Appeals, Nos. 139 and 140, Jan. T., 1950, from sentence of Court of Oyer and Terminer of Montgomery County, Nov. Sessions, 1948, Nos. 63 and 63-1, in case of Commonwealth of Pennsylvania v. James Morris Johnson. Judgment reversed.
H. Lester Haws, with him Robert Wayne Honeyman, for appellant.
Bernard E. DiJoseph, with him Roger B. Reynolds, Assistant District Attorneys and J. Stroud Weber, District Attorney, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
James Morris Johnson, tried by a jury, was found guilty of murder in the first degree with penalty of
death. His motion for a new trial was overruled and he now appeals from the judgment and sentence imposed upon the verdict.
A Reading Railroad passenger train travelling from Allentown to Philadelphia was derailed on the night of May 9, 1948 near Valley Forge Station in Montgomerey County. The engineer and fireman were killed. An investigation disclosed that a section of the track had been tampered with and a number of spikes and tie plates removed from the rail; the window of a railroad tool-house about a mile distant from the scene of the wreck had been broken into and a wrench and a crow bar were missing.
Suspicion was directed toward defendant because he had been convicted in 1940 in Delaware of the crime of "obstructing a railroad", that is to say, of attempting to wreck a train; he had been sentenced there to a term of ten years in prison but released after serving seven years. In November, 1948 he happened to be in custody in South Carolina for some traffic violation; Pennsylvania police authorities were sent to that State and defendant voluntarily returned with them. The day after his arrival here he made an oral confession of guilt to the officers and later a similar confession in the office of the district attorney, where his answers to questions propounded to him were taken down stenographically and he signed each page of the transcribed statement. The following day he was taken to the scene of the derailment where he was posed for photographs showing him, in one, pointing to the section of the track which had been removed and, in another, pointing to the window of the tool-house through which forced entry had been made. Upon his return to the district attorney's office he was again interrogated; the questions and answers were stenographically recorded and transcribed and he signed this statement also. Two days later he was given a hearing before a
magistrate on charges of wilful and malicious injury to railroads and murder.
Appellant appeals on several grounds: -- (1) that his confessions were not obtained in accordance with due process of law and were therefore invalid; (2) that the trial court erred in admitting in evidence his prior conviction in Delaware; (3) that the court erred in instructing the jury that their verdict must be either murder in the first degree or not guilty; (4) that the court erred in admitting in evidence the photographs taken of him at the scene of the wreck; (5) that the court erred in the manner in which it answered the jury's inquiry as to the possibility of his being pardoned while serving a sentence of life imprisonment.
(1) Defendant does not deny that his return to Pennsylvania with the police officers was voluntary on his part; he merely testified that his motive was to escape punishment in South Carolina on the charge there pending against him. Neither does he claim that his confessions were not voluntary; he merely testified that they were not true. The confessions were made, one the day after, the other the second day after, his return. He knew he was being questioned by officers of the law and he was informed, before he made either statement, that what he said could be used against him.He does not claim that there was any intimidation, compulsion, threat, inducement or promise of any kind which would stamp them as having been improperly obtained. There was no interrogation so protracted or prolonged as to amount to mental or physical coercion or duress. The court did, however, submit to the jury the question whether the confessions were the voluntary acts of defendant and instructed them that they should consider whether there was any corroborating evidence confirmatory of their truth. Defendant was given a hearing before a magistrate
on the fourth day after his return to Pennsylvania; such a delay cannot be adjudged a denial of due process.
(2) There is no merit in defendant's contention that the record of his former conviction should not have been admitted in evidence. Following the passage of the Act of May 14, 1925, P.L. 759, which imposed upon the jury the duty to determine whether the penalty for the crime of first degree murder should be life imprisonment or death it was established by many decisions in this Commonwealth that it is proper to furnish the jury with the same information a judge would consider when deciding what sentence should be imposed; such information necessarily includes the record of crimes previously committed by the defendant. The court carefully charged the jury that such evidence was admitted, not for consideration by them on the question of guilt, but only to assist them in their determination of the proper sentence if they should find defendant guilty of murder.
(3) Defendant was indicted under section 919 of The Penal Code of June 24, 1939, P.L. 872, which provides that whoever wilfully and maliciously removes or displaces any rail of a railroad, or attempts to derail any engine or car of a railroad, is guilty of a felony, and in every case where the life of a human being is destroyed by, or as a result of, any such acts the offender "shall be deemed guilty of murder in the first degree". Apparently giving consideration only to this and to no other section of the Code the court charged the jury that "there is but one of two verdicts that you may render. You may say that defendant is guilty of murder in the first degree or he is not guilty of anything, and in that case under the law your verdict should be not guilty. In other words, this defendant is either guilty of murder in the first degree or you should declare him not guilty by your verdict."
This charge of the court was erroneous. It is pointed out, in an attempt to support it, that section 919 of the Code stems from the Act of May 26, 1891, P.L. 121, which provided that any one convicted of wilful and malicious removal of any rail on any railroad whereby the life of any human being was destroyed should be deemed guilty of murder; by the Act of June 1, 1911, P.L. 553, it was provided that in such cases the offender should be deemed guilty of murder in the first degree and upon conviction thereof should suffer death; the only change made in section 919 of the Code was the omission of the penalty provision. It is therefore contended that the history of this legislation shows that it was intended thereby to constitute homicide resulting from the derailment of a train as a particular or special type of murder which, unlike all other kinds of murder, cannot be found by either a court or a jury to be murder other than of the first degree. But what difference is there between the making of such offense a distinct kind of murder which constitutes murder in the first degree and the making of a homicide which occurs in the perpetration of any arson, rape, robbery, burglary or kidnapping a distinct kind of murder which constitutes murder in the first degree, as provided in section 701 of the Code? In the latter case we have held from the earliest times, even under the Act of April 22, 1794, 3 Sm. L. 186, section 2, that the phrase "shall be deemed murder of the first degree" did not take from the jury the right to render a verdict of murder in the second ...