at a preliminary hearing.*fn1

[ 181 Pa. Super. Page 386]

The basic question before us is whether a grand jury may indict, without special permission of court, a defendant who was not present at a preliminary hearing because when it was held he was in prison in another county of this Commonwealth.

It would seem that this question would long since have been settled in Pennsylvania, but it has not.

Some related principles have been established.

It is settled that a district attorney or attorney general has no authority to send to a grand jury a bill of indictment where there has been no complaint before a magistrate and binding over for court unless he first obtains leave of court to do so. Com. v. Wilson, 134 Pa. Superior Ct. 222, 227, 228, 229, 4 A.2d 324 (1938).

It is also settled that a defendant is deemed to have waived the right to raise any question concerning his arrest or a preliminary hearing after he has entered a plea. Com. ex rel. Scasserra v. Maroney, 179 Pa. Superior Ct. 150, 154, 115 A.2d 912 (1955); Com. ex rel. Geisel v. Ashe, 165 Pa. Superior Ct. 41, 68 A.2d 360 (1949); Com. v. Poley, 173 Pa. Superior Ct. 331, 336, 98 A.2d 766 (1953); Com. v. Viscount, 118 Pa. Superior Ct. 595, 599, 179 A. 858 (1935); Com. ex rel. Musser v. Day, 180 Pa. Superior Ct. 191, 119 A.2d 811 (1956), Com. ex rel. Rushkowski v. Burke, 171 Pa. Superior Ct. 1, 5, 89 A.2d 899 (1952).Judge DREW, subsequently Chief Justice of our Supreme Court, indicated in Com. v. Murawski, 101 Pa. Superior Ct. 430 (1931) that a deficiency in a preliminary hearing cannot be raised in

[ 181 Pa. Super. Page 387]

    a motion to quash an indictment, but only in proceedings to be discharged from custody. See also Com. v. Gross, 172 Pa. Superior Ct. 85, 92, 92 A.2d 251 (1952); Com. v. Brennan, 193 Pa. 567, 44 A. 498 (1899); Com. v. Schoen, 25 Pa. Superior Ct. 211, 213 (1904); Com. v. Poley, supra. However, indictments have been quashed on the ground that there was no preliminary hearing. Com. v. Green, 126 Pa. 531, 17 A. 878 (1889).

It is also settled that one has no constitutional right to be present at a preliminary hearing, or, indeed, even to have one. Goldsby v. United States, 160 U.S. 70, 73, 16 S.Ct. 216, 40 L.Ed. 343 (1895); Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 340 (1913); Com. ex rel. Bandi v. Ashe, 367 Pa. 234, 80 A.2d 62 (1951); Com. v. Jobe, 91 Pa. Superior Ct. 110, 115 (1927); Clarke v. Huff, 119 F.2d 204 (1941); Van Dam v. United States, 23 F.2d 235 (1928); State v. War, 38 N.J. Super. 201, 118 A.2d 553, 557 (1955).

Not all rights, however, are constitutional rights and the question remains whether defendant has a statutory or common law right to be present at such hearing.

Preliminary hearings were unknown to the early common law. They are creatures of statutes, and it is said in 22 C.J.S., Criminal Law, ยง 332 that in the absence of a statute no preliminary examination is necessary. A review of the statutes under which preliminary hearings developed therefore becomes important.

Strangely enough preliminary hearings did not originate as a means of protecting persons arrested for crime; but rather as an instrument to restrict the indiscriminate release of such persons.

The development of the preliminary hearing can be followed in a series of four English statutes of the 15th and 16th centuries, each of which sets forth the reason for its enactment. These statutes are ...

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