Appeal, No, 200, Jan. T., 1948, from judgment and sentence of Court of Oyer and Terminer of Philadelphia County, June Sessions, 1946, No. 646, in case of Commonwealth of Pennsylvania v. Jasper Johnson, alias James Johnson, alias "Fats", alias "Playboy". Judgment and sentence affirmed.*fn*
William N. Nitzberg, for appellant.
Colbert C. McClain, Assistant District Attorney, with him John H. Maurer, District Attorney, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE HORACE STERN
Jasper Johnson, having been convicted by a jury of murder in the first degree with the imposition of the death penalty, appeals from the dismissal by the trial court of his motions for a new trial and in arrest of judgment.
According to the Commonwealth, Aaron Turner, Johnson, and Clarence Lofton conspired to perpetrate a robbery at the Act Broom Company factory in Philadelphia on December 15, 1945. Lofton stook outside and acted as the lookout. Turner and Johnson entered the premises, where they were met by Frank Endres, an employe of the factory. Turner hit him on the head with a piece of pipe or a sash-weight, knocking him down and causing injuries from which he died two days later. While he was lying on the floor Johnson went through his pockets and extracted a wallet containing about $175; he then threw the wallet into a coal pile underneath the elevator. The noise occasioned by the assault on Endres brought Charles Simmons, the proprietor of the factory, running into the room; Turner struck him with the same weapon, knocking him to the floor and causing injuries from which he died seven days later. While he was lying on the floor Turner robbed him of his money, the amount of which is not disclosed in the testimony. Turner and Johnson ran out, joined Lofton, and the three of them proceeded to a taproom where they had several drinks and divided the spoils. Johnson was apprehended on June 3, 1946; the two others had been arrested previously, Turner earlier on the same day. Johnson was placed in a cellroom in City Hall and confined
there until June 8, a period of five days, when he was taken before a magistrate and testified; he was held for the action of the grand jury and committed without bail. At his trial, which took place in 1947, he denied that he had participated in any way in the robberies and murders.
Johnson's first complaint on this appeal is in regard to references made during the trial, both by the district attorney and the trial judge, to the murder of Charles Simmons; also that the coroner's physician was allowed to testify concerning his autopsy on the body of Simmons and his finding that injuries to the head had caused Simmons' death. It can scarcely be seriously argued that mention of Simmons and the manner of his death should, or could, have been eliminated from the trial since the assaults on Endres and Simmons were made at the same time, with the same weapon, and in the course of the same criminal undertaking. No coherent narrative of the event could have excluded the facts as to the entrance into the room of Simmons and the attack upon him immediately after the assault upon Endres, the robberies from both their bodies, and the flight of the three conspirators from the scene. It all occurred at the same place and time.
During the course of the four or five days of Johnson's incarceration prior to the magistrate's hearing he was questioned from time to time by detectives, either singly or in groups; this was admitted by the Commonwealth and testified to by the detectives themselves. On the night of June 7 he signed a written confession admitting his participation in the crime and reciting in detail the facts in regard thereto; it is suggested by the district attorney they his cooperation with the Commonwealth came after finding out that he had been cheated by Turner in the division of the stolen money. During this period of detention he was not represented by a lawyer, but he made no request for one except to inquire
whether there would be counsel to represent him when his case came up for trial in court, and he was assured that he would then be represented by an attorney appointed by the court. Except that he wanted to see his "girl friend" he did not ask to be allowed to communicate with any of his friends or relatives; on the contrary, he said that he did not want to see any of them. He claims to have been beaten at various times in connection with the interrogations, but this was strenuously denied by the detectives and no marks or bruises on his body were ever observed by anyone; he did not make any complaint to the magistrate or to the prison authorities that he had suffered any such beatings, nor did he seek the services of the jail physician; his assertion, therefore, that he was beaten is, to say the least, of dubious veracity and was obviously rejected by the jury. The learned trial judge instructed the jury that, if force or duress of any kind had been exerted upon him to compel him to make a statement, a confession so obtained could not be used in evidence against him and that the jury should discard it entirely in their consideration of the case; it was only if made voluntarily that it could be regarded as trustworthy, in which event they could give it such force and effect as they thought it entitled to under the circumstances. This submission to the jury of the question whether the inculpatory statement was coerced or was voluntary was in accord with long established Pennsylvania law: Commonwealth v. Spardute, 278 Pa. 37, 48, 122 A. 161, 165; Commonwealth v. Jones, 341 Pa. 541, 548, 549, 19 A.2d 389, 393; Commonwealth v. Simmons, 361 Pa. 391, 400, 401, 65 A.2d 353, 358. Of course it is recognized that the jury's decision on that issue is not conclusive, but is subject to judicial review in order to ascertain whether the methods employed by the police authorities to obtain the confession constituted a violation of the due process clause of the fourteenth amendment of the constitution.
Johnson's principal contention on this appeal is that his signed confession should not have been admitted in evidence because, apart from the alleged, but controverted, beatings, he was held for four or five days after his arrest before being taken before a magistrate for a preliminary hearing, and during that period was subjected to the questioning previously stated. For support of his position he relies upon decisions of the Supreme Court of the United States, which we therefore proceed to examine.
In Ziang Sung Wan v. United States, 266 U.S. 1, the accused, a very sick man, was subjected to persistent, lengthy cross-examination day ad night by detectives. For ten hours he was led continuously from floor to floor of the building where the murder had occurred. On one occasion the questioning continued from 7 o'clock in the evening until 5 o'clock in the morning during which time he was not allowed to sleep. A confession obtained from him after twelve days of such methods was held inadmissible in evidence.
In Brown v. Mississippi, 297 U.S. 278, the accused was seized by a mob, hung by a rope to the limb of a tree, whipped with a leather strap, and threatened with even more severe treatment. It was held that a conviction which rested solely upon a confession thus obtained was void under the due process clause of the fourteenth amendment.
In Chambers v. Florida, 309 U.S. 227, the accused, under a haunting fear of mob violence, was subjected to persistent and repeated questioning almost continuously for a week and finally at a session beginning at 3.30 o'clock in the afternoon and lasting all night, being carried on while he was surrounded by the sheriff, the sheriff's deputies, a convict guard, and other officers and citizens. An admission obtained in the early morning after the all-night vigil was held to be compulsory and the conviction obtained by its use was set aside.
In White v. Texas, 31 U.S. 530, the accused was kept in jail for six or seven days, and on several successive nights was taken by armed rangers into the woods where he was whipped and interrogated. He was questioned from about 11 o'clock one night to 3 or 3.30 o'clock in the morning. The confession then obtained was held to have been coerced and ...