Appeal, No. 73, Jan. T., 1950, from judgment of Court of Oyer and Terminer of Columbia County, Dec. Sessions, 1947, No. 1, in case of Commonwealth of Pennsylvania v. Alex Agoston, Jr. Judgment affirmed.
John Arnold Crisman, with him Donald A. Lewis, for appellant.
Hervey B. Smith, Assistant District Attorney, with him Warren S. Sharpless, District Attorney, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. CHIEF JUSTICE MAXEY
This is an appeal from an order of the Court of Oyer and Terminer of Columbia County refusing defendant's motions for a new trial and in arrest of judgment. The defendant, Alex Agoston, Jr., aged 41 years, was convicted of murder in the first degree and the death penalty was imposed.
On December 17, 1947, defendant was taken into custody by the Pennsylvania State police for questioning in regard to the disappearance of Russell Balliet on December 9, 1947. On December 14th, Balliet's disappearance was reported to the police of Berwick by his brother. An investigation by the police revealed that Balliet had last been seen alive at about 11:30 P.M. on December 9, 1947, at which time he had left the Salem Inn with Agoston. Numerous witnesses testified that they had seen Balliet with Agoston from about 6:30 P.M. until 11:30 P.M., on December 9th.
Balliet was employed by James McElrath, who owned and operated a used car lot. On December 8th, McElrath
went out of town on a business trip leaving Balliet in charge of his business with authority to buy and sell cars. When McElrath returned from his trip on December 13th, he discovered that Balliet had withdrawn $1525 from McElrath's account at the bank, stating that he was buying a car for his employer. McElrath had agreed in the latter part of 1947 to purchase the defendant's car for $1525 but the sale was never consummated because the defendant did not have title to his car. McElrath then called on defendant to inquire whether or not Balliet had purchased his car. Defendant said that he had not sold his car to Balliet and denied any knowledge of the latter's whereabouts.
The foregoing and other circumstances caused the local and State police to suspect that the defendant could explain Balliet's disappearance. At 2:30 P.M. on December 17th, defendant was taken to the Council Room of the Berwick City Hall where he was questioned as to his whereabouts on the night of December 9th. This questioning continued for about three hours. Defendant denied any knowledge of Balliet's disappearance and also denied having been with him at any time on December 9th. Defendant was then taken to a restaurant for his evening meal. After the meal, the police drove him to his home where he picked up his car and drove it to the police station. He was again taken to the Council room where he was again interrogated until approximately 11:30 P.M., when he was placed in the detention room for the night. The next morning the officers made an examination of the defendant's automobile and they found that the front seat covers were new. These covers were removed and the police found bloodstains on the seat and a bullet hole on the back of the front seat on the side where the driver sits. It was apparent that the right windshield had been recently replaced.
At noon, on December 18th, the defendant was taken to lunch and then to the cellar of the police station where
he was shown the front seat of his automobile. The police showed him the new windshield, the bloodstains and the bullet holes in the upholstery. About 5 P.M. Agoston was brought to the Council Room, after stating that he was "willing to talk."
The defendant's bloodstained clothing, which had been found by the officers in the bedroom closet of the defendant's home, had been placed on the table of the Council Room before he was brought up from the cellar. As soon as he noticed the clothing he became "white, hysterical and started to shake violently." Doctor Buckingham was summoned to examine him and he found Agoston's pulse "regular and normal." The physician administered no drugs or medicines but told the officers to give Agoston a drink of coffee. The doctor left after ten minutes.
Shortly thereafter Agoston told the officers that his brother Floyd was responsible for Balliet's disappearance. The brother was sent for and when the two brothers confronted each other the defendant said to his brother: "Go ahead, Floydie, tell them what you did with Russell Balliet." Thereupon the brother became infuriated and had to be restrained from attacking the defendant. The brother was released between 8 and 9 P.M.
The defendant was then shown the German automatic P 38 pistol, two cartridge clips and an arm-holster which the police had found in the defendant's bedroom clothes closet. One cartridge clip was filled, containing seven loaded cartridges, the other contained only five loaded cartridges. The defendant then admitted the gun was his, stating that he had a permit from the Sheriff of Columbia County to carry the weapon for protection.
