fifth assignment error in Pennsylvania

1977The fifth assignment of error, concerning the trial judge’s refusal to permit the introduction into evidence of medical opinions contained in a hospital record, is without merit for the reasons expressed in Commonwealth v. Digiacomo, 463 Pa. 449 , 345 A.2d 605 (1975).

1977The fifth assignment of error, concerning the trial judge’s refusal to permit the introduction into evidence of medical opinions contained in a hospital record, is without merit for the reasons expressed in Commonwealth v. Digiacomo, 463 Pa. 449 , 345 A.2d 605 (1975).

1977See also Commonwealth v. Mobley, 450 Pa. 431 , 301 A.2d 622 (1973); Fauceglia v. Harry, 409 Pa. 155 , 185 A.2d 598 (1962); Lane v. Samuels, 350 Pa. 446, 450-451 , 39 A.2d 626, 628 (1944); Paxos v. Jarka Corp., 314 Pa. 148, 155 , 171 A. 468, 471 (1934).

1977See also Commonwealth v. Mobley, 450 Pa. 431 , 301 A.2d 622 (1973); Fauceglia v. Harry, 409 Pa. 155 , 185 A.2d 598 (1962); Lane v. Samuels, 350 Pa. 446, 450-451 , 39 A.2d 626, 628 (1944); Paxos v. Jarka Corp., 314 Pa. 148, 155 , 171 A. 468, 471 (1934).

1947In Zavodnick v. Rose & Son, 297 Pa. 86, 90 , 146 A. 455 , it was said: “True, plaintiff was permitted to cross-examine the driver as an adverse witness, and then to offer proof that he had made statements at the coroner’s inquest tending to show that the deceased was permitted to ride because a customer.

1937After the court had affirmed this point, the District Attorney said: “I disagree with that last point,” and the court said: “Members of the jury, in this point the defendant uses the phrase, ‘He did not know the consequences of his crime.’ I take it that by that it is meant that he was unable to conceive the intent to kill; and, so construed, the point corresponds with the law, as Ave understand the laAV.” Defendant’s counsel then said: “As a matter of clarity, that point is in Commonwealth v. Nazarko [ 224 Pa. 204 , 73 A. 210 ].” The court then said: “I think the point should be affirmed in t

1937After the court had affirmed this point, the District Attorney said: “I disagree with that last point,” and the court said: “Members of the jury, in this point the defendant uses the phrase, ‘He did not know the consequences of his crime.’ I take it that by that it is meant that he was unable to conceive the intent to kill; and, so construed, the point corresponds with the law, as Ave understand the laAV.” Defendant’s counsel then said: “As a matter of clarity, that point is in Commonwealth v. Nazarko [ 224 Pa. 204 , 73 A. 210 ].” The court then said: “I think the point should be affirmed in t

1935The question of the propriety of its admission in rebuttal, rested in the sound discretion of the court: Holthouse v. Rynd, 155 Pa. 43 , 25 A. 760 .

1935The question of the propriety of its admission in rebuttal, rested in the sound discretion of the court: Holthouse v. Rynd, 155 Pa. 43 , 25 A. 760 .

1934The fifth assignment of error complains of the refusal of the court to affirm the following point: “(1) While the law permits a conviction on the testimony of a confessed accomplice, yet it looks with disfavor on this character of proof, and because the source of such evidence is corrupt, it is usual and correct practice to admonish the jurors not to rely upon it unless corroborated.” As stated, it is a correct proposition of law, as it is in the exact language of former Chief Justice Yon Moschziskeb in Com. v. Elliot, supra, at page 23, citing as authority Kilrow v. Com., 89 Pa. 480, 488 , an

1934The fifth assignment of error complains of the refusal of the court to affirm the following point: “(1) While the law permits a conviction on the testimony of a confessed accomplice, yet it looks with disfavor on this character of proof, and because the source of such evidence is corrupt, it is usual and correct practice to admonish the jurors not to rely upon it unless corroborated.” As stated, it is a correct proposition of law, as it is in the exact language of former Chief Justice Yon Moschziskeb in Com. v. Elliot, supra, at page 23, citing as authority Kilrow v. Com., 89 Pa. 480, 488 , an

1934The fifth assignment of error complains of the refusal of the court to affirm the following point: “(1) While the law permits a conviction on the testimony of a confessed accomplice, yet it looks with disfavor on this character of proof, and because the source of such evidence is corrupt, it is usual and correct practice to admonish the jurors not to rely upon it unless corroborated.” As stated, it is a correct proposition of law, as it is in the exact language of former Chief Justice Yon Moschziskeb in Com. v. Elliot, supra, at page 23, citing as authority Kilrow v. Com., 89 Pa. 480, 488 , an

1934It is well settled that questions not raised in the court below will not, as a rule, be considered on appeal, and this rule applies even to constitutional questions: Com. v. Cauffiel, 298 Pa. 319 , 148 A. 311 . (2) The second complaint, based on the fifth assignment of error, complains that the official court stenographer was permitted, over defendant’s objection, to read into the evidence a portion of ,the notes of testimony of the previous trial of the defendant on the charge of corrupt solicitation and bribery, wherein the defendant testified on cross-examination that immediately before the

1934It is well settled that questions not raised in the court below will not, as a rule, be considered on appeal, and this rule applies even to constitutional questions: Com. v. Cauffiel, 298 Pa. 319 , 148 A. 311 . (2) The second complaint, based on the fifth assignment of error, complains that the official court stenographer was permitted, over defendant’s objection, to read into the evidence a portion of ,the notes of testimony of the previous trial of the defendant on the charge of corrupt solicitation and bribery, wherein the defendant testified on cross-examination that immediately before the

1932It is true that where a judgment is opened generally the record of the entry of judgment is not admissible: Harris v. Harris, 154 Pa. 501 .

1927In the absence of knowledge that people ever walked there and in view of the fact that defendant had notices, forbidding trespassing thereon, posted at the outer ends of the trestles, the motorman was not bound •to be on the watch for trespassers (Goudreau v. Connecticut Co., 84 Conn. 406 , 80 Atl. 281 ), yet the instruction complained of permitted the jury to find he was, and may have tended to discredit his denial of seeing the children in time to prevent the accident.

1927In the absence of knowledge that people ever walked there and in view of the fact that defendant had notices, forbidding trespassing thereon, posted at the outer ends of the trestles, the motorman was not bound •to be on the watch for trespassers (Goudreau v. Connecticut Co., 84 Conn. 406 , 80 Atl. 281 ), yet the instruction complained of permitted the jury to find he was, and may have tended to discredit his denial of seeing the children in time to prevent the accident.

1922Moreover, as the attention of the court was not called to it at the conclusion of the charge, the point is not properly before us, because only a general exception was taken, justifying review of only basic and fundamental error: Laughner v. Walley, 269 Pa. 5, 8 .

1911For the reasons above suggested, as well as others, the defendants were not entitled to binding instructions, and, therefore, the point requesting the same, as well as the motion for judgment non obstante, was correctly overruled: Dalmas v. Kemble, 215 Pa. 410 ; Hardoncourt v. North Penn Iron Co., 225 Pa. 379 ; Casey v. Canning, 39 Pa. Superior Ct. 94 .

1911For the reasons above suggested, as well as others, the defendants were not entitled to binding instructions, and, therefore, the point requesting the same, as well as the motion for judgment non obstante, was correctly overruled: Dalmas v. Kemble, 215 Pa. 410 ; Hardoncourt v. North Penn Iron Co., 225 Pa. 379 ; Casey v. Canning, 39 Pa. Superior Ct. 94 .

1911For the reasons above suggested, as well as others, the defendants were not entitled to binding instructions, and, therefore, the point requesting the same, as well as the motion for judgment non obstante, was correctly overruled: Dalmas v. Kemble, 215 Pa. 410 ; Hardoncourt v. North Penn Iron Co., 225 Pa. 379 ; Casey v. Canning, 39 Pa. Superior Ct. 94 .

1909In Com. v. Cate, 220 Pa. 138 , the Supreme Court, by Mr. Justice Elkin, said: “By the fifth assignment of error in the case at bar the appellant complains that the learned court below erred in charging the jury that 'where the jury is satisfied beyond a reasonable doubt of the defendant’s guilt under all the evidence, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.’ While this instruction might be understood by the legal mind as fairly within the rule above stated, it would be confusing to jurors and might lead them to disregard e

1904In connection with the other evidence in the case, evidence of the declarations of William Caldwell were admissible: Shirley v. Shirley, 59 Pa. 267 ; Wolf v. Studebaker, 65 Pa. 459 .

1904In connection with the other evidence in the case, evidence of the declarations of William Caldwell were admissible: Shirley v. Shirley, 59 Pa. 267 ; Wolf v. Studebaker, 65 Pa. 459 .

1904A case is here presented to which the language of Judge Gordon in Sower’s Admr. v. Weaver, supra, may be appropriately applied. “ What we have to consider is not whether the defendant had made out such a case as would entitle him to a decree of specific performance, for it seems to be pretty well settled in this state at least that equity will not enforce a contract the consideration of which is only natural love and affection, but whether he has shown enough to prevent the disturbance of his possession by the plaintiff’s legal title.” The fifth assignment of error is not sustained.

1904Water Co., 201 Pa. 252 . -The verdict is without sufficient proof to sustain it and we are obliged to sustain the fifth assignment of error, which is based on the defendant’s seventh point: “Under the law and the evidence in this case the verdict must be for the defendant.” The others are not considered.

1903As was said in Rockwell v. Langley, 19 Pa. 502 , which was a second action for a continuing nuisance, “ this action recites, and is founded upon the former judgment, and avers a continuance of the nuisance; and to this the plea is, not guilty, the only meaning of which here is, that the defendant has not continued the nuisance charged and found in the former action.” It follows that the'court committed no error in admitting the records of the former suits in evidence, or in the instructions complained of in the fifth assignment of error.

1902In Commonwealth v. Beary, 9 Pa. Superior Ct. 246 , relied upon by the judge below, there is nothing inconsistent with the views here expressed.

1897But, were the facts otherwise, the company and the city would be joint tort-feasors, and the default or wrong-doing of one would not enable the other to escape its liability to parties navigating the stream, as is pointed out in Philadelphia v. Collins, supra. The instruction asked for in defendant’s fourth point was substantially given in the general charge, hence the fifth assignment of error is untenable: Kroegher v. The McConway & Torley Co., 149 Pa. 444 .

1897But, were the facts otherwise, the company and the city would be joint tort-feasors, and the default or wrong-doing of one would not enable the other to escape its liability to parties navigating the stream, as is pointed out in Philadelphia v. Collins, supra. The instruction asked for in defendant’s fourth point was substantially given in the general charge, hence the fifth assignment of error is untenable: Kroegher v. The McConway & Torley Co., 149 Pa. 444 .

1882The seventh section of the general road law of June 13th 1836, P. L. 556, provides that “ the owner of any land through which a public road shall be opened as aforesaid, may, within one year from the opening of the same, apply by petition, to the Court of Quarter Sessions of the proper county, setting forth the injury which he or she may have sustained .thereby,- and thereupon, the said court shall appoint six disinterested persons to view the premises and assess the damages, if any, which such petitioner may have sustained.” It was distinctly ruled in Lewistown Road, 8 Barr 109, following the