Commonwealth v. Johnson

81 A.2d 569, 368 Pa. 139, 1951 Pa. LEXIS 455

Opinions

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 Montgomery 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 ho 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 magis trate on the fourth day after Ms 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 Mhy 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 degree, and all juries have been so charged in this Commonwealth for more than 150 years. It is true that it is. section 701 which contains the added provision that “The jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether the person is guilty of murder of the first or second degree,” but it will be noted that the right thus given to the jury to determine the degree of the murder is not confined to the kinds of murder dealt with in that section alone but applies generally to the case of "any person indicted for murder”; this provision, therefore, is applicable to indictments for murder brought under section 919 of the Code as well as to those brought under section 701. Indeed, if the provisions of section 701 were not to be read inferentially into section 919 there would be no penalty whatever provided for the type of murder dealt with in the latter section since it is only in section 701 that the penalty for murder is prescribed. The Code is a comprehensive enactment of the criminal law; its sections are necessarily interrelated and it must be read and construed as an entirety. The court erred, therefore, in charging the jury that if they found defendant guilty their verdict had to be one of murder in the first degree.

(4) Ordinarily the introduction of photographs into evidence is a matter for the discretion of the trial court but heretofore they have been confined to pictures of the scene of the crime, the weapons used to commit it, the body of the victim, etc.; it would have been proper, therefore, in the present case to present photographs showing the condition of the tool-house window and the position of the rail where the tampering had occurred. The photographs here in question, however, were photographs for which defendant had been made to pose at the instance of the police; he was made to play the part of an actor in order to furnish illustrations to accompany his confessions. It is easy to see how the manufacture and use of such photographs might well lead to great abuses; indeed it would be but a step below the staging of motion pictures of a defendant re-enacting his alleged commission of the crime. Such photographs would be likely to impress a jury to such an extent as virtually to preclude the possibility of an acquittal, however otherwise reasonably justified, because the vividness of tbeir appeal to the eye might well give them greater significance than that to which their evidential value really entitled them. When they were objected to by defendant’s counsel they should have been excluded.

(5) After the jury had been deliberating for some twenty minutes they returned to the court room to receive instructions from the trial judge in answer to a nóte which they had transmitted to him reading as follows : — “What does the sentence life imprisonment mean? Does it mean what it infers or is there the possibility of a pardon after serving part of his time?” The court thereupon stated to the jury that “life imprisonment means what it says. . . . However, the Board of Pardons of the State of Pennsylvania, constituted under the law, has a right to intervene at any time. That is something that we cannot control. It is a separate and distinct organization from the court and in it is vested the power to pardon any of those who are convicted and sentenced by the court. ... I have no means of knowing, and cannot control, what the Board of Pardons may do. As far as the sentence of life imprisonment is concerned, it means that, subject to whatever the Board of Pardons may do in the years that are to come. ... I add to what I have already stated that the Board of Pardons has a right to commute a sentence. Instead of granting a full and complete pardon they can commute the sentence to a certain number of years. That is within their power.” The jury retired, returned two hours later, and announced their verdict as guilty of first degree murder with the penalty of death.

It is obvious that the jury hesitated at fixing the penalty at life imprisonment because they feared that the defendant might be pardoned at some future time by the Board of Pardons, and when the court told them that that might happen; and was something beyond the control of the court they decided, after further deliberation, upon the penalty of death. The statement made by the learned trial judge, although true, of course, in fact, was highly prejudicial to the defendant. It was the jury’s duty to impose the penalty which they thought appropriate in view of the nature of the crime and the character of the defendant as revealed by his previous record and their impressions of him at the trial, and they had no right, apart from such relevant considerations, to speculate as to whether the Board of Pardons might at a future time, wisely or unwisely, exercise some form of clemency. In Commonwealth v. Earnest, 342 Pa. 544, 551, 21 A. 2d 38, 41, Mr. Justice (later Chief Justice) Maxey said: “Appellant’s chief complaint as to the address [of the district attorney] is that the district attorney argued to the jury in effect that if a life sentence was imposed instead of the death penalty, some future Board of Pardons might release the convict ‘in 5 years, 10 years, 20 years, . . . it can always let them out and it does’. . . . Such an argument is improper and is out of place in an address by a district attorney.” If the thought when thus conveyed to the jury by the district attorney was “improper and out of place” it would certainly be all the more objectionable when conveyed to the jury by the trial judge even though by way of a response to their express inquiry. In Commonwealth v. Mills, 350 Pa. 478, 487, 39 A. 2d 572, 576, Chief Justice Maxey said in regard to a question by the jury and answer by the court somewhat similar to those in the present case: “Both the inquiry and the answer were irregular and neither should have been made. . . . Whether if found guilty and sentenced he [the defendant] was then eligible for parole was of no concern to the jury and the trial judge should have said so.” The duty of the jury in such cases is to determine the penalty without recourse to conjecture as to any possible or probable action of the Board of Pardons at some later time. It seems to be quite common for juries in murder cases to make inquiries of this nature, and the reply of the court thereto should be, in substance, that whether the defendant might at any future time be pardoned or have his sentence commuted is no concern of theirs and should not enter in any manner whatsoever into their consideration of the proper penalty to be imposed, which should be determined solely in the light of the relevant facts and circumstances as they then existed.

The judgment and sentence are reversed and a new trial is awarded.