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COMMONWEALTH v. KATZ. (03/17/64)

March 17, 1964

COMMONWEALTH, APPELLANT,
v.
KATZ.



Appeals, Nos. 225 and 226, April T., 1963, from judgment of Court of Quarter Sessions of the Peace of Allegheny County, June T., 1962, Nos. 395 and 396, in case of Commonwealth of Pennsylvania v. Gilbert Katz. New trial granted on appeal from finding of not guilty on nuisance charge; appeals by Commonwealth as to other charges dismissed; reargument refused April 7, 1964.

COUNSEL

William Claney Smith, Assistant District Attorney with him Edward C. Boyle, District Attorney, for Commonwealth, appellant.

Henry Mustin, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 202 Pa. Super. Page 630]

OPINION BY WOODSIDE, J.

This is an appeal by the Commonwealth from a finding of not guilty entered by the Court of Quarter Sessions of Allegheny County after a trial without a jury. Ordinarily the Commonwealth cannot appeal from a finding of not guilty, but there are exceptions. Commonwealth v. Obenreder, 144 Pa. Superior Ct. 253, 19 A.2d 497 (1941); Commonwealth v. Kerr, 150 Pa. Superior Ct. 598, 29 A.2d 340 (1942).

The Act of May 19, 1874, P.L. 219, § 1, 19 P.S. § 1188, provides, inter alia, "... in cases charging the offence of nuisance or forcible entry and detainer, or forcible detainer, exceptions to any decision or ruling of the court may also be taken by the Commonwealth, and writs of error and certiorari, as hereinbefore provided,

[ 202 Pa. Super. Page 631]

    may be issued from the supreme court*fn1 to all criminal courts, ..."

The Act of June 24, 1939, P.L. 872, section 601, 18 P.S. 4601, provides as follows: "All lotteries, whether public or private, for monies, goods, wares or merchandise, chattels, lands, tenements, hereditaments, or other matters or things whatsoever, are hereby declared to be common nuisances ...." (Emphasis supplied)

The defendant was indicted for conspiracy and also for being "concerned in divers ways and manners in the managing, conducting and carrying on of a certain common nuisance, to wit, a certain lottery for money, goods, wares, merchandise, chattels, lands, tenements, hereditaments, and certain other matters and things, contrary to the form of the Act of the General Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania." (Emphasis supplied)

The defendant was tried before the court without a jury on all charges. Prior to the trial on the merits, the defendant made a motion to suppress certain evidence on the ground that it was obtained by an unlawful search and seizure. There was no preliminary decision on this motion, and at the trial the evidence was admitted subject to objections. Some months later after a lengthy opinion on the question of search and seizure, the trial judge ruled that the challenged evidence was inadmissible, and found the ...


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