Reply Brief — Johnson v. Pennsylvania

Supreme Court brief1950

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INDEX

ANSWER: PAGE

Counter Statement of the Case J

Argument.........__. Weve den cad tole xaes i eo

TABLE OF CASES CITED

Commonwealth y. Agoston. 364 Pa. 464. 79 A 2nd 575

Lj EE ae a: -++eee. +10, 16, 22, 25. 96

Commonwealth v. Clark. 130 Pa. 641, 18 A. 988 (1889) 27

Commonwealth y. Johnson, 365 Pa. page 303, 374 A. 2nd

BOGS ox rk die rnréseisas See eR. 29

Commonwealth vy. Logan, 361 Pa. 186. 192, 63 A. 2d 28

ot SOR a ig ae tak be ECE TAN RM AL PRG Ao hoe 8

Commonwealth of Massachusetts v- John Francis

Knapp, 9 Mass. 496 eee v eee ate 6

Commonwealth ex re]. McGlinn v. Smith, 334 Pa. 41,

hein Aesgsft PETERS OEE Pe ee

Commonwealth ex re]. Shaw v. Smith. 147 Pa. Superior

Ct. 423, 24 A. 2nd 724 So 3 PS ae tebe eee . 18,19

Commonwealth y. Spardute, 278 Pa. 37, 129 A. 161

enecraiel SRA OLE Oe tea neds fa eaten Tho ae irk 28

Commonwealth y. Turner, 358 Pa. 350. 364, 58 A. 2d

| RAEN eat aah ee “ha Rie prsetce sl .6, 22

Commonwealth ex rel. Uveges, Appellant v. Ashe, 161

Pa. Sup. 58, 53 A. 2nd 894 fg es rea

Commonwealth v. Weeks, 10D.&C.568 7

Commonwealth v. Werntz, 161 Pa. 591, 29 A. 272 (1894) 8

Frank vy. Mangum, 237 U. S. 309, 326, 35 S. Ct. 582. 59

RE tics ee OT PAE Are ry 20

INDEX

Fa 4

PAGE

Garland yv. Washington, 232 U- S. 642, 34 Sup. Ct. Rep.

We CUE Sensis pocrieder ees ch fh e 2]

mig, Te PO. WOR oe. te: 21

Maxwell v. Dow, 176 U. S. 581. 20 Sup. Ct. Rep. 448

Sion SOR Ee ERE een Lanterns 2]

McNabb v. United States, 318 U. S. 332, 63 Sup. Ct. Rep.

sgl ace on MEME TENET OPEN yh eI he 18

Pico v. U. S., 228 U. S. 225, 33 Sup, Ct. Rep. 482 (1913) 2]

R. vs. Babiry, 2 Den. Cr.C. 405 ......).............. 26

Snyder v. Massachusetts, 291 U.S.97 .............. 6

Straudder v. West Virginia, 100 U.S. 303... 20

Turner, Petitioner v. The Commonwealth of Pennsvl-

vania, 338 U.S. 62 (1949) 6) : 9, 13,24

Walker v. Sauvinet, 92 U.S. 90 20)

STATUTES

1718, May 31 (1 Sm. L. 105. See. 4, 19 ©. &. 786) ...... 22

1869, April 20, P. L. 1187, Sec. 1 (58 P. S. 6858) 17

1869, April 20, P. L. 1187, Sec. 2 (53 P. S. 6859). 18

1907, March 22, P. L. 31, See. 1 (19 P. Fe | EA idee! 22

TEXTBOOKS AND MISCELLANEOUS

Federal Rule of Criminal Procedure, No. 5(a) ........ 18

Underhill on Criminal Evidence, 2d ed., Sec. 132, page

UE Geer arte CO TL Ne Pe Ay 28

INDEX

PAGE

Wigmore on Evidence 26

APPENDIX:

Commonwealth's Exhibit (Testimony Take

nat Hearing

Before Magistrate Edward Wj

lliams. June 8. 1946)

Lieutenant James Kelly 23

Jasper Johnson ................0.0 3a

(Recalled ) 9a

Clarence Lofton 7a

(Recalled) .,

Aaron Turney

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COUNTER STATEMENT OF THE CASE.

About two days before Saturday, December 15, 1945,

Aaron Turner, alias “Treetop,” reconnoitered or observed

the premises of the Ace Broom Factory, at 355-57 North 2nd

Street, in the City and County of Philadelphia, and then

conspired with Jasper Johnson, alias James Jacksdn. alias

“Fats,” alias “Playboy,” this appellant, and one Clarence

Lofton, to commit a robbery.

These three men went to the Ace Broom Company fac-

tory about five o'clock on Saturday afternoon, December

15, 1945, and Aaron Turner, alias “Treetop.” was armed

with a sashweight or pipe. Clarence Lofton stood outside

and acted as the look-out. Aaron Turner entered the prem-

ises with or just ahead of Jasper Johnson, appellant. As

they entered they met Frank Enders, and Aaron Turner

struck him in the head with the sashweight or pipe, knock-

ing him to the floor, causing injuries from which he died at

the Hahnemann Hospital two days later, December 17, 1945.

While he was lying on the floor of the front office of the

Ace Broom Factory. Jasper Johnson. this appellant, went

through his pockets and extracted therefrom about $175,

The noise which had been occasioned by the killing of

Enders caused Charles Simmons. the proprietor of the Ace

Broom Factory, to run into the front room from the rear,

and as he did so, Aaron Turner, alias “Treetop.” hit him

with the sashweight or pipe, knocking him to the floor, and

causing injuries from which he died in the Hahnemann

Hospital seven days later, December 22, 1945. While

Charles Simmons was lying upon the floor, Aaron Turner,

alias “Treetop,” robbed him of an unknown sum estimated

to be from one hundred to several hundreds of dollars. They

thereupon ran out, joined the look-out. Clarence Lofton, and

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Counter Statement of the Cam

proceeded to 6th and Callowhill Streets. to a Laproom, wi

the three had several drinks and divided the mone

The lethal blows which were inflected upon Charles Si

mons and his robbery, as well as that of his employee

Frank Enders, occurred within a few moments of eac! of her

and in the same surrounding circumstances and they were

hoth robbed

All three men gave comorehensive and detailed state.

ments of everything eac» one of them did in the commis« on

of this robbery, wherein these two men were killed The

statements were all made in the presence of the others. and

each one was signed by the others as witnesses These mur-

ders had remained unsolved for almost six months. but as

the result of police investigation, Clarence Lofton had been

apprehended on May 24, 1946 Aaron Turner. alias “Tree-

top” was implicated and thereafter arrested on the morn

ing of June 3. 1946. On the same dav. ir the afternoon,

Jasper Johnson, this appellant. was apprehended hy the

police, and their written confessions were started on June $

1946. and signed on June &, 1946

During the taking of the statements or just after they had

been written down stenographically, the defendants were

brought before Magistrate Edward Williams in the Central

Station for a hearing. They were all present when Lieu-

tenant, now Captain James A. Kelly, Chief of the Homicide

Division of the Philadelphia Police. testified concerning the

commission of the crimes and told Magistrate Williams that

thev had made statements concerning their participation

therein. D. Barlow Burke, Esq.. Assistant District Attor-

ney. was present on behalf of the Commonwealth. and he

thereupon addressed the defendants as follews:

“MR. BURKE: Do any of vou men want to sav

anything this morning I want to warn you in advance

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bossy tall

Counter States, t of the Case

that anything vou say may be used against vou ir court,

and that vou don't have torsay anything if you don't

vant to. IT understand, however. that vou have made

tutements to the officers and signed those statements

la per Johnson ou have made a signed statement to

the officers?

TASPER JOHNSON. Yes, sir.”

Jasper Johnson, this appellant, thereupon was volun-

tarily sworn before the Magistrate. and gave a complete

Statement tn answer to questions put to him concerning his

cipation in the crimes, generally about the same as is

contained in his statement given to the police

Next, Clarence Tu fton, co-defendant. was voluntarily

sworn, and he was told by Mr. Burke that anything he said

may he used against him and that he did not have to sneak

unless he wanted to. He corroborated what Johnson had

said. The stenographer at the magistrate’s hearing, David

F. Houlihan, Jr.. testified at this appellant's trial concerning

the proceedings before Magistrate Edward Williams and his

testimony will be found at page 8? of the notes of te: timon:

After Johnson, this appellant, and Loften had testified.

