85 Pa. Super. 198 | Pa. Super. Ct. | 1924
Argued December 8, 1924. Joseph Habib was arrested September 9, 1923, under the Act of March 27, 1923, P.L. 34, for unlawfully transporting intoxicating liquor. When arrested he was driving on Overland automobile which he had obtained June 29, 1923, from the Easton Overland Company under a bailment lease, which lease was forthwith assigned by the Easton Overland Company to the Motors Mortgage Corporation, appellant. The automobile was taken into custody by the police authorities of Easton and has remained in their possession. January 14, 1924, appellant filed in the court of quarter sessions a petition alleging that it was the lawful owner of the automobile by assignment of the above-mentioned lease; that it did not consent to, or know of, the use thereof for the transportation of intoxicating liquor; that the lease contained an express covenant against such use; and praying that the automobile be delivered to it. The court granted *200 a rule on the district attorney and the chief of police of the City of Easton to show cause why the automobile should not be returned to the petitioner. The district attorney and the chief of police filed an answer denying the material averments of the petition. Depositions were taken April 7, 1924, in which it satisfactorily appears that appellant is the owner of the automobile as averred in the petition. The Commonwealth proved that when Habib was arrested several quart bottles of liquor were found in the automobile which was being driven along a street in Easton. There was no evidence that the liquor was intoxicating. The depositions were filed forthwith in the court below. May 13, 1924, appellant filed a supplemental petition averring that Habib was tried and acquitted April 17, 1924, of the charge upon which he was arrested, and praying for an order directing the delivery of the car to it. No answer to this petition was filed, but June 2, 1924, the court filed an opinion in which it is stated that Habib was acquitted as averred in the supplemental petition. The rule to show cause was discharged and we have this appeal from that order.
The reason for the action of the court is stated in its opinion as follows: "In the present case the petition was either presented for the purpose of having the court exclude testimony concerning the taking of the liquor in the automobile, which practice was in vogue prior to the late decisions of the Superior Court in Com. v. Rubin,
Being of opinion that appellant was entitled to proceed as it did and to get a decision upon the case as made, we are constrained to reverse the order and remit the record with a procedendo.
TREXLER, J., dissents.