Appeals, Nos. 212 and 213, Jan. T., 1952, from judgment and sentence of Court of Oyer and Terminer of Montgomery County, Nov. T., 1948, Nos. 63 and 63-1, in case of Commonwealth of Pennsylvania v. James Morris Johnson. Judgment and sentence affirmed.
H. Lester Haws, with him Robert W. Honeyman, for appellant.
Bernard E. DiJoseph, Assistant District Attorney, with him J. Stroud Weber, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Upon each of two indictments James Morris Johnson was convicted by a jury of murder in the first degree with penalty fixed at life imprisonment. His motions for new trial and in arrest of judgment were dismissed and this appeal is from the judgment and sentence imposed in accordance with the verdict.
This was defendant's second trial. At his first trial he was convicted of murder in the first degree with penalty of death but upon appeal this Court set aside the conviction for trial errors and awarded a new trial: (Commonwealth v. Johnson, 368 Pa. 139, 81 A.2d 569).
The defendant was indicted under Section 919 of The Penal Code of June 24, 1939, P.L. 872, which provides, inter alia, that whoever wilfully and maliciously removes or displaces any rail of a railroad, is guilty of felony, and in every case where the life of a human being is destroyed by, or as a result of any of such acts, the offender "shall be deemed guilty of murder in the first degree".*fn1
The facts in the case are summarized in the opinion of the Court in the prior appeal, but they will be recounted and amplified here: On May 9, 1948 at 8:55 p.m. (Eastern Daylight Saving Time), a passenger train of The Reading Company consisting of an engine, tender, baggage car and four coaches, was proceeding eastwardly from Allentown, Pennsylvania to Philadelphia
on the southernmost of four tracks, and became derailed and wrecked at a point in Montgomery County about one and one-third miles east of Valley Forge Station, and approximately midway between that station and the next station to the east, Port Kennedy. The engineer and fireman of the train were killed and it was with their deaths that the defendant was respectively charged in the two indictments. An investigation disclosed that a section of the track at the point mentioned 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 tool described as a claw-bar were missing. Because defendant had been convicted in 1940 in the State of Delaware of the crime of "obstructing a railroad", suspicion was directed toward him. He had been sentenced there to a term of ten years in prison but released after serving seven years. In November, 1948 he was located in Edgefield, South Carolina. On November 7th, Pennsylvania police authorities went there and found that he had been picked up by a State Policeman for a traffic violation and was being held in jail for illegal entry. One of the officers from Pennsylvania, Lieutenant Smith of the Reading Police, possessed a warrant for the defendant, issued out of Chester County, Pennsylvania, for a violation of parole. The local South Carolina authorities surrendered their custody of the defendant who then willingly returned by train to Pennsylvania with the officers, the party arriving at Philadelphia on November 9th. En route the officers inquired of defendant as to his whereabouts on May 9, 1948, the date of the train wreck. He told the officers that he had been in Pocomoke City, Maryland the morning of that day and had spent the night in Middletown, Delaware. To
check the accuracy of the defendant's statements, on the next day, November 10th, three of the officers went with the defendant by automobile to Middletown, Delaware. The defendant's statement as to his whereabouts was not substantiated. The party motored back the same day to Norristown, Pennsylvania where defendant admitted tearing up the track. The following day, November 11th, he was taken to the district attorney's office where, after questioning by the district attorney, he signed a statement admitting the displacement of the rail. This statement was taken stenographically in question and answer form, each page of which the defendant signed after making two corrections in his own handwriting. The following day, in the company of police officials and depresentatives of the public press, he went to the place where the train was wrecked and reenacted the crime. Upon returning to the district attorney's office, he made a second statement upon questioning by the district attorney which was taken down stenographically in question and answer form, each page of which he also signed. On November 13th the defendant was given a preliminary hearing on the charge of murder. He did not deny the charge but wanted to know why he was to take the blame when there were supposed to be "two or three other fellows" involved. In his first written statement defendant indicated that he had accomplices. When questioned after the preliminary hearing, he stated that he could not recall the names of these alleged accomplices. The Commonwealth claimed he alone had perpetrated the crime and conjured up the story of accomplices to minimize its enormity.
In support of this appeal appellant makes several contentions: (1) that his convictions were not obtained in accordance with due process of law and were therefore invalid; (2) that the trial court erred in admitting
into evidence prior convictions to aid the jury in determining the penalty where a verdict of murder in the first degree might be rendered; (3) if such prior convictions were admissible, they were not properly proven; (4) the learned trial judge erred when he charged the jury that there is no obligation to warn an individual of his constitutional rights where he has not been charged and there is no legal proceeding pending; (5) that the verdict of murder in the first degree with penalty of life imprisonment was not predicated upon legally sufficient and competent evidence.
(1) Considerably more testimony was adduced by both the Commonwealth and the defendant at his second trial, but after a searching scrutiny of the record we can repeat as applicable to defendant's first contention on this appeal much of what was said in the opinion of the Court in the earlier appeal (368 Pa. 139): "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 [Written] 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.... There was no interrogation so protracted or prolonged as to amount to mental or physical coercion or duress. The court did, however, ...