Appeal, No. 237, Oct. T., 1956, from order of Court of Common Pleas of Montgomery County, Sept. T., 1955,
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 182 Pa. Super. Page 188]
This is an appeal from an order of the Court of Common Pleas of Montgomery County directing the
[ 182 Pa. Super. Page 189]
district attorney to return to Robert F. Connelly certain moneys seized during a gambling raid.
At the time of the raid Connelly and John Bolger were operating a crap game. When the raiding officers entered the establishment, Connelly scooped up in his hands $1169 which was on the table on which the crap game was being operated. One of the officers by grabbing Connelly's hand prevented his putting this money into his pocket. There remained upon the table $11.50. When Connelly was searched by the officers, $100 was found in one pocket, together with a check for $147 endorsed in blank by one Arthur Bruno, who had apparently been a player. In another pocket was found $357, and in still another, $752. When Bolger was searched the officers found the sum of $375 in his inside coat pocket.
The Commonwealth contended that all the money found, either upon the table or in the pockets of Connelly and Bolger, was contraband. The court below, upon petition of Connelly and Bolger for the return of all of the money to them except the $11.50, held that the money taken from the table and from Connelly's hand should be forfeited to the Commonwealth, but that the remaining money taken from the pockets of Connelly and Bolger should be returned to them. The district attorney returned the money to Bolger but appealed to this Court the order to return to Connelly the money and check found in his pockets.
Money is subject to seizure when it appears that it formed an integral part of the illegal gambling operation, and had not previous to the seizure been reclaimed and taken back into the exclusive possession of the player nor been received and reduced to the exclusive possession and ownership of the winner. Rosen v. Supt. of Police Le Strange, 120 Pa. Superior Ct. 59, 181 A. 797 (1935).
[ 182 Pa. Super. Page 190]
Whether the money formed an integral part of the illegal gambling operation is a question of fact to be determined by the fact finder. Com. v. Petrillo, 158 Pa. Superior Ct. 354, 45 A.2d 404 (1946); Urban's Appeal, 148 Pa. Superior Ct. 101, 113, 24 A.2d 756 (1942).
In support of its position that the money found in Connelly's pocket was an integral part of the gambling operation the Commonwealth relies upon the cases of Com. v. Petrillo, supra; Fairmount Engine Co. v. Montgomery County, 135 Pa. Superior Ct. 367, 5 A.2d 419 (1939); and Appeal of Curcio, 106 Pa. Superior Ct. 53, 161 A. 627 (1932).
In the Petrillo case the court found that the money in question was bet on horse races and was being held awaiting the results of the races and the determination of the winners, and in the latter two cases the court found that the money was a part of an illegal lottery, the winners of which had not yet been determined. Under the circumstances in these cases the money had not been reduced to the "exclusive possession and ownership" of either the winner or proprietor of the gambling establishment.
In the present case the court held that the money taken from Connelly's pocket was not an integral part of the illegal gambling operation, but that the money on the table and that in Connelly's hand, which he had scooped up from the table, was an integral part of the illegal gambling ...