Appeal, No. 44, Jan. T., 1963, from order of Court of Common Pleas of Montgomery County, No. 62-3109, in case of Commonwealth ex rel. James Morris Johnson v. Alfred T. Rundle, Superintendent. Order reversed.
Jules Bell, Assistant District Attorney, with him Richard Lowe, District Attorney, for appellant.
H. Lester Haws, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Johnson was convicted twice of murder in the first degree. In the first case the jury fixed the penalty at death and in the second case the jury fixed the penalty at life imprisonment. Johnson's first conviction was set aside by this Court because of trial errors: Commonwealth v. Johnson, 368 Pa. 139, 81 A.2d 569. His second conviction and sentence was sustained by this
Court in a lengthy unanimous opinion in Commonwealth v. Johnson, 372 Pa. 266, 93 A.2d 691. After that decision, the Supreme Court of the United States denied certiorari. In our opinion in 372 pa. this Court carefully reviewed and rejected all of Johnson's contentions, including his objections to the admissibility of prior convictions under the so-called Parker rule - Commonwealth v. Parker, 294 Pa. 144, 143 A. 904.
On May 9, 1948, a passenger train of the Reading Company was derailed and wrecked at a point in Montgomery County about 1-1/3d miles east of the Valley Forge Station. The engine and three cars were thrown on their sides, the lives of ninety-six passengers were jeopardized, and the engineer and the fireman of the train were killed. Johnson confessed he had removed the spikes from the rail and pointed out to the police the door of the tool house which he had broken in order to obtain a bar, a wrench and a pick. He also pointed out to the police the exact place where the train had been derailed. At the trial he partially repudiated his confessions and also relied upon an alibi.
Johnson was convicted of the murder of the engineer and the fireman under Section 919 of The Penal Code of June 24, 1939, P.L. 872. Section 919 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."
After his second conviction, Johnson appealed to the Board of Pardons for clemency in 1958 and in 1959, but each time his petition was refused.
Johnson recently filed an application with the Court of Common Pleas of Montgomery County for a writ of habeas corpus principally on the grounds (a) that evidence of ...