Commonwealth v. Cassell , 1 Pa. Super. 476 ( 1896 )

Opinión by

Orbady, J.,

This i? an appeal by the commonwealth without special allowance of the writ by the Superior Court, and it is contended by appellee that the appeal should be quashed.

It is clearly held that in cases of nuisance, forcible entry and detainer, the commonwealth, as well as the defendant, is clothed with right to except to decisions of the trial court; but that grant takes away no power, as respects other cases. Since the. act of 1860 it has been decided that the powers of this court are competent to the review of any judicial record, when no statutory restraints have been imposed, and that the district attorney may take out a writ of error or certiorari without special allowance: Commonwealth v. Capp, 48 Pa. 53. In the conduct of criminal eases, the district attorney in each county is vested iwith all the powers which formerly belonged to the deputy attorney general: Gilroy v. Commonwealth, 105 Pa. 484. For error in quashing an indictment, arresting judgment after verdict of guilty, and the like, the commonwealth may remove the record for review without special allowance of the proper writ: Commonwealth v. Wallace, 114 Pa. 405.

This appeal is prosecuted in' the name of the commonwealth by the district attorney of Dauphin county, and the practice is the same in this court as in the Supreme Court.

The motion to quash the appeal is overruled and the appeal considered as properly taken.

It is agreed by counsel that the only question in the case was one of fact. “Did the commonwealth sufficiently prove that Mr. Cassell’s house was beyond the building line of Market street between Sixteenth and Seventeenth streets?”

The defendant offered no testimony. The burden was upon the commonwealth to satisfy the jury beyond a reasonable doubt that the defendant’s house encroached on Market street.

The trial judge fairly submitted all the evidence adduced by the commonwealth to the jury, and it was not error to call their attention to the uncertainty in the proof adduced in regard to the side lines of Market street, and the location of the defendant’s building on the line of a street that had not in fact been laid out or its width determined between Sixteenth and Seventeenth streets.

The assignments of error are overruled, the judgment is affirmed and record remitted.