Aaron Turner, alias ‘Treetop.” was sworn, and havine pre-

viously been warned, he said he did not want to add anv-

thing, but he corroborated the testimony of the two previ-

ous co-defendants, and what they said was true.

At his trial, Jasper Johnson. this appellant, denied that

the statement he had given the police. or the fact that he

had signed those of his co-defendants, was a voluntary act

upon his part, and he said that because of police brutality,

he was compelled not only to sign his statement and sign

the other statements as a witness, but was likewise com-

pelled to testify before the magistrate as he did.

This appellant, Jasper Johnson. alias James Jackson, alias

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Perineee- ae. ee

Counter Statement of the Case

“Fats,” alias “Playboy,” was tried before his Honor, Judge

Edwin O. Lewis and a jury, on January 27, 1947, and was

convicted of murder in the first degree, and given the death

penalty by the jury. A motion for a new trial was argued

before his Honor, Judge Lewis, the Trial Judge, and Judges

Carroll and Bluett as a court en banc. On December 15,

1949, Judge Lewis filed an opinion overruling the motion

for a new trial, and the matter is now before this Court on

appeal, pro forma pauperis, the record of testimony in this

appellant's trial not being printed.

Clarence Lofton, the third co-defendant, pleaded guilty

before Judge Edwin O. Lewis, and his trial was held with

Judges Vincent A. Carroll and Joseph Sloane sitting with

Judge Lewis. After the taking of testimony, Lofton, the

look-out, was adjudged guilty of murder in the first degree

and sentenced to life imprisonment. Lofton’s trial took

place on February 21, 1947.

Aaron Turner, alias “Treetop,” was first tried before his

Honor, Judge Frank Smith and a jury, and was convicted

on September 26, 1946, of murder in the first degree and

the jury fixed the penalty at death. A motion for a new

trial was refused in the lower courts and the matter was

argued before the Supreme Court of Pennsylvania on No-

vember 24, 1947, and the conviction was affirmed by the

Court, Mr. Justice Jones concurring, in an opinion by Mr.

Chief Justice Maxey, dated March 23, 1948, found at 358

Pa. 350. Counsel for Turner thereupon filed a petition for

a writ of certiorari in the Supreme Court of the United

States, which was allowed before the Commonwealth of

Pennsylvania was given an opportunity to file an answer

thereto, and the matter was argued before the Supreme

Court of the United States on November 17. 1948, Mr.

Justice Murphy being absent. On June 27, 1949, in an opin-

ion by Mr. Justice Frankfurter, in which Mr. Justice

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Argument

Murphy, Mr. Justice Rutledge, and Mr. Justice Black joined

and Mr. Justice Douglas concurring in a separate opinion,

anew trial was granted. Chief Justice Vinson, and Justices

Reed, Jackson and Burton upheld the conviction, and Mr.

Justice Jackson tiled a vigorous dissenting opinion to the

action of the majority of the Court. Following the decision

of the Supreme Court of the United States in Turner. Pe-

titioner, versus the Commonwealth of Pennsylvania. 338

U.S. 62 (1949), a retrial was had of Aaron Turner, alias

“Treetop,” on September 19th, 1949, before the Honorable

Harry S. McDevitt, P. J., and a jury, and Turner was again

convicted of murder in the first degree and the penalty

fixed at death by the jury.

ARGUMENT.

There is no doubt of this appellant's guilt. Subsequent

events have irresistibly shown that the only conclusion that

can possibly be reached is that he. Turner and Lofton, did

rob and murder Enders and Simmons at about the same

time, and under the same circumstances, on Saturday, De-

cember 15, 1945, about five p. m., at 355-57 North 2nd

Street, the premises of the Ace Broom Company, in Phila-

delphia, Pennsylvania.

A comparison of what Lofton, this appellant, Jasper

Johnson, and Aaron Turner said in each others presence

before Magistrate Williams (notes of testimony, p. 83),

shows that there was no fabrication, that only one cognizant

of the details of these brutal homicides could have told such

a sordid story, and only one who had been an active partici-

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pant therein could have known what then transpired. The

testimony before Magistrate Edward Williams on June 8,

1946, is also attached as Appendix A to this brief.

Before the magistrate, Johnson, this appellant, burst forth

with an alacrity and with a spontaneous desire, not at all

exhibited by Turner, but in a way that is so often present

in the actions and statements of guilty persons. At no time

was Appellant Johnson questioned by the authorities for

more than an hour a day. a total altogether of approximately

six hours. Johnson's attitude was such as to confirm the

quotation of the late Chief Justice Maxev in his opinion in

the first Turner case, cited in 358 Pa., 350 (1948) at p. 364,

58 A. 2d 61, where, using the famous words of Daniel Web-

ster, speaking to the jurv in the case of Commonwealth of

Massachusetts versus John Francis Knapp. 9 Mass., 496.

he said:

“He had done the murder. No eve has seen him. no

ear has heard him. The secret is his own, and it is safe!

Ah! Gentlemen, that was a dreadful mistake. Such a

secret can be safe nowhere—the guilty soul cannot keep

Its own secret. It is false to itself: or rather it feels an

irresistible impulse of conscience to be true to itself. It

labors under its guilty possession, and knows not what

to do with it. The human heart was not made for the

residence of such an inhabitant. It finds itself preved

on by a torment, which it dares not acknowledse ‘to

God or to man. A vulture is devouring it. and it ean

ask no sympathy or assistance, either from Heaven or

from earth. The secret which the murderer possesses

soon comes to possess him. and. like the evil spirits of

which we read, it overcomes him. and leaves him whith-

ersoever it will. He feels it beating at his heart, rising

in his throat, and demanding disclosure. He thinks the

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Argument

whole world sees it in his face, reads it in his eyes, and

hears its workings in the very silence of his thoughts. :

It has become his master. It betrays his discretion, it

breaks down his courage, it conquers his prudence.

When suspicions from without begin to embarrass him.

and the net of circumstances to entangle him, the fatal

secret struggles with still greater violence to burst

forth. It must be confessed, it will be confessed, there

is no refuge from confession but suicide, and suicide is ;

confession.”

Johnson, this appellant, was voluble, Johnson, this ap-

pellant, was anxious, he was willing, he desired more than

anything on this earth, at that particular time, to tell what

he had done, to unburden his soul of the details of these

heinous crimes. Then, sitting in his cell, awaiting trial, he

has had a change of heart. The instinct of self-preservation

causes him to go to court, and there to commit perjury and

to say that not only were his statements to the police and

his signing of his co-defendants’ statements extorted from

him, but that he testified before the magistrate falsely be-

cause he was afraid. Does perjury mean anything to a

murderer? Does perjury mean anything to a robber? Of

course not.

Referring specifically to the questions raised by the ap-

pellant; first. admissibility of testimony and references to

the murder of Charles Simmons, in a trial on an indictment

charging the defendant with the murder of Frank Enders, :

it can be stated that these two men were killed with the ;

same lethal weapon in the hands of Aaron Turner. alias

“Treetop,” at or about the same time under practically the

same circumstances. In Commonwealth vs. Weeks, 10

D. & C., 568, the defendant was tried and convicted for the

killing of a small boy named Eugene Williams, but at or

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about the same time the defendant had not only killed Mrs

Williams, but also another child by the name of James. The

dead bodies had been found in a bed, partly burned, in an

upstairs rear room. And all these facts were given to the

jury. Not only is it part of the res gestae, to show just

exactly what happened at the time of the homicide on trial

but to prove what manner of man the defendant may be.

Just at what point should the Commonwealth be required

to stop? It is not denied that these two victims were found

at or about the same time, their blood and their brains in-

termingling on the floor of the same store where they both

were employed, both apparently struck in the head with the

same blunt instrument and both robbed. In Common-

wealth v. Logan, 361 Pa. 186, 192, 63 A. 2d 28 | 1949). Mr.

