85 Pa. Super. 238 | Pa. Super. Ct. | 1924
Argued December 8, 1924. The order entered in this anomalous proceeding was doubtless made through some inadvertence; it cannot be sustained. At May term, 1923, in the Quarter Sessions of Philadelphia County, Hinsdale, the appellee, was indicted on a charge of bribing a member of the Pennsylvania state police, by paying him $2,000 to liberate eight prisoners then in his custody, arrested for alleged unlawful possession and transportation of intoxicating liquor; at January term, 1924, Hinsdale was tried on the charge of bribery based on that payment and was acquitted. In May, 1924, he instituted the proceeding which culminated in the order which the Commonwealth has now brought here for review. It was begun by his petition filed in, and intended to be made part of the record of the prosecution for bribery. The petition will be found in the reporter's statement of the case.
He desires to recover back the money paid to the policeman, and avers that it was paid "as and for the security for the appearance of several drivers arrested on a charge of transporting liquor." He prayed for an order directing the policeman and the district attorney of *243 Philadelphia County and his assistants and agents, to refund the money. A rule on O'Boyle, the policeman, and the district attorney was granted, to show cause why they, and each of them, should not refund the money to petitioner, on the ground that the prosecution for bribery had terminated in a verdict of not guilty. A copy of the rule will also be found in the reporter's statement. Neither the petition nor the rule was served on O'Boyle, nor did he appear or answer. An answer was filed on behalf of the district attorney and his assistants, denying that they or any of them, had ever had possession of the money. No evidence was taken in support of either petition or answer, but the following order was made thereon: "It is ordered and decreed that the petition of the petitioner, George Hinsdale, is granted and the rule allowed on Thomas J. O'Boyle, Lieutenant of State Police, is made absolute, and it is hereby ordered that the Commonwealth or the officers thereof in whose possession the two thousand ($2,000) dollars is held, return the same to the said George Hinsdale."
The order must be reversed for any of a number of reasons, to some of which we shall refer. It will be observed that the order is against the "Commonwealth or the officers thereof in whose possession the two thousand ($2,000) dollars is held." Neither was made respondent or was brought in, so that, passing the fatally indefinite character of the order, it falls for want of jurisdiction of the parties ordered to pay. The portion of the order making absolute "the rule allowed on Thomas J. O'Boyle, Lieutenant of State Police," is bad for the same reason; O'Boyle had no notice of the proceeding and did not appear, and is not within the category of the "Commonwealth or the officers thereof."
Appellee's brief contends that as the court may order restitution of stolen goods or embezzled money, the court has power to order the repayment of $2,000, because in the bribery trial O'Boyle testified that he had *244
received that sum from Hinsdale. While the fact that he so testified is not before us, the power of the court to order restitution in cases of stolen goods or misappropriated money, depends on statute (Act of March 31, 1860, section 179, P.L. 382, 425; Huntzinger v. Com.,
Taking Hinsdale's version of the transaction (and he cannot complain if we take him at his word) that he made the payment "for the security for the appearance of several drivers arrested on a charge of transporting liquor," he encounters other obstacles. Unless the power to admit to bail in criminal proceedings is inherent in the judicial office, or is expressly authorized by statute it does not exist: Keller v. Com., 2 Mona. 757; 6 C.J., p. 971, etc., 979, 982, etc.; 3 R.C.L. pp. 22, etc. If he paid the money for the purpose stated in the petition, or as he contends in his brief, as "cash bail for the release of a prisoner," the petitioner attempted to make a contract with a lieutenant of police, which is not only beyond the power of the policeman to make, but is against public policy as well: Keller v. Com., supra; Koons v. Seward, 8 W. 388, 389. At the time of the arrest of the alleged transporters of intoxicating liquor, the duties of the state police were specified in the Act of June 3, 1919, P.L. 366, section 10; and while they then had, and still have, the powers of policemen of cities of the first class, (Act of June 7, 1923, P.L. 498, 545) this lieutenant was unauthorized to make the contract alleged; moreover, the contract seems to have been in parol, and a parol recognizance is not valid in the absence of a statute authorizing it: 6 C.J., p. 901; and it nowhere appears that petitioner caused the appearance of the parties for whom he contends he had become surety.
The judgment is reversed. *245