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COMMONWEALTH v. O'BRIEN (05/27/57)

May 27, 1957

COMMONWEALTH
v.
O'BRIEN, APPELLANT.



Appeal, No. 177, Jan. T., 1957, from decree of Superior Court of Pennsylvania, Oct. T., 1956, No. 106, affirming decree of Court of Quarter Sessions, Oyer & Terminer and General Jail Delivery, Montgomery County, Sept. T., 1953, No. 169, in case of Commonwealth of Pennsylvania v. John George O'Brien. Appeal dismissed.

COUNSEL

W. Edward Bushong, Jr., for appellant.

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

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

[ 389 Pa. Page 110]

OPINION PER CURIAM

This appeal was allowed from a judgment of the Superior Court affirming the order of the Court of Quarter Sessions of Montgomery County in which the appellant's motion to quash an indictment brought against him was refused.

The appeal raises the following question: May a grand jury indict, without special permission of court, a defendant who, serving a prison sentence in another county, was not present at the preliminary hearing? The Superior Court rendered a decision on the merits reported in 181 Pa. Superior Ct. 382, 124 A.2d 666 (1956).

It was not necessary for the Superior Court to have determined the substantive question. Unless a bill of indictment is defective on its face, when a defendant moves to quash an indictment prior to trial, and his motion is denied by the trial court, the court's order

[ 389 Pa. Page 111]

    is interlocutory and hence, not appealable. Petition of Quay, 189 Pa. 517, 542, 42 A. 199 (1899).

The Superior Court should, therefore, have quashed the appeal to it from the order of the quarter sessions court.

Disposit ...


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