Special certiorari, No. 303, Miscellaneous Docket No. 11, in the case of Commonwealth of Pennsylvania v. Maurice Hoffman et al. in the Court of Common Pleas of Carbon County, January T., 1959, No. 39. Record remanded for further proceedings. Special certiorari directing Honorable JAMES C. MCCREADY, as President Judge of the Court of Common Pleas of Carbon County, to transmit to the Supreme Court forthwith so much of the record in this case as pertains to the contempt proceedings instituted in connection therewith against Maurice Hoffman and Martin H. Philip, Esquire, as a result whereof Judge MCCREADY, sitting as a committing magistrate, bound Hoffman and Philip for action by the grand jury of Carbon County; and staying all related proceedings in Carbon County until further order of the Supreme Court.
Leon H. Kline, with him Joseph H. Foster, for petitioners.
Thomas C. Caldwell, with him Caldwell, Fox and Stoner, for respondent.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This matter is here on special certiorari. We issued the writ on petition of Maurice Hoffman and Martin H. Philip, Esquire. The petition sets forth that President Judge MCCREADY of the Court of Common Pleas of Carbon County, sitting as a committing magistrate, had issued warrants for the arrest of the petitioners for an alleged indirect contempt, had required bail of each of them in the sum of $500 to be posted forthwith on pain of immediate incarceration and had ordered the District Attorney to submit to the convening grand jury bills of indictment for the offense charged - all without a preliminary hearing which the accused demanded and were denied.
The background of the above related circumstances lay in prior court proceedings taken in connection with the Commonwealth's condemnation of a portion of a tract of land in Carbon County owned by Maurice
Hoffman and his wife for the improvement of Highway Route No. 29. To obtain possession of the condemned property the Commonwealth filed a petition in the court below for a writ of possession. At a hearing before Judge MCCREADY, on the Commonwealth's petition, the Hoffmans were represented by Martin H. Philip, Esquire. After argument, Judge MCCREADY issued a writ of habere facias possessionem on December 30, 1958, ordering the Sheriff of Carbon County to deliver to the Commonwealth possession of the condemned property of the Hoffmans. On the following day (December 31st), Mr. Philip, as attorney for the Hoffmans, took an appeal to this court from the order of the court below awarding the writ of possession.
On Friday, January 2, 1959, the Commonwealth attempted to remove from the condemned right of way the junk automobiles and other scrap which were the property of the Hoffmans. The words and actions of Maurice Hoffman and his attorney, Martin Philip, on that occasion, constitute the basis of the alleged contempt. In an affidavit taken and filed three months later (April 3, 1959), when the contempt proceeding was instituted on the petition of the Commonwealth, Fred J. Gossler, a right of way agent of the Department of Highways, deposed that he had asked Maurice Hoffman where he wanted the cars placed; that Hoffman, after displaying some legal papers, produced a rifle which he proceeded to load and then shouted to Gossler, "that he was in the service and had been taught how to use a rifle and if [Gossler] removed his cars he [Hoffman] would be arrested for murder before night time" adding that "whichever one of you men who gives the order to move the cars, I will shoot on the spot"; that the sheriff subsequently came to the premises and told Gossler to continue with the moving; that Philip, Hoffman's attorney, then appeared and said that he had
a two o'clock p.m. appointment with Judge MCCREADY; that he would institute proceedings for the arrest of Gossler if he moved any cars during his absence; that he "was having a warrant served for the sheriff's arrest and anyone else who interfered would get the same treatment"; and that Gossler was then ordered ...