In the course of their investigation, the police discovered that the defendant had been unemployed for about three years and that he was in considerable financial difficulty. The First National Bank of Millville
held a mortgage on the defendant's home in the sum of $2900 and also a note secured by his car in the sum of $1000. Both of these obligations were in default and the bank had threatened execution. He was indebted to two finance companies in the sum of $600. He owed money on a stove which he had purchased and he owed a further amount of $1500 on his car which he held under a bailment lease.
On December 10th, defendant paid arrearages on his car, amounting to $375 with two $100 bills, three $50 bills, a $20 bill and a $5 bill. These denominations corresponded with the denominations of the currency which Balliet secured from the bank on December 9th. Agoston also paid $10 to another creditor, who testified that Agoston exhibited "equite a roll" but in it there was no $10 bill. There was no bill of that denomination in the money which Balliet obtained from the bank. On this same date, Agoston bought a pair of seat covers for $13.40 and a new windshield for $10. He explained the broken windshield by saying that when he was "driving into his garage, a pole was sticking out." On December 11th, Agoston purchased an overcoat for $80 and on December 12th, he went to a Finance company and discharged an obligation of $30. On December 12th, he paid another creditor $18.04 and on December 13th, he purchased a pair of shoes for $12.80.
Between 9:30 and 10:00 P.M., December 18th, Agoston, after declaring that he would "tell the truth," gave the officers a detailed account of his movements on the night of Balliet's disappearance, stating that he had hit Balliet over the head with the gun and had shot him once in the stomach while they were parked in front of defendant's home, and had shot him once in the back of the head while parked at the northern end of the American Car and Foundry plant, at about 2:30 A.M., on December 10th. He admitted robbing Balliet of $1520. At about 4 A.M. Agoston threw the body into
the Susquehanna River from the Mifflinville Bridge. The autopsy disclosed wounds on Balliet's head and body corresponding with Agoston's account of the assault. About 9:30 A.M., December 19th, Agoston and the police went to Agoston's home, where under his guidance, the officers found two empty P38 cartridge cases and one expended P38 lead pellet in the defendant's garage. He explained that he had found these on the floor of his car as he was cleaning it on the morning of December 10th. At the defendant's home he and his parents talked with one another "in a foreign language," and then his father went down to the cellar and brought up a package of bills made up of five $100 bills, five $50 bills and a $20 bill. These were the same denominations of money which Balliet had obtained from the bank on December 9th. In the attic there was a set of seat covers for the rear seat of a 1946 Dodge Sedan. Agoston informed the police that the matching seat covers for the front seat had been burned in an incinerator.
Agoston then guided the police to the place where he had cast Balliet's body into the river. The police then took him to lunch and later to the police station. Shortly thereafter in the presence of witnesses, the District Attorney, after informing Agoston that whatever he said would be used against him and asking him if he wished counsel, interrogated him and the questions were answered freely.*fn1 The questions and answers
were taken down stenographically and later transcribed. Agoston signed the transcript in the presence of three witnesses.
As to his treatment by the officers, Agoston stated to the District Attorney that he "had a wonderful bed and was well-fed." He said they gave him coffee and were "swell fellows." Agoston said he "confessed everything," and told them "how the murder went on." In his statement, he said: "I was intending all right to shoot him, but I had the gun out half-way and I froze on the gun. I just stopped and hesitated. I wanted to but I didn't want to, and finally we kept on talking and I pulled it out again and then I really released the safety on it. Then again I couldn't shoot. I just couldn't. Then we talked a little more again and by that time I had the gun on my lap and my coat under it, covered it, and I picked the gun up and I hit him over the head.... Then I gave him a shot in the chest, either chest or belly, I don't know which."
After this interrogation, the police went to the defendant's home and there found on the ground along the driveway, a pair of eyeglasses with broken lenses. The opthamologist, who prescribed for Balliet testified that the lenses corresponded with the "very unusual" prescription for glasses that he had issued for Balliet. He said: "That is the only prescription I have of this kind."
On March 18, 1948, three months and nine days after Balliet disappeared, a male body was found floating in the Susquehanna River about 80 miles below the Mifflinville Bridge. Since the winter of 1947-48 had ...