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COMMONWEALTH v. CORTES. (12/28/56)

December 28, 1956

COMMONWEALTH, APPELLANT,
v.
CORTES.



Appeals, Nos. 150 and 151, April T., 1956, from orders of Court of Quarter Sessions of Peace of Allegheny County, Oct. T., 1955, Nos. 474 and 475, in cases of Commonwealth of Pennsylvania v. R. J. Cortes; Same v. George B. McCormick et al. Order in each case reversed.

COUNSEL

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellant.

C. Bryson Schreiner for defendant, appellee.

Louis D. Cooper, with him Cooper, Hunter & Lewis, for defendant, appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Hirt

[ 182 Pa. Super. Page 603]

OPINION BY HIRT, J.

These defendants on an information sworn to by a State Bituminous Mine Inspector were charged with

[ 182 Pa. Super. Page 604]

    violations of Article IX, § 10 of the Act of June 9, 1911, P.L. 756, 52 PS § 1021. This section of the Bituminous Mining Law of Pennsylvania provides: "If any person shall construct, or cause to be constructed or used, ... any sewer or other method of drainage from any building or dwelling-house, for the carrying of sewage, offal, refuse or other offensive matter, into any operating mine, or any entry way, passage, or room in any mine ... such person shall be guilty of a misdemeanor ..." and shall be subject to fine and imprisonment upon conviction.

On motions of these defendants the indictments were quashed on the ground, as alleged, that in each instance the indictment was "founded upon an information which does not charge an indictable offense." In other respects the validity of the indictments are not questioned. These are the Commonwealth's appeals from the orders.

In material respects the information upon which Bill 151 was based, charged that the defendants: "... between May 1, 195k and May 30, 1955 defendants did unlawfully construct or cause to be constructed a sewage system by drilling a hole in the surface of the earth down to the Pittsburgh Vein of coal. The Pittsburgh Vein of coal at this location is being actively worked at the present time by the Montour #4 Mine of the Pittsburgh Consolidated Coal Company. This sewage system was so constructed as to carry sewage from the homes or dwellings of the Broadlawn Highlands Plan of lots to the excavations of the mine below, all of ...


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