Appeal, No. 223, April T., 1962, from order of Court of Quarter Sessions of Allegheny County, April T., 1962, No. 18, in case of Commonwealth of Pennsylvania v. One 1959 Chevrolet Impala Coupe (James Thomas). Order affirmed.
Lewis J. Nescott, Special Assistant Attorney General, with him George G. Lindsay, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Pennsylvania Liquor Control Board, appellant.
No argument was made nor brief submitted for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 201 Pa. Super. Page 147]
This is an appeal by the Pennsylvania Liquor Control Board from an order of the court below denying the board's petition for the forfeiture of a 1959 Chevrolet Impala coupe.
On March 3, 1962 an officer of the Pennsylvania Liquor Control Board and policemen of the City of Pittsburgh apprehended James Thomas in his automobile, a 1959 Chevrolet Impala coupe. In the automobile were three glass containers, two of them being a gallon in size and the other one-half gallon. In all these containers there was a total of one-half gallon of moonshine liquor which James Thomas claimed he bought somewhere on Wylie Avenue in Pittsburgh and was taking to his home for a party. In addition, two and one-half gallons of moonshine were found in the cellar of his home. The automobile and the liquor were impounded. Thomas pleaded guilty to two indictments, upon one of which the court sentenced him to pay a fine of $100.00 and sentence was suspended on the other. At the conclusion of the hearing for the forfeiture of the automobile, the court below imposed a sentence of a $400.00 fine on the indictment upon which sentence had been suspended. Both indictments arose out of the transaction which occurred on March 3, 1962.
The attorney for the board now argues that the court below abused its discretion in refusing the forfeiture of the automobile.
A review of the provisions of the Liquor Code which are applicable to forfeiture of a vehicle is set forth in an opinion prepared by Judge WRIGHT of this Court in Com. v. One 1958 Oldsmobile Sedan, 194 Pa. Superior Ct. 352, 355, 356, 168 A.2d 776, as follows: "It becomes necessary to briefly review the applicable provisions of the Liquor Code. [Act of April 12, 1951, P.L. 90, Sections 601-603, as amended by the Act of April 20, 1956, P.L. (1955-56) 1508, 47 P.S. 6-601-603.] As
[ 201 Pa. Super. Page 148]
here pertinent, Section 601 provides that 'No property rights shall exist in any... vehicle... used in the... illegal transportation of liquor... and the same shall be deemed contraband and proceedings for its forfeiture to the Commonwealth may, at the discretion of the board, be instituted in the manner hereinafter provided'. Subsections (a) to (d) of Section 602 set forth the method of instituting forfeiture proceedings and bringing the same to issue. The first paragraph of subsection (e) provides that 'At the time of said hearing, if the Commonwealth shall produce evidence that the property in question was unlawfully possessed or used, the burden shall be upon the claimant to show (1) that he is the owner of said property, (2) that he lawfully acquired the same, and (3) that it was not unlawfully used or possessed'. Of particular significance in the present case is the second paragraph of subsection (e), the wording of which was radically changed by the 1956 amendment. In the Act of 1951 the language continues 'but if it appears that the property was unlawfully possessed or used, the court shall order it destroyed, delivered to a hospital, or turned over to the board, as hereinafter provided'. However, the 195l amendment to the second paragraph of subsection (e) effects a distinction between equipment and vehicles. In the case of 'still, equipment, material or utensil' unlawfully possessed or used, the amendment provides that the court shall order the same destroyed, delivered to a hospital or turned over to the board, as ...