Justice Linn, referring to the case of Commonwealth ¥.

Werntz, 161 Pa. 591, 29 A. 272 (1894). said:

"=" * we adopted the definition of Wharton on Evi-

dence, Section 259, that ‘the res gestae are the cir-

cumstances which are the undesigned incidents of the

litigated act, which are admissible when illustrative

of such act. These incidents mav be separated from

the act by a lapse of time more or less appreciable,

Their sole distinguishing feature is that thev should be

the necessarv incidents of the litigated act: necessarv

in this sense, that they are part of the immediate prepa-

rations for, or emanations of such act. and are not pro-

duced by the calculated policy of the actors.”

Of course, Mr. Justice Linn was referring to statements

made by the victim, but the circumstances surrounding a

particular homicide are always admissible. The Common-

wealth contends there is no merit in this particular allega-

tion of error.

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With reference to the appellant’s second statement of

questions involved, to wit, the admission in evidence of the

confessions of the accused and his co-defendants, it is the

Commonwealth's contention that there is nothing in the

opinion of the Supreme Court of the United States. Turner,

Petitioner v. The Commonwealth of Pennsylvania, 338 U. S.

62 (1949), which forbids the questioning of a suspected

criminal by the police for a reasonable time. It must be

borne in mind that this appellant, Jasper Johnson, was most

voluble and spontaneous in his telling of what had tran-

spired when Enders and Simmons were killed. He was not

held five days before a preliminary hearing, but from the

afternoon of May 3rd to the early morning of May 8th. He

was questioned altogether about six hours. And he was

not questioned continuously at great lengih, or abused. No-

where does that appear in the testimony, except from the

statements of the defendant himself, which the Common-

wealth contends were perjury, and which the jury found

were not true.

Judge Edwin O. Lewis, the Trial Judge in this appellant's

case, at page 11 of his opinion overruling a motion for a

new trial, filed December 15, 1949. said:

“One would think that the success of the police meth-

ods in accomplishing a solution of the crimes involved

in this case would of itself tend substantially to vindi-

cate and to justify those methods. there being no credi-

ble evidence that the detention and investigation re-

sulting in the solution involved anv phvsical violence or

beating whatever. Can anvone—even a Justice of the

Supreme Court of the United States-—-suggest a more

effective, or even an effective alternative method, for

the resolving of the crimes that so often are never

solved in our cities? There was detention, confinement.

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and a play upon the cupidity of all of the men con-

cerned, but no brutality was established by any be-

lievable testimony or circumstance.

“Hence the case poses the question of whether the

rights of society are superior to the rights of the indi-

vidual. All individual rights are relative, not absolute:

they must give wavy at times and under circumstances

to the much more essential prerogatives of the many

as a social group, as well as the State.

“Every individual constantly risks arrest as a sus-

pect, and must submit to a reasonable detention while

the process of investigation and vindication operates

Fach of us, doubtless, resembles another, and may be

mistaken for that other by a victim, especially in the

darkness, and may !« identified with reasonable eon-

viction as a robber, a thief or a murderer, What is a

reasonable amount of time to allow the police for in-

vestigation always depends upon the circumstances and

the personalities involved.”

And what has this Court, the Supreme Court of Penn-

sylvania, had to say upon the admissibility of confessions”

In an opinion by Mr. Chief Justice Maxey. in the case of

Commonwealth vy. Agoston, 364 Pa. 464, 72 A. 2nd 575

(1950), unanimously affirmed and filed on April 10, 1950,

after Chief Justice Maxey had passed away, in which case

the Supreme Court of the United States has just refused

certiorari on Oct. 9th, 1950, it was held. at page 476:

“At no time in the questioning of Agoston was there

any breach of his constitutional rights. Uf the police

had not interrogated him, they would have been derelict

in their duty. Experienced and qualified police officers

know, as do psychologists and theologians, that when

a man possesses a guilty secret, he will, if given proper

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encouragement, disclose it. When a murder has been

committed and the circumstances point to the one who

is responsible for it, it is the duty of the police to en-

courage and not to discourage that person to tell the

truth. As Chief Justice Paxon said in Commonwealth

v. Clark, 130 Pa. 641, 18a, 988: ‘The law is always j

tender and merciful to a defendant. It will protect him ]

against the use of a confession drawn from him by hold- F

ing out inducements to make it: but when a criminal

wants to ease his mind by a voluntary confession, it

would be a weak sentimentalism to interfere with his

doing so.

“Wigmore on Evidence, 3rd edition. pages 318-319,

Section 851, observes: ‘An innocent person is alwavs

helped by an early opportunity to tell his whole story:

hundreds of suspected persons every dav are set free

because their story thus told bears the marks of truth.

Moreover, and more important, every euilt, person is

almost always ready and desirous to confess, as soon as

he is detected and arrested. This psychological truth,

well-known to all criminal Trial Judges, seems to be

ignored by some Supreme Courts. The nervous pressure

of guilt is enormous: the load of the deed done is

heavy; the fear of detection fills the consciousness; and

when detection comes, the pressure is relieved: and the

deep sense of relief makes confession a satisfaction. At

that moment he will tell all, and tell it truly. To forbid

soliciting him, to seek to prevent this relief. is to flv in

the face of human nature. It is natural, and should be

lawful, to take his confession at that moment. the best

one.”

“For a police officer to say things to a suspect which

would interfere with the natural desire of a criminal, a

short time after committing his crime, to ‘unbosom him-

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self,’ is not consistent with common sense and would

be prejudicial to the efficient administration of justice

and would weaken the already inadequate protection

which society has against criminals.

“In Commonwealth vy. Dillon, 4 Dallas 116, Mr.

Justice McKean, speaking for this Court, said: ‘If such

declarations are voluntarily made, all the world will

agree that they furnish the strongest evidence of im-

puted guilt. The true point for consideration, there-

fore, is whether the prisoner has falsely declared him-

self guilty of a capital offense.’

“In Wilson y. State, 19 Ga. App. 759, 92 S. FE. 209.

Justice (now Senator) George, said: ‘Practically all

the authorities agree that ihe only proper question is

whether the inducement held out to the prisoner tended

to make his confession an untrue one. The object of

every legal investigation is to ascertain the truth. The

underlying principle is that the only confession that

can be excluded is the false confession.’

“Brutal methods of obtaining confessions are inter-

dicted for two reasons. (1) Inhuman treatment of

prisoners is outlawed in all civilized countries, (2) A

confession obtained by methods which would induce a

prisoner to confess to a crime which he did not commit

in order to be relieved of treatment which has become

intolerable, is worthless both in logic and in law. On

the other hand, when a prisoner has not been abused

in any way, his admission of guilt, in reply to the in-

terrogations of well-trained officers, should he accepted

as evidence. If a man confesses to a crime which he did

not commit, his confession, as soon as it is checked (as

all confessions are), will always be found to be worth-

less because a lie never fits a fact. A mere naked con-

fession, without corroboration, and which is later re-

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pudiated, is of such little probative value that it usually

falls short of proving guilt beyond a reasonable doubt.”

And what did Mr. Justice Jackson of the United States

Supreme Court say in his vigorous dissenting opinion to the

decision in Turner, Petitioner, vs. Commonwealth ot Penn-

svlvania, 338 U. S., 62, 69 Sup. Ct. Rep. 1352 (1949).

“The seriousness of the Court's judgment is that no

one suggests that anv course held promise of solution

of these murders other than to take the suspect into

custody for questioning. The alternative was to close

the books on the crime and forget it. with the suspect

at large. This is a grave choice for a society in which

two-thirds of the murders already are closed out as

unsolvable.

“A concurring opinion, however, goes to the very

limit and seems to declare for outlawing any confession,

however freely given, if obtained during a period of

custody between arrest and arraignment * * * which,

in practice, means all of them.

