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COMMONWEALTH v. TAUB (09/11/58)

September 11, 1958

COMMONWEALTH
v.
TAUB, APPELLANT.



Appeal, No. 195, April T., 1957, from order of Court of Quarter Sessions of Westmoreland County, Oct. T., 1957, No. 143, in case of Commonwealth of Pennsylvania v. Buddy Taub. Order affirmed, as modified.

COUNSEL

Jerome B. Lieber, with him S. Leo Ruslander, Daniel J. Snyder, Jr., and Ruslander, Ruslander & Lieber, for appellant.

John K. Best, First Assistant District Attorney, and Earl S. Keim, District Attorney, submitted a brief for appellee.

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

Author: Rhodes

[ 187 Pa. Super. Page 441]

OPINION BY RHODES, P.J.

This is an appeal by defendant in a surety of the peace proceeding heard in the Court of Quarter Sessions of Westmoreland County. Defendant was adjudged guilty.

The prosecution was under the Act of March 31, 1860, P.L. 427, § 6, 19 PS § 23, which provides: "If any person shall threaten the person of another to wound, kill or destroy him, or do him any harm in person or estate, and the person threatened shall appear before a justice of the peace, and attest, on oath or affirmation, that he believes that by such threatening he is in danger of being hurt in body or estate, such person so threatening as aforesaid shall be bound over, with one sufficient surety, to appear at the next sessions, according to law, and in the meantime to be of his good behavior, and keep the peace towards all citizens of this commonwealth. ..."*fn1

The present prosecution was instituted on information before a justice of the peace of Westmoreland County by J. H. Millstein, and defendant was arrested

[ 187 Pa. Super. Page 442]

    in Pittsburgh, Allegheny County. He was charged with threatening to take the life of J. H. Millstein and putting the latter in fear. The threats were made by defendant over the long distance telephone from Pittsburgh to Millstein, at Jeannette, Westmoreland County, on June 27, 1957. A preliminary hearing was held before the justice of the peace in Westmoreland County, and defendant was held for the Court of Quarter Sessions of Westmoreland County.

At the hearing in the court below defendant questioned the jurisdiction of the court, alleging that if any offense had been committed it was not committed in Westmoreland County but in the County of Allegheny. His motions to dismiss for want of an indictment and for the refusal of a jury trial were also overruled.

The court below, after hearing, adjudged defendant guilty and directed that he pay the costs of prosecution and enter bond in the sum of $25,000 to keep the peace towards all mankind and especially towards J. H. Millstein. Pending disposition of the appeal this Court reduced the bond to $2,000.

Neither the sufficiency of the threats nor the procedure before the justice of the peace is questioned on this appeal.

However, defendant contends that the action of the court below must be reversed, and reiterates the reasons: (1) He was not indicted by a grand jury; (2) he was not afforded a jury trial; and (3) the Court of Quarter Sessions of Westmoreland County did not have jurisdiction.

We find no merit in the argument that an indictment by a grand jury was a prerequisite and essential to due process. The offense of surety of the peace has never been an indictable offense. The purpose of the statutory enactments has been to prevent the commission

[ 187 Pa. Super. Page 443]

    of a more serious crime. To accomplish this objective, time is of the essence in processing the action, The Act of March 31, 1860, P.L. 427, § 32, 17 PS § 361, relating to the jurisdiction of courts of quarter sessions contains the following provision: "IV. To continue, or discharge the recognizance and obligations of persons bound to keep the peace, or to be of good behavior, taken as aforesaid, or certified into such court by any justice of the peace of such county, and to inquire of, hear and determine, in the manner hitherto practiced and allowed, all complaints which shall be found thereon."

The Act of April 27, 1909, P.L. 260, § 1, 19 PS § 27, prescribes the expeditious procedure to be followed: "Where a magistrate, alderman, or justice of the peace hearing any surety of the peace or desertion case shall determine to return the same to the court of quarter sessions, such return, instead of being made to the next court of quarter sessions, shall be filed immediately with the clerk of said court; and the judge or judges of the said court of quarter sessions may, whenever the said court is in session, and it is convenient, dispose of the said complaint."

The Act of March 18, 1909, P.L. 42, §§ 1-3, 19 PS §§ 24-26, relates to the hearing to be held by a justice of the peace before whom such case is instituted and the findings required prior to ...


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