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COMMONWEALTH EX REL. LEVINE v. FAIR (06/11/58)

June 11, 1958

COMMONWEALTH EX REL. LEVINE
v.
FAIR, APPELLANT.



Appeal, No. 23, April T., 1958, from order of Court of Common Pleas of Lawrence County, Dec. T., 1957, M.D., No. 27, in case of Commonwealth of Pennsylvania ex rel. Sherman K. Levine v. Andrew L. Fair. Order reversed.

COUNSEL

W. Walter Braham, for appellant.

Sherman K. Levine, with him Orville Brown, and Frank O. Moretti, for appellee.

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

Author: Rhodes

[ 186 Pa. Super. Page 300]

OPINION BY RHODES, P.J.

This is an appeal from an order of the Court of Common Pleas of Lawrence County dated November 4, 1957, granting the prayer of relator's petition for a writ of habeas corpus and discharging him from custody.

Andrew L. Fair, a constable, arrested relator on October 30, 1957, on a warrant issued that day charging him with the crimes of forgery and uttering a forged instrument. The warrant was issued by an alderman on information made against relator and one Helen McCandless on October 29, 1957, by Ethel Rugh, private prosecutrix. After his arrest, while still in the custody of the constable and prior to a preliminary hearing, relator presented a petition for a writ of habeas

[ 186 Pa. Super. Page 301]

    corpus to the Court of Common Pleas of Lawrence County. The court entertained the petition and released relator on his own recognizance. It fixed the next day for a hearing, and directed that notice be given to counsel for the private prosecutrix, to the respondent, Andrew L. Fair, and to the Attorney General of the Commonwealth of Pennsylvania, the latter having superseded the District Attorney of Lawrence County on September 1, 1957.

At the hearing on the petition there was produced on behalf of the Commonwealth the information and warrant, and the arrest of relator was established. The court below then ruled that under the Act of July 1, 1937, P.L. 2664, 12 PS ยง 1892 et seq., it was incumbent upon the Commonwealth to go forward with evidence to show that a crime had been committed. After the initial ruling, however, the court continued the hearing from November 1 to November 4, 1957, in order to give the Commonwealth an opportunity to prepare its case. At the continued hearing the court again ruled that under the Act of 1937 the Commonwealth was required to establish by evidence that a crime had been committed, and that the case should go to the grand jury. The hearing judge did not sit as a committing magistrate; the court held that it had the right to hear testimony on the charges against relator under the Act of 1937 and determine whether a crime had been committed. The Commonwealth did not go forward although the court stated that it was incumbent upon the Commonwealth to do so. The Commonwealth took the position that this was not proper procedure at this stage of the proceeding. The court thereupon granted a writ of habeas corpus and discharged the relator. The regularity and validity of the information and warrant and the regularity of the arrest were not questioned.

[ 186 Pa. Super. Page 302]

The constable appealed. See Com. ex rel. Gottschall v. Newcomet, 18 Pa. ...


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