41 Pa. Super. 29 | Pa. Super. Ct. | 1909
Opinion by
The nuisance charged in the indictment was the erection and maintenance of an embankment across a public highway commonly called Elm street, formerly First street, about ten feet in height above the level of the street, upon which embankment was laid the track of the defendant company. It appears in the evidence that prior to the erection of this embankment the company carried its track across the street upon trestlework, space being left between the bents for travel along the street. The embankment was erected in order to avoid rebuilding the trestlework, and at the time of the defendant’s conviction completely shut off travel along the street at that point.
It is claimed that this so-called amendment was illegal because the term at which the original sentence was pronounced had expired, and it is not seriously contended that this would not be a fatal objection if the fact be as stated: Commonwealth v. Mayloy, 57 Pa. 291; Commonwealth ex rel. Nuber v. Keeper of Workhouse, 6 Pa. Superior Ct. 420. But while we are informed by counsel that the four terms of quarter sessions of Warren county, as fixed by law and rule of court, begin on certain Mondays of March, June, September and December, we are not furnished with a copy of the order of court fixing its terms and therefore are not informed as to their length. We therefore pass this objection. The power of the court to reconsider and alter its sentence, and even increase the punishment, during the term at which it was pronounced, if nothing has been done under it, is recognized generally in this country. While in some cases outside this commonwealth it has been held that steps taken under a sentence — for example, a substantial part execution thereof — cuts off the right, we are not
We have already answered, substantially, the contention that if it should be concluded that there was error on the part of the court in passing sentence this court now has opportunity to pass such sentence as the court below ought to have passed and to remit the record for further proceeding. The original sentence is not before us for correction, and certainly it cannot be contended that we may correct the amendment by substituting a sentence compelling the defendant to undo what it was compelled to do by the original sentence. The third assignment of error is sustained and the order of November 7, 1908, is reversed and set aside.