“Others would strike down these confessions be-

cause of conditions which they sav make them ‘invol-

untary’. In this, on only a printed record, they pit

their judgment against that of the Trial Judge and the

jury. Both, with the great advantage of hearing and

seeing the confessor and also the officers whose con-

duct and bearing toward him is in question, have found

that the confessions were voluntary. In addition. the

majority overrule in each case one or more State Ap-

pellate Courts. which have the same limited oppor-

tunity to know the truth that we do. * * #

“Of course, no confession that has been obtained by

any form of physical violence to the person is reliable

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and hence no conviction should rest upon one obtained

in that manner. Such treatment not only breaks the

will to conceal or lie, but may even break the will to

stand by the truth. Nor is it questioned that the same

result can sometimes be achieved by threats, promises

or inducements, which torture the mind but put no

sear on the body. If the opinion of Mr. Justice Frank.

furter in the Watts case was based solely on the State's

admissions as to the treatment of Watts. I should not

disagree. But if ultimate quest in a criminal case js

the truth, and if the circumstances indicate no Violence

r threats of it, should soc iety be deprived of the sus-

wae help in solving a crime merely because he was

confined and questioned when uncounselled?

“We must nct overlook that in these, as in some

previous cases, once a confession is obtained, it supplies

ways of verifying its trustworthiness. In these cases

before us, the verification is sufficient to leave me in no

doubt that the admissions of guilt were genuine and

truthful. Such corroboration consists in one case of

finding a weapon where the accused has said he hid

it, and in others that conditions which could only have

been known to one who was implicated correspond

with his story. It is possible, but it is rare, that a con-

fession, if repudiated on the tri: il, standing alone will

convict unless there is external proof of its verity

“In all such cases, along with other conditions eriti-

cised, the continuity and duration of the questioning is

invoked and it is called an ‘inquiry’, ‘inquest’ or ‘in.

quisition’, depending mainly on the emotional state of

the writer. But as in some of the cases here. if jn

terrogation is permissible at all, there are sound reasons

for prolonging it * * * which the opinions here ignore.

The suspect at first perhaps makes an effort to excul-

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pate himself by alibis or other statements. These are

verified, found false, and he is then confronted with

his falsehood. Sometimes, as here, more than one crime

is involved. The duration of an interrogation may well

depend on the temperament, shrewdness and cunning

of the accused and the competence of the examiner.

But assuming a right to examine at all, the right must

include what is made reasonably necessary by the facts

of the particular case,

“If the right of interrogation be admitted. then it

seems to me that we must leave it to Trial Judges and

juries and State Appellate Courts to decide individual

cases, unless they show some want of proper standards

of decision. I find nothing to indicate that any of the

courts below in these cases did not have a correct un-

derstanding of the Fourteenth Amendment, unless this

Court thinks it means absolute prohibition of ‘nter-

rogation while in custody before arraignment.

“IT suppose no one would doubt that our Constitution

and Bill of Rights, grounded in revolt against the arbi-

trary measures of George II] and in the philosophy of

the French Revolution, represent the maximum restric-

tions upon the power of organized society over the in-

dividual that are compatible with the maintenance of

organized society itself. They were so intended and

should be so interpreted. It cannot be denied that,

even if construed as these provisions traditionally have

been, they contain an aggregate of restrictions which

seriously limit the power of society to solve such crimes

as confront us in these cases. Those restrictions we

should not for that reason cast aside, but that is good

reason for indulging in no unnecessary expansion of

them.

“I doubt very much if they require us to hold that the

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State may not take into custody and question one sus-

pected reasonably of an unwitnessed murder. If it does,

the people of this country must discipline themselves

to seeing their police stand by helplessly while those

suspected of murder prow! about unmolested. Is it a

necessary price to pay for the fairness which we know

as ‘due process of law’ And if not a necessary one,

should it be demanded by this Court? I do not know

the ultimate answer to these questions.”

Then again referring to Chief Justice Maxev's opinion i

the case of Commonwealth v, Agoston, supra, he had this to

sav at page 479:

“Eliminating those abnormal individuals who confess

to crimes in order to obtain publicity, which confes-

sions are quickly discredited by checking their details,

it is dificult and perhaps impossible, to find in the

annals of American court trials a single instance where

a mentally and physically adult person of normal health

and intelligence, who was well-treated as to food. lodg-

ing, water, air and rest, ever confessed under the mere

‘pressure’ of interrogation, to a crime which he did not

commit. Those who have had experience as lawvers or

judges in the trial of e.ther civil or criminal cases have

seen witnesses undergo direct and cross-examination

for several successive days without anv physical or

mental breakdown.

“Appellant also complains because he was not given

a preliminary hearing until the fourth dav after his

arrest. Such a delay in granting a defendant a pre-

liminary hearing cannot properly be adjudged a denial

of due process. If the delay is due to the fact that the

time between the arrest and the hearing is spent in at-

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Argument

tempting by improper means to force a confession from

4 prisoner, the wrong done the prisoner is not the delay

in giving him a hearing, but the methods used to secure

a confession. A confession may be secured after a hear-

ing as well as before a hearing. If the means emploved

are proper, a confession is testimonially worthy; if the

means employed are improper a confession is testi-

monially worthless, A confession may be secured from

a prisoner by unlawful methods one hour after his ar-

rest and he may be given hearing one hour after that.

but the promptness of the hearing would not make his

confession admissible. On the other hand a defendant

may not be given a hearing for ten days after his ar-

rest, vet during that period he might voluntarily con-

fess his guilt without any questions whatsoever, The

delay in giving him a hearing would not make his con-

fession inadmissible.”

There is no statute in Pennsylvania that designates a

preliminary hearing as a part of “due process of law.” Many

times hearings are waived by defendants. Many times they

do not care to testify. The only statute upon this subject

is that of the Act of April 20, 1869, P. L. 1187, section 1, 53

Purdon's Digest. section 6858. which reads as follows:

“In all cases of arrest made by any police officer or

constable of the city of Philadelphia upon any of the

Streets or highways of any of the cities of this common-

wealth, it shall be the duty of the police officer or con-

stable making such arrest to take the person arrested

for a hearing to the office of the alderman or magistrate

nearest to the place where said arrest has been made,

except when the person shall be arrested for intoxica-

tion, in which case the intoxicated person shal! be taken

Argument

to the station-house for a hearing before the committing

magistrate of the district.”

Act of April 20, 1869, P. L. 1187, $2, 53 Purdon’s, 6859.

“Any police officer or constable who shall violate the

provisions of this act, upon conviction thereof, shall be

punished by a fine of not less than fifty dollars and dis-

missed from office.”

However, there is a Federal Rule of Criminal Procedure,

No. 5(a) which requires an officer or person making an

arrest to take the arrested person without unnecessary

delay before the nearest available United States Commis-

sioner or before any other nearby officer empowered to com-

mit persons charged wit. offenses against the laws of the

United States.

There is no corresponding statute extant in Pennsylvania

nor does the Supreme Court of the United States have any

procedural jurisdiction over the Courts of the Sovereign ci

States. McNabb v. United States, 318 U. S. 332, 63 Sup. Ct. A

Rep. 608 (1943). W

As was said in the case of Com. ex rel. Shaw v. Smith,

147 Pennsylvania Superior Court, 428, 24 A. 2nd 724 (1942),

at page 433, bv President Judge Keller:

“The Fourteenth Amendment to the Federal Consti-

tution, the ‘due process of law’ clause of which—equiva-

lent to the clause in our Constitution: ‘Unless by the

judgment of his peers or the law of the land,’—has been

extended far beyond its original signification, does not

require that the ‘process of law’ in order to he ‘due,

must be the same in all the states, or the same as pre-

scribed for the Federal courts. The State is free to reg-

ulate the procedure of its courts in accordance with its

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Argument

own conceptions of policy, unless in so doing it ‘offends

some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamen-

tal’ (Italics ours): Brown v. Mississippi, 297 U. S. 278,

285; Snyder v. Massachusetts, 291 U. S. 97, 105: Hurtado

v. California, supra; Missouri v. Lewis, 101 U.S. 22. 31:

Lisenba vy. California, 314 U. S. 219, 62 Sup. Ct. 280, 290:

Mooney vy. Holohan, Warden, 294 U. S. 103, 113. ‘Its

procedure does not run foul of the Fourteenth Amend-

ment because another method may seem to our thinking

to be fairer or wiser or to give a surer promise of pro-

tection to the prisoner at the bar’: Snyder v. Massa-

chusetts, supra. A judicial practice that has been non

existent for 165 vears cannot be said to be so ‘rooted

in the traditions and conscience of our people as to he

ranked as fundamental’

This case of COM. ex rel, SHAW vy. SMITH, supra, was

cited with approval in the case of COM. ex rel. UVEGES.

