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COMMONWEALTH v. BAKER (01/21/58)

January 21, 1958

COMMONWEALTH
v.
BAKER, APPELLANT.



Appeal, No. 170, April T., 1957, from judgment of Court of Quarter Sessions of Mercer County, June T., 1956, No. 97, in case of Commonwealth of Pennsylvania v. Joseph R. Baker. Judgment affirmed.

COUNSEL

Albert E. Acker, with him Wiesen, Cusick, Madden, Joyce, Acker & McKay, for appellant.

E. M. Bell, Assistant District Attorney, with him John Q. Stranahan, District Attorney, for appellee.

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

Author: Gunther

[ 185 Pa. Super. Page 516]

OPINION BY GUNTHER, J.

Appellant, Joseph R. Baker, was convicted of conducting or carrying on of a lottery in violation of the

[ 185 Pa. Super. Page 517]

Act of 1939, June 24, P.L. 872, section 601, 18 P.S. 4601. From the sentence imposed, he has taken this appeal.

On May 2, 1956, the District Attorney's office, together with the police of the City of Sharon made a raid on two different grocery stores suspected of numbers operations and arrested the alleged operators, Emerson O'Brien and Francis Palmer. In O'Brien's store certain number slips and $5.23 were found in a cigar box which were confiscated. In Palmer's store certain numbers slips, lottery tickets and money were found which were also confiscated. Both O'Brien and Palmer were charged with possessing and selling numbers and were indicted on June 5, 1956. On June 11, 1956, both O'Brien and Palmer pleaded guilty to selling and possessing numbers slips on May 2, 1956.

Both Palmer and O'Brien implicated appellant as being the "pick-up" man in the operation of said lotteries and as a result of this information, Baker was indicted for erecting, setting up, making or drawing a lottery or being concerned in the managing, conducting or carrying on the same. On June 8, 1956, appellant moved to quash the indictment on the ground that, in calling the original panel of jurors from which the grand jury was selected, the list of the names, occupations and residences of every person placed in the jury wheel was not kept and certified by the prothonotary as required by the Act of 1874, March 18, P.L. 46, section 3, 17 P.S. section 985. Upon taking of testimony, it further developed that the jury commissioners were not sworn prior to the time the jury wheel was filled. This additional objection was made at the time of hearing on the motion to quash as being in violation of the Act of 1867, April 10, P.L. 62, section 3, 17 P.S. 943. The court below immediately overruled the motion to quash, and because the jury list was

[ 185 Pa. Super. Page 518]

    posted both in the prothonotary's office and the sheriff's office but not certified, entered an order, nunc pro tunc, to have the list certified, ...


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