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June 11, 1958


Appeal, No. 100, Oct. T., 1958, from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1957, No. 10053, in case of Commonwealth of Pennsylvania ex rel. Harold Jones v. Chief Magistrate Joseph J. Hersch. Order affirmed; reargument refused July 7, 1958.


Juanita Kidd Stout, Assistant District Attorney, with her James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellant.

Irving R. Shull, with him Alfred I. Ginsberg and Bernard L. Lemisch, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Woodside

[ 187 Pa. Super. Page 97]


This habeas corpus case is unique in so many ways, that there probably never was, and never will be again, anything like it. From reading the record, it is difficult to determine who was on trial for what - the police officer who arrested the prosecutor, or the prosecutor who arrested the police officer, or the police officer's superiors who may or may not have ordered the arrests of the prosecutor, or the police system which encouraged such arrests, or the magistrate who held the police officer for court, or the magistrates who discharged the prosecutor, or the district attorney's office which represented the convicted gambler against the police officer, or the counsel who brought the habeas corpus action against the magistrate before his client was in custody, or the judge who discharged the police officer, or the judges who did not sentence gamblers to jail, or the judges who held accused gamblers for court after the magistrates had discharged them. To attempt to thread our way through the maze of recorded criminations and recriminations, procedural novelties, and unfamiliar roles of the participants, would require an endless recitation of facts, statements of legal principles and dissertations on judicial philosophies, which would be hereafter quoted to the courts as authority in cases which could not possibly bear any similarity to the multiplicity of errors and contradictions found in this record.

Martin Pascuzzo, a convicted gambler, swore out a warrant for the arrest of a Philadelphia police officer for false imprisonment, after the police officer had arrested or participated with other officers in the arrest of Pascuzzo as a common gambler on four different occasions during 1956 and 1957. After each of these four arrests Pascuzzo was discharged by a magistrate on the gambling charges.

[ 187 Pa. Super. Page 98]

The police officer was given a hearing before a Philadelphia magistrate who, encouraged by an assistant district attorney who appeared and assisted the prosecutor, concluded: "It is my opinion in this case that this gentleman here, Pascuzzo, has an established restaurant ... and if he was a common gambler he would not be in business ... While I think it (presumably "it" was referring to the action of the police officer) wasn't meant to harass this man, I think he certainly was. I think it was over-zealous on the officer's part. I will hold him for court in $300 bail."

Counsel for the officer had prepared a petition for a writ of habeas corpus against the magistrate having "anticipated" the magistrate's action. This he presented to the common pleas court prior to the preliminary hearing and received a court order returnable the afternoon of the preliminary hearing. The officer was, therefore, taken from the magistrate's hearing to the court's hearing. He had not entered bail, and was thus in custody. The court heard witnesses on the petition for the writ of habeas corpus, and before the afternoon had passed there appeared at the hearing two assistant district attorneys representing Pascuzzo against the police officer, private counsel for Pascuzzo, counsel for the defendant, the solicitor for the Board of Magistrates, and the counsel for the police commissioner. At the request of an assistant district attorney the court did not immediately dispose of the writ, but placed the relator in the custody of his lawyer and then at a later date dismissed the writ but discharged the officer.

The district attorney has appealed the order discharging the police officer. He contends that the court had no authority to discharge the defendant after having dismissed the writ. The writ, as the court ...

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