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COMMONWEALTH EX REL. NICHOLS v. LEDERER. (11/16/60)

November 16, 1960

COMMONWEALTH EX REL. NICHOLS, APPELLANT,
v.
LEDERER.



Appeal, No. 118, Oct. T., 1960, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1959, No. 2831, in case of Commonwealth ex rel. D. Ward Nichols v. Francis Lederer, Philadelphia County Detectives. Appeal quashed; reargument refused December 19, 1960.

COUNSEL

Samuel Dash, with him Dash & Levy, for appellant.

Thomas M. Reed, Assistant District Attorney, with him Charles L. Durham and Domenick Vitullo, Assistant District Attorneys, and Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 193 Pa. Super. Page 484]

OPINION BY MONTGOMERY, J.

This appeal from the dismissal of a petition for a writ of habeas corpus involves two main questions: (a) the right of appeal and (b) the legality of 42 indictments on which appellant claims he is being illegally detained.

Appellant is a Bishop in the African Methodist Episcopal Church, in which capacity he is charged in the indictments with having misappropriated funds. They charge various crimes, viz., embezzlement by officer of corporation, embezzlement by trustee, embezzlement by agent, and fraudulent conversion.

The indictments were returned by the grand jury on bills presented to it by the District Attorney under an order of the Quarter Sessions Court (Hon. CURTIS BOK, Judge, now Justice of the Pennsylvania Supreme Court.). The order was based on a petition of the District Attorney which alleged that the defendant was a fugitive. The petition was supported by the affidavit of C. Millbourne Smith, Pastor of the Ruffin Nichols Memorial Church of the African Methodist Episcopal Church, stating that a warrant for the arrest of appellant had been issued by Magistrate Harry J. Ellick of Magistrate's Court No. 20 of Philadelphia but could not be served because on or about May 1, 1956, the appellant had fled from the Commonwealth and was then a fugitive.

Appellant's petition for a writ of habeas corpus complains of his illegal detention by the Detectives of

[ 193 Pa. Super. Page 485]

Philadelphia County under the indictments aforesaid. The indictments are likewise alleged to be illegal and void because they violated the due process clauses of the United States and Pennsylvania Constitutions, as well as the laws of Pennsylvania, having been returned without appellant-relator being afforded a preliminary hearing at which he could be present and heard. They are alleged to be illegal for the further reason that the procedures for the use of "District Attorney Bills" with leave of court were not applicable under the circumstances of this case.

The answer of the District Attorney denied that the relator was either in custody or illegally detained, denied that he was not afforded a preliminary hearing, and averred that ...


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