Appellant v. ASHE, 161 Pa. Sup. 58, 53 A. 2nd 894 (1947),

whe

rein Judge Rhodes at page 62 said:

“(4) The Sixth Amendment to the Federal Consti-

tution @ ing to an accused in all criminal prosecutions

the rignt to have the assistance of counsel for his de-

fense applies only to trials in the Federal courts. Betts

v. Brady, 316 U.S. 455, 461, 62 S. Ct. 1252. 86 L. Ed.

1595, 1601; Com. ex rel. MeGlinn v. Smith. supra, 344

Pa. 41, 45, 24 A. 2d 1, 3.

“(5) The Fourteenth Amendment to the Federal

Constitution relating to due process does not impose

upon the states any uniform policy concerning repre-

sentation by counsel in criminal cases: and it cannot

be said that the amendment embodies an inexorable

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command that no trial for any offense, or in any court,

would be fairly conducted and justice accorded a de-

fendant who is not represented by counsel. Betts vy.

Brady, supra, 316 U. S. 455, 473, 62 S. Ct. 1252, 86 L. Ed.

1595, 1607; Com. ex rel. McGlinn v. Smith, supra, 344

Pa. 41, 49, 58, 24 A. 2d 1; Com. ex rel. Shaw v. Smith,

supra, 147 Pa. Superior Ct. 423, 433, 24 A. 2d 724; Mayo

v. Wade, 5 Cir., 158 F. 2d 614. See also, Foster, et al.

v. Illinois, 332 U. S. 134, 67 S. Ct. 1716, 91 L. Ed. 1542:

Gayes v. New York, 332 U. S. 145, 67 S. Ct. 1711, 91

L. Ed. 1549.”

Therefore, the States are not uniformly bound to have

like procedure in criminal cases, nor are they held to the

same ruics concerning the admission of evidence by which

criminal trials are conducted in the Federal Courts.

The Supreme Court of the United States decided in

STRAUDDER v. WEST VIRGINIA, 100 U. S. 303, as fol-

lows:

To give the Supreme Court of the United States jur-

isdiction there must be a denial or inability resulting

from the Constitution or laws of a State. The suffi-

cier.cy of the evidence in a criminal case is not a Fed-

erai question.

In WALKER v. SAUVINET, 92 U. S. 90:

A party is not deprived of his liberty without due

process of law if the trial is had according to the settled

course of judicial proceedings.

In the case of FRANK v. MANGUM. 237 U.S 309. 326,

35 S. Ct. 582. 59 L. Ed. 969. it was held: ;

It is perfectly well settled that a criminal prosecu-

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Argument

tion in the courts of a state, based upon a law not in

itself repugnant to the Federal Constitution, and con-

ducted according to the settled course of judicial pro-

ceedings as established by the law of the State. so long

as it includes notice, and a hearing, or an opportunity

to be heard before a court of competent jurisdiction,

according to established modes of procedure, is “due

process” in the constitutional sense.

And this case went on further to hold:

Where an appeal is given in criminal prosecution, in

determining whether defendant has been convicted

without due process of law. proceedings in the Appel-

late Court as well as proceedings in the trial court must

be considered.

And the Supreme Court of the United States has gone on

further to conclude:

“No particular form of procedure is required.” (GAR-

LAND v. WASHINGTON, 232 U. S. 642. 34 Sup. Ct.

Rep. 456 (1913).) “And where the conditions just enu-

merated are fulfilled there is no violation of the guar-

anty of due process of law.” (PICO v. U. S., 228 U. S.

225. 33 Sup. Ct. Rep. 482 (1913).)

In KRUG, 79 Fed. 308, it was said:

The law by which the question of due process is de-

termined is the law of the jurisdiction where the of-

fense was committed and the trial is had.

Indeed, in MAXWELL v. DOW, 176 U. S. 581, 20 Sup. Ct.

Rep. 448 (1900), it was held:

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Within constitutional limits, the State and Federal

Governments have full control over criminal procedure

within their respective jurisdictions * * * When the

complaint is merely that a State court has erroneously

decided the facts of the case, all the proceedings before

it being regular and sufficient. no claim of a denial of

due process can be set up. (FRANKLIN v. SOUTH

CAROLINA, 218 U. S. 161.)

Counsel for the appellee has purposely divided the sec-

ond statement of questions involved given by the appellant,

and desires to make particular reference to the alleged error

that defendant did not have counsel at the time of the mac-

istrate’s hearing.

“The Act of May 31, 1718. 1 Sm. L. 105, Section 4. 19 P. S.

783, requires the courts to assign ‘learned counsel’ to prison-

ers upon all trials of capital cases. This is also required by

the Act of March 22, 1907. P. L.. 31, Section 1, 19 P. S. 784.

which also provides for compensation and expenses for such

assigned counsel. This has never been interpreted to mean

that counsel must be provided for persons accused of capital

crimes as soon as those persons are taken into custody. See

Commonwealth ex rel. McGlinn v. Smith, 334 Pa. 41. 24 Mn

2d 1." The above was a quotation from a foot-note on page

356 of the case of Commonwealth v. Turner. supra.

Mr. Chief Justice Maxey had much to sav about that in

the case cf Commonwealth v. \coston. supra, at page 480,

as follows

“If due process requires the state to provide a de-

fendant with counsel while he is being interrogated bv

police officers, the state should logically be required to

provide a suspect with counsel from the very moment

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Argument

of his arrest... The only function counsel could have at

the time of a suspect's interrogation would be to in-

struct him to ‘keep his mouth shut.’ It is well known

that the ‘secret which the murderer possesses soon com-

mences to possess him’ and that his guilty conscience

exerts a tremendous pressure on his vocal faculties.

This is especially true when shortly after the crime’s

commission there is a let down in the criminal’s nervous

energy and remorse is temporarily in the ascendant.

If a criminal, desiring to release his troublesome secret.

is to be frustrated by the action of the state in pro-

viding him at that time with an advocate who will

counsel silence, the number of unsolved American mur-

ders will be greatly augmenied, for he who plans a

murderous assault does not plan to have it witnessed

by anyone except the victim, and his lips, the felon

quickly and permanently seals. If ‘due process’ re-

quires that counsel be present when a suspect in a

murder case is being interrogated, there is no logical

reason why it should not require that counsel be pres-

ent when a suspect in a burglary or robbery is being

interrogated.

“Since the record shows that Agoston was questioned

by state and local police officers in a proper manner,

that no physically or psychologically coercive methods

were used by the officers to obtain a confession from

* Agoston was asked if he wanted counsel and he answered “No.”

The right guaranteed a defendant by Section 9 of the Pennsylvania

Bill of Rights, “to be heard by himself and his counsel, to demand the

nature and cause of the accusation against him, to meet the witnesses

face to face,” ete.. does not mean that he must be provided with

counsel as soon as he is taken into custody. The Act of May 31, 1718,

1 Sm. L. 105, Par. 4, 19 P. S. 783. provides that “learned counsel” be

“assigned to the prisoners” upon all trials of “capital crimes.” The

Act of March 22, 1907, P. L. 31, Par. 1, provides for the appointment

by the court of not more than two persons to act as counsel for a

defendant when he is under indictment for murder and files an affidavit

that he is destitute of means to employ counsel.

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him, the complaint of denial of due process of law in

this case is without merit.

“In Lyons v. Oklahoma, 322 U. S. 596, the defendant

was indicted for murder. No counsel was supplied him

until after his preliminary examination, which was sub-

sequent to the confessions he had nrade. Lyons com-

plained that the police officers physically abused and

threatened him. This was denied by tne officers. The

interrogations, before Lyons confessed. continued until

two-thirty in the morning. The Supreme Court held

in an opinion by Mr. Justice Reed that, ‘The mere ques-

tioning of a suspect while in the custody of police offi-

cers is not prohibited either as a matter of common

law or due process (Citing cases)’. It was held that

the defendant had not been denied duc process of law

and that: ‘The Fourteenth Amendment is a protection

against criminal trials in state courts conducted in such

a manner as amounts to a disregard of that fundamental

fairness essential to the very concept of justice, and in

a way that necessarily prevents a fair trial’ Lizenba

v. California, 314 U.S. 219, 226.”

And what does Mr. Justice Jackson have to say in his dis-

senting opinion previouslv referred to. in Turner, Peti-

tioner, v. Commonwealth of Pennsvlvania. supra?

“Amid much that is irrelevant or trivial. one serious

situation seems to me to stand out in these cases. The

suspect neither had nor was advised of his right to .

counsel. This presents a real dilemma in a free society. *

To subject one without counsel to questioning which

may and is intended to convict him, is a real peril to

individual freedom. To bring ina lawyer means a real

peril to solution of th. crime because under our ad-

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Argument

versary system, he deems that his sole duty is to pro-

tect his client; guilty or innocent—and that in such a

capacity he owes no duty whatever to help society solve

its crime problem. Under this conception of criminal

procedure, any lawyer worth his salt wiil tell the sus-

pect in no uncertain terms to make no statement to

police under any circumstances,

“If the state may arrest on suspicion and interrogate

without counsel, there is no denying the fact that it

largely negates the benefits of the constitutional guar-

anty of the right to assistance of counsel. Anv lawyer

who has ever been called into a case after his client had

‘told all’ and turned any evidence he has over +o the

government, knows how helpless he is to protect his

client against the facts thus disclosed.

“IT suppose the view one takes will turn on what one

thinks should be the right of an accused person against

the state. Is it his right to have the judgment on the

facts? Or is it his right to have a judgment based on

only such evidence as he cannot conceal from the au-

thorities, who cannot compel him to testify in court and

also cannot question him before? Our system comes

close to the latter by any interpretation. for the de-

fendant is shielded by such safeguards as no svstem of

law except the Anglo-American concedes to him.”

Mr. Chief Justice Maxey in Commonwealth v. Agoston,

Supra, at page 483 concerning the admissibility of confes-

sions, says:

“In judging the admissibility of confessions. these

facts and principles must be taken as established: (1)

The fact that the confessor is in custody and has no

counsel does not invalidate the confession made by him.

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(2) The fact that the interrogation of a suspect con-

tinues until he confesses is not per se a ground for in-

validating his confession, nor is the fact that the inter-

rogation lasted for a considerable period of time any

ground for invalidating the confession, unless the in-

terrogation was so long in duration as to amount to

mental or physical coercion and duress.”

And in conclusion Mr. Chief Justice Maxey quoted the

words of Justice Cardoza of the Supreme Court of the

United States in Snyder v. Massachusetts, 291 U. S. 97, with

regard to due process of law, as follows:

“The test is whether or not the thing complained of

is ‘so flagrantly unjust that the Constitution of the

United States steps in to forbid it... Justice Cardoza

said: ‘Due process of law requires that the proceedings

shall be fair, but fairness is a relative, not an absolute

concept. It is fairness with reference to particular con-

ditions or particular results. The due process clause

does not impose upon the states the duty to establish

ideal systems for the administration of justice. with

every modern improvement and with provision against

every possible hardship that may befall... Ownbey v.

Morgan, 256 U. S. 94—The concept of fairness must not

be strained until it is narrowed to a filament. We are

to keep the balance true.”

And then the Chief Justice, quoting from Wigmore on

Evidence in a footnote at page 487 of Commonwealth v.

Agoston, supra, uses the words of an eminent English Judge.

Justice Erle, who said in R. vs. Baldry, 2 Den Cr. C. 445:

“According to my judgment, in many cases where

confessions have been excluded, justice and common

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Argument

sense have been sacrificed, not at the shrine of mercy,

but al the shrine of guilt. In 12 Cox Cr. 180. C. B. Kelly

said: ‘The cases excluding confessions on the ground

of unlawful inducement have gone too far for the pro-

tection of guilt.” Justice Hayes in 15 Ir. C. L. 85, held

that the exclusion of lawfully obtained confessions was

‘an exhibition of morbid sensibility towards crim-

inals,’ ”

With reference to appellant's third question involving the

admissibility of testimony of the accused before a magistrate

at a preliminary hearing, the Commonwealth has this to say:

At or about the time the confessions were signed by the

two defendants. a hearing was had before Magistrate Ed-

ward Williams in the Central Station. City Hall, Philadel-

phia, Pa. D. Barlow Burke. Esquire. was present for the

Commonwea!th. Jasper Johnson, this appellant, was most

voluble and ready to testify. He was duly warned by the

Assistant District Attorney, as appears in the notes of that

hearing, and theresfter he testified fully.

In the case of Commonwealth v. Clark, 130 Pa. 641, 18 A.

988 (1889). Mr. Chief Justice Paxson said at page 650:

“The law is alwavs tender and merciful to a defen-

dant. It will protect him against the use of a con-

fession drawn from him by holding out inducements

to make it: but, when a criminal wants to ease his mind

by a voluntary confession. it would be a weak senti-

mentalism to interfere with his doing so. Nor dol see

that its force as a statement is impaired by the fact

that the Justice of the Peace administered an oath to

him.”

And Mr. Justice Paxson continued further at page 651:

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“The fact must not be overlooked that a defendant

in a homicide case may now take the stand and be

sworn as a witness in his own behalf. There would

seem to be no good reason why he may not, of his own

motion, go before a magistrate, and make a voluntary

statement under oath. It is quite a different matter

where the oath is administered against his will.”

In the case of Commonwealth v. Spardute, 278 Pa, 37.

122 A. 161 (1923), at page 47 thereof, Mr. Justice Schaffer

said:

“It did not invalidate his confession that he was

sworn,

“The mere fact that the defendant was under arrest

or was in the charge of armed police officers when he

made his confession, will not make a confession in-

voluntary.”

In Underhill On Criminal Evidence, 2d, ed., Section

132, page 256, the following is said upon the fact that an

accused person may be sworn before a magistrate:

——

“The preliminary examination of an accused person

has for its main objects the perpetuation of the testi-

mony against him, the ascertainment if he shall be held

to await the action of the Grand Jury, and if so, whether

he shall be admitted to bail. When the accused is

brought before the justice, the latter must, as soon as

possible, examine the witnesses for and against him

under oath. The accused must be present when this

evidence is received, though the Examining Magis-

trate may exclude all witnesses except the one who is

testifying. The accused may be sworn at his own re-

quest, and examined as a witness in his own behalf,

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Argument

under the restrictions which apply to the examination

of defendants in criminal trials. (Italics ours.) He

should, in justice to himself, be informed of his right

to refrain from testifving. He should be told that he

need not answer any questions, and that his silence or

expressed refusal to answer incriminating questions

cannot be used against him on his trial. After thus

having been warned, anything he may say in the na-

ture of a confession and which is not under oath. mav

be used against him on his trial. And where having

been instructed as to his right to remain silent at the

preliminary examination, if he so desires, he voluntarily

goes on the witness stand and, wider oath. testifies to

his version of the facts in the case, a nything he may say

of an incriminating nature under such circumsiances,

though he is under oath, may be used against him sub-

sequently as his confession.” (Ttalies ours. \

As previously argued, there was no duty upon the Com-

monwealth to supply the defendant with the benefit of

assistance of counsel at the magistrate’s hearing.

Mr. Justices’orace Stern, in attiresitry the Judgment in

the Supreme Court of Pennsylvania, Commonwealth vs,

Johnson, 365 Pa. page 303, 374 A. 2nd 144 said:

“OPINION OF THE COURT.

(Filed June 26, 1950.)

HORACE STERN, J.

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 trio!

court of his motions for a new trial and in arrest of

judgment.

According to the Commonwealth. Aaron Turner,

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Johnson, and Clarence Lofton conspired to perpetrate

a robbery at the Ace Broom Company factory in Phila-

delphia on December 15, 1945. Lofton stood 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 lving on the floor Johnson

went through his pockets and extracted a wallet con-

taining 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 lving 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

'o a taproom where they had several drinks and divided

the spoils. Johnson wos 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 plave in 1947, he denied that he had

participated in any way in the robbery 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

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to testify concerning his autopsy on the body of Sim-

mons 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 robbery 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 John-

son'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 Com-

monwealth and testified to by the detectives them-

selves. 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 sue.

gested by the district attorney that his cooperation with

the Commonwealth came after finding owt 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 fer trial in

court, and he was assured that he would then be rep-

resented by an attorney appointed by the court. Fx-

cept 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

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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 com-

plaint to the magistrate or to the prison authorities that

he had suffered any such beatings, nor did he seck the

services of the jail physician: his assertion, therefore

that he was beaten is, to say the least. of dubious ver-

acitv and was obviously rejected by the jury. The

learned trial judge instructed the jurv that. if force or

duress of any kind had heen exerted upon him to com-

pel him to make a statement. a confession so obtained

could not be used in evidence against him and that the

Jury should discard jt 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

five 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

Spardute, 278 Pa. 37, 48. 199 A. 161. 165; Common

wealth +, Jones, 341 Pa, 541. 548, 549, 19 A, 2d 399. HO:

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 emploved by the police authorities to obtain

the confession constituted a violation of the due process

clause of the fourteenth amendment of the constitr.

tion,

Johnson's principal contention on this appeal is that

his signed confession should pot have been admitted

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In evidence because. apart from the alleged, but con-

troverted, beatings, he was held for four or five days

after his arrest before being taken before 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 there-

fore proceed to examine.

In Ziang Sung Wan v. United States, 246 U.S. 1. the

accused, a very sick man. was subjected to persistent.

lengthy cross-examination day and 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 confes-

sion obtained from him after twelve days of such

methods was held inadmissible in evidence.

In Brown r. 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 con-

viction which rested solely upon a confession thus ob-

tained was void under the due process clause of the

fourteenth amendment.

In Chambers vy. Florida, 309 U. §. 227, the accused.

under a haunting fear of mob violence, was subjected

to persistent and repeated questioning almost continu-

ously 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 morn-

NTER

Argument

ing alter the all-night vigil was held to be compulsory

and the conviction obtained by its use was set aside.

In White v. Texas, 310 U. S. 530, the accused was

kept in jail for six or seven days, and on several suc-

cessive 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

5.30 o'clock in the morning. The confession then ob-

tained was held to have been coerced and its use at

the trial a violation of the due process clause of the

fourteenth amendment.

In Lisenba rv. California, 314 U. S. 219, the accused

Was questioned on two occasions at the district at-

torney's office,-once throughout the night and again

the following night from early evening until 3 o'clock

the next morning. After being detained in custody for

eleven days, during which time he was not examined,

he Was again interrogated and, after a protracted in-

quisition, finally confessed at 3 o'clock in the morning.

Although his detention was illegal under the state law

it was held that the confession was voluntary and its

use at the trial was proper,

In Ward v. Texas, 316 U. S, 547, the accused. after

being arrested, was driven around during three days

and nights from county to county, incarcerated in a

place more than a hundred miles from his home. ques-

tioned continuously, and frightened with threats of

mob vielence. It was held that the use of the confes-

sion obtained under such circumstances was a denial

of due process and voided the conviction.

In MeNabb rv. United States, 318 U. S. 332. the ac-

cused persons were detained in a room where there

was nothing they could sit or lie down on e ‘cept the

floor. On two successive nights thev were questioned

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SS TE er et

eE7_OoOsOsOm~—=—HS... te

Argument

on and off by at least six olticers, beginning at 9 o'clock

and continuing until 1 or 2 oclock in the morning. It

was held that the evidence thereby elicited should have

been excluded, [i was emphasized in the court's

opinion, however, that the trial was in a federal, not a

state, court, and therefore the question did not depend

upon the application of the due process clause of the

constitution but on the exercise of the court's super-

Visory authority over the “dministration of criminal

justice in the federal courts and the rules of evidence

formulated by it for application in federal criminal]

prosecutions,

In Anderson r. United States, 313 U. S. 350, the ac-

cused persons were detained in Violation of the state

statute and questioned intermittently all day over a

period of six days in the hostile atmosphere of a small

company -dominated mining town, the interrogations

finally resulting in the obtaining of INCTIMINATINY state-

ments. These were held inadmissible in evidence, not,

however, on the sround that they failed to meet the

requirements of the due Provess clause, but, as in the

McNabb case, because thev violated the rules of evi-

dence applied by federal courts in the trial of criminal

cases. (See Townsend . Burke. Warden. 334 U.S, 736.

738; United States UW. Mitchell, 329 U. S. 65, 67. 68. In

the latter case it was pointed out that the review by

the United States Supreme Court of stat. convictions

presents a very differeyt situation from that of CASES

dealing with the admissibility of evidence in criminal

cases in the federal courts: the court said that “in cases

coming from the state courts in matters of this sort

we are concerned solely with determining whether a

confession is the result of torture, physical or psvcho-

Argument

logical, and not the offspring of reasoned choice.”: sce

also Malinski v. New York, 324 U. S. 401, 411).

in Asherajt v. Tennessee, 322 U. S. 143; 327 U.S. 274,

the accused was placed at a table in the jail with a

powertul electric light over his head which blinded

his eyes, and he was questioned by relays of detectives

from a Saturday evening at 7 o'clock until the follow-

ing Monday morning at approximately 7 o'clock, during

which time he was not allowed to have any sleep or

rest. The confession thereby obtained from him. as

Well as testimony narrating what took place during the

inquisition, was held to be involuntary and inadmissible

in evidence. and the conviction was reversed.

in Lyons v. Oklahoma, 322 U. S. 596, it was held that

“ confession wa lidly obtained and admissible in

evidence althouzh the accused had been interrogated

on one oc ) tor two hours and again, after eleven

Gays ol further incarceration, from about 6.30 o'clock

in the evening until between 2 and 4 o'clock the fol-

lowing morning, and later also that same evening, a

large number of police, prosecuting and penitentiary

officials being present during the interrogation and no

counsel having been supplied to him.

In Malinski vr. New York, 324 U. S. 401, the accused

was stripped and kept naked in a hotel room from 11

oclock in the morning until 6 o'clock in the evening

and was then detained there for several more davs

during which time he was subjected to guestioning:

subsequently he was also questioned at a police station

until 2 o'clock in the morning. The district attorney

said at the trial that the police procedure had been

quite proper in letting Malinski “sit around with a

blanket on him, humiliate him there for a while: let

him sit in the corner, let him think he is going to get

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Argument

a shellacking.” From this admission on the part of the

prosecuting officer the court concluded that an oral

confession obtained from the accused was the product

of fear, was clearly coerced, and had therefore been

improperly admitted in evidence.

In Haley v. Ohio, 332 U. S. 596, a 15-year-old boy was

subjected to questioning by relays of police from shortly

after midnight until about 5 o'clock the following morn-

ing when he confessed. He was then detained for three

days during which period a lawyer retained by his

mother tried to see him twice but was refused admis-

sion by the police, and his mother also Was not allowed

to see him. The court said that the boy's age, the hours

when he was grilled, the duration of his quizzing, and

the fact that requests to have counsel and his mother

advise him were denied. all showed that the confession

had been wrung from him by methods which could

not be sanctioned and which Violated the due process

clause of the fourteenth amendment.

In Townsend » Burl Warden, 334 U. S. 736. the

court reversed a conviction oecause the trial judge im-

posed sentence, in the ab ence of the prisoner's coun-

Sel, under an obvious rvistake as to the prisoner's pricy

criminal record. Tue prisoner had been held incom-

municado for a period of 40 hours between his arrest

and his plea of guilty, but the court Stated (p. 738)

that “lawfulness of the detention is not a factor in

determining admissibility of any confession * * *" :

In Watts v. Indiana, 338 U S. 49, the accused was

interrogated at police headquarters by officers in re

lays from about 11.30 o'clock one night until between ;

2.30 and 3 o'clock the following morning, and the next ;

afternoon from about 5.30 o'clock until 3 o'clock the

following morning, and the questioning was con-

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Argument

tinued for four successive days; on the fifth day the

prisoner made an incriminating statement at 3 o'clock

in the morning after having been continuously ques-

tioned since 6 o'clock of the preceding afternoon. He

had been kept the first two days in solitary confine-

ment in a cell “aptly enough called ‘the hole’.” Apart

from the several night sessions the police had inter.

mittently interrogated him during the day, and also.

on three days, had driven him around town hours at

a time with a view to obtaining information from him

respecting the crime. He had been denied proper

opportunities for sleep and a decent allowance of

food. The court held that the use of the confession

thereby obtained was a Violation of the due process

clause and accordingly the conviction was reversed,

In Turner wv. Pennsylvania, 338 U. Ss. 62, in which

case the accused was one of the three persons im-

plicated in the crime here involved, he was imprisoned

between the time of his arrest and the magistrate’s

hearing during exactly the same period as Johnson.

During that time he was examined on June 3 for

three hours in the afternoon and again that night

from 8 to 11 o'clock: on June 4 he was questioned for

about four hours more: on June 5 he was interro-

gated for another four hours and on June 6 during

day and night sessions totaling six hours: on June 7

the questioning began in the afternoon and continued

for three hours, and later that day was resumed unti]

finally, at about 11 o'clock that night, he admitted

guilt. and at 9 o'clock the following morning his

statement was reduced to writing. It was held that the

confession was coerced and should not have been ad-

mitted in evidence,

In Harris ». South Carolina, 338 U. § 68. the ac.

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Argument ;

cused, in the stifling heat of the cubicle in which the

interrogation was conducted. Was questioned morn-

ings, afternoon and evenings for several days, on one

occasion from 1.30 in the afternoon until past 1 o'clock

the following morning with only an hour's interval at

5.30 o'clock. The sheriff, one of the interrogators,

threatened the prisoner that he would arrest his mother

for handling stolen property. It was held that a con-

fession thus obtained should not have been used at

the trial of the accused and his conviction was re-

versed.

The above cited cases are. if not the only, at least

the more important ones decided by the United States

Supreme Court, and from them it is possible to formu-

late certain principles. One is that a confession may

have been given voluntarily although it was made to :

police officers while in custody and in answer to an

examination conducted by them: Ziang Sung Wan v.

United States, 266 U.S. 1, 14; McNabb v. United States, :

318 U. S. 332, 346; United States ». Mitchell. 299 1" S.

65, 69. Another is that the effect of the mere denial

of a prompt preliminary examination is a matter of

state, not of federal, law and to refuse it does not con- i

stitute a violation of the fourteenth amendment al-

though it is one of the facts to be considered on an i

allegation that a confession used at the trial was '

coerced: Lyons pv. Oklahoma, 322 U. S. 596, 597, 598,

footnote 2. And a third is that in cases where the :

evidence as to the methods employed to obtain a con- ' &§

fession is conflicting,that is to say, where there is , }

dispute as to whether beatings, whippings, or other

acts of brutality actually oceurred,and that issue has

been resolved by the trial court and Jury, the appel-

late court will accept the determination of the triers

ITER

a LE eee ee sree : .

Argument

of fact if there was any substantial evidence to support

their conclusion: Lisenba v. California, 314 U. S. 219,

238; Ward v. Texas, 316 U. S. 547, 552: McNabb v.

United States, 318 U. S. 332, 339, footnote 5: Lyons r.

Oklahoma, 322 U. S. 596, 602: Haley v. Ohio, 332 VU. S.

596, 597, 598.

Measuring, then, the facts in the present case, so far

as they are admitted by the Commonwealth. by the

standards thus formulated by the Supreme Court, it

should be readily apparent that none of the circum-

stances attending Johnson's confession, either singly

or collectively, established that it was coercively ob-

tained and that its admission in evidence at the trial

therefore constituted a violation of the constitutional

protection of due process of law. None of the lurid

features which characterized the sther cases marked

any of the treatment acrorded to Johnson: there was

no violence, no threats or inducements of any kind,

not even any resort to artifice to procure a confession.

All that can be said is that (1) he was detained for a

period of five days before being given a preliminary

hearing: (2) ne counsel was assigned to him nor com-

munication established with friends or relatives; (3) he

was subjected to questioning from time to time by

groups of deiectives. As to the detention prior to the

magistrate’s hearing, which, as previously stated, is

admittedly a matter of state law. there is no statute

in Pennsylvania which stipulates any precise time in

which such a hearing must be held! Furthermore.

'The Act of April 20, 1869, P. L 1187, merely provides that, in

Philadelphia, the preliminary hearing of the person arrested must

be before the magistrate whose office 1s nearest to the place of arrest:

this was 7 to prevent a selection by the police of a “favorable”

magistrate. It was not intended to mean, and has never been held

to mean, that the person arrested must be taken before the magistrate

immediately upon being apprehended. At common law no preliminary

hearing whatever was r uired; it is an institution resting entirely

on statute: 22 C. J. S, 484, $232/a)

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Argument

#s Was said in Commonweuith ¢. Algoston, 364 Pa. 464,

479, 72 A. 2d 575, 583: “Such a delay in granting a

defendant a preliminary hearing cannot properly be

adjudged a denial of due process. If the delay is due

to the fact that the time between the arrest and the

hearing is spent in attempting by improper means to

force a confession from a prisoner, the wrong done

the prisoner is not the delay in giving him a hearing,

but the methods used to secure a confession * * *, A

confession may be secured from a prisoner by unlawful

methods one hour after his arrest and he may be given

a hearing one hour after that, but the promptness of

the hearing would not make his confession admissible,

On the other hand a defendant may not be given a hear-

ing for ten days after his arrest. vet during that

period he might voluntarily confess his guilt without

any questions whatever. The delay in giving him a

hearing would not make his confession inadmissible.”

As to the fact that defendant was not represented

by counsel during the period of interrogation, it might

well be that, if he had requested such representation

and counsel had nevertheless heen denied him, his

rights would have been gravely infracted: Common-

wealth v. Spardute. 278 Pa. 37, 46, 122 A. 161. 164:

Commonwealth v. Jones. 34] Pa. 541, 548. 19 A. 24

389, 393. Here, however, no such request was made,

but only an inquiry as to whether counsel would be

assigned to him at the trial}. There is no provision in

the law of Pennsylvania that « person arrested, even

though on a charge of murder, must be supplied with

counsel as soon as he is taken inte custody. The Penn-

Sylvania statutes provide for assignment of counsel

upon the trial of a capital crime (Act of May 31. 1718.

1 Sm. L. 105, IV) or to any person under indictment

een —

Argument

tor murder, to represent him at the trial (Act of March

22, 1907, P. L. 31). The decisions of the United States

Supreme Court are to the effect that counsel must be

assigned for the defense of the accused in capital

Cases alter indictment, or at least at the time of ar-

raignment: Powell v. Alabama, 287 U. S. 45; Tomkins

v. Missouri, 323 U.S. 485; Hawk v. Olson, Warden, 326

U.S. 271; DeMeerleer v. Michigan, 329 U. S. 663. Cer-

tainly due process has never been held to require that

the State should provide a suspect with counsel! from

the very moment of his arrest: Commonwealth.

<\goston, 364 Pa. 464, 480, 72 A. 24 575, 583. As for

the fact that no relatives or friends visited or were in

touch with Johnson during the period of his detention,

he himself declared that he did not wish to see any

one except his “girl friend.”

All that we have left. therefore, in the present case

as affording any support whatever to Johnson's con-

tention is the questioning to which he was subjected.

But, unlike any of the cases in the United States Su-

preme Court previously discussed. there was here no

such “protracted, systematic and uncontrolled sub-

Jection of an accused to interrogation” (Watis v. In-

diana, 338 U. S. 49, 55) as could possibly be regarded

as physically or psychologically coercive in order to

obtain an inculpatory statement. The questioning of

Johnson was only at proper and normal hours—no late

night or early morning sessions——and each time ranged

in duration from only about 15 minutes to a maximum

“In Commonwealth v. Lenousky, 206