Appeals, Nos. 133 and 134, April T., 1959, from order of Court of Oyer and Terminer of Allegheny County, Sept. T., 1958, Nos. 633 and 634, in case of Commonwealth of Pennsylvania v. Lewis W. Cody. Order affirmed.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellant.
Allen N. Brunwasser, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 191 Pa. Super. Page 356]
These are appeals by the Commonwealth from the order of the court below quashing two bills of indictment charging the defendant, Lewis W. Cody, with false pretense, under section 836 of The Penal Code of 1939, as amended, 18 P.S. section 4836.
The informations upon which these indictments were based were filed on June 11, 1958 before a Justice of the Peace who issued warrants for defendant's arrest. One information alleged that on or about April 3, 1956, defendant unlawfully pretended that certain funds were available to him for the repayment of a loan which, in fact, was not available. The other information charged that the false pretense occurred on July 18, 1956. On July 5, 1958, the constable made returns on warrants that the defendant could not be apprehended because he moved and no other address was available. No preliminary hearings were had on these informations and on September 16, 1958, these informations were submitted to the grand jury, without leave of court. The same day, true bills were returned. On September 16, 1958, counsel for defendant filed a petition to quash these indictments alleging, among others, that the indictments had been returned more than two years after the dates of the offenses as set forth in the indictments and that the indictments were obtained without preliminary hearing, although the prosecutor was informed of the defendant's willingness to appear wherever necessary.
[ 191 Pa. Super. Page 357]
After hearing, the court below quashed the indictments on the ground that the face of the indictments clearly disclosed that the prosecution was brought after the two year limitation as provided by the Act of March 31, 1860, as amended by the Act of April 6, 1939, P.L. 17, section 1, 19 P.S. section 211, and that the indictments failed to allege that the defendant had not been an inhabitant or usual resident of this State at any time before he was indicted. From such adjudication, the Commonwealth has taken this appeal.
Two questions are raised by this appeal for our determination: (1) Assuming that the defendant is not an inhabitant of, or usual resident within this State, where there is no preliminary hearing, may an indictment be submitted to the grand jury without leave of court, and (2) Should the indictment itself state the exception relied on by the Commonwealth in bringing the prosecution beyond the limitation as set forth in the Act of March 31, 1860, as amended?
The Commonwealth concedes that no preliminary hearings were held on the informations filed. The transcript of the Justice of the Peace disclosed merely that the defendant was not arrested and that the constable's return showed the warrants as not served because defendant could not be apprehended. No testimony of any kind was offered and there was no valid binding over for court. Under these circumstances, we have held that a district attorney has no authority to send to a grand jury bills of indictment unless he first obtains leave of court to do so. Commonwealth v. O'Brien, 181 Pa. Superior Ct. 382, 124 A.2d 666; Commonwealth v. Wilson, 134 Pa. Superior Ct. 222, 227, 4 A.2d 324. While in the O'Brien case, supra, we have stated that the discretion of ...