Opinion by
Rice, P. J.,
The case of Guffy v. Commonwealth, 2 Grant, 66" court="Pa." date_filed="1853-12-15" href="https://app.midpage.ai/document/guffy-v-commonwealth-6315175?utm_source=webapp" opinion_id="6315175">2 Grant, 66, came before the Supreme Court on writ of error to the court of quarter sessions, and brought up for review an order setting aside the verdict of a jury on an indictment charging a misdemeanor, so far as the imposition of the costs upon the prosecutor was concerned. The order was affirmed by a bare majority; but the decision has not been questioned in any later Supreme Court case, and it has been generally followed by the lower courts. See 4 P. & L. Dig. of Dec. col. 6092, and the cases there cited. The point actually decided was, that the statutes authorizing the jury in cases of acquittal, to determine by their verdict, whether the prosecutor, the county, or the defendant shall pay the costs, do not take away the common-law supervisory power of the courts which belongs to trial by jury; hence the court has power to set aside that part of a verdict of ac*603quittal which imposes the costs on the prosecutor. The question of the power to set aside the finding of a grand jury imposing the costs on the prosecutor was not before the court and was not decided, but the reasoning of the decision applies equally well to one case as to the other; and so it has been generally held. But in .the same case Lewis, J., who spoke for the majority of the court, said: “ The court had a discretionary power over the subject, and it is clear that matters within the discretion of the court below are not the subject of review here.” In Commonwealth v. Doyle, 16 Pa. Super. 171" court="Pa. Super. Ct." date_filed="1901-01-22" href="https://app.midpage.ai/document/commonwealth-v-doyle-6273226?utm_source=webapp" opinion_id="6273226">16 Pa. Superior Ct. 171, we held that the court had power to set aside a verdict imposing the costs upon a person not named on the indictment as prosecutor, and reversed the quarter sessions because it appeared in the order refusing his application to be relieved from the costs, that the court assumed that, as the application was not made until several terms had elapsed after the rendition of the verdict, it had not power to grant him relief. There was enough in the record proper to show affirmatively that the court, acting upon an erroneous assumption as to its power, had not exercised the discretion vested in it. Accordingly we sent the case back for a hearing, our Brother Orlady, who delivered the opinion of the court, saying: “ After a hearing the court below has discretionary power over the subject and its decision is not reviewable here. ” The power being discretionary, the finality of the decision does not depend upon its absolute correctness.
It is urged with great earnestness that this case is not within the rule above stated for two reasons: first, because the grand jury had not a power under the criminal procedure act to impose costs upon James Terry, and, therefore, the sentence was illegal; second, because, under the special circumstances of the case, the refusal to set aside that, part of the return was an abuse of discretion. Assuming that in either ease we would have authority to reverse the action of the court below, it is too well settled to require the citation of authority that in determining the question we cannot go outside the record. The affidavits filed when the motion was made did not bring the fact therein alleged upon the record. Leaving them out of view, as we must, all that the record shows is, that the information upon which the warrant issued was made by James Terry, *604who was described therein as “ a special agent of the department of agriculture of the commonwealth of Pennsylvania, that the indictment was returned, “ Ignoramus, prosecutor James Terry to pay costs; ” that on October 1, 1901, he petitioned the court to resubmit the indictment to the grand jury, and that the court (we quote from the petition), “if it be deemed meet and proper in the premises, instruct the said grand jury regarding its duty in the premises in order that proper returns may be made and justice be done in this matter; and such other and further relief as the court may deem proper in view of the facts set forth in this petition; ” and that on October 28, 1901, the court refused the petition. Whatever may be the nature of the power over costs vested in the court of quarter sessions, it is clear that no one can invoke its exercise but the person upon whom the costs have been imposed by the finding of the grand jury or the verdict of the petit jury, unless, possibly, it be the district attorney; and as to that we are not called upon to express an opinion. Hence, it is unnecessary to allude to the subsequent petition filed by Mr. Cope. Turning then to the petition of the appellant it will be observed that his specific prayer was for a resubmission of the indictment to the grand jury. Further, it does not appear in the record that the district attorney joined in the application. It is too plain for argument that the refusal of this specific prayer is not assignable for error, even if it be conceded, that the court has discretionary power to make such order in rare and exceptional cases.
Treating the concluding prayer of the petition as including a motion to set aside the return of the grand jury as to costs, the difficulty remains, that there is absolutely nothing in the, record proper to impeach their finding that James Terry was the prosecutor, or to show affirmatively that they transcended the power vested in them by the criminal procedure act in imposing the costs upon him, or to rebut the presumption that the court did its duty and properly exercised the discretion vested in it. It may be that the action of the grand jury was grossly erroneous, but that it was absolutely illegal cannot be affirmed without going outside the record. The same is true of the contention that the refusal to set aside their finding was an abuse of discretion. We therefore shall not enter into a *605discussion of the question which would be raised, if the facts alleged in the affidavits filed by the appellant were upon the record.
Finding no error in the record proper, all the assignments of error are overruled and the judgment is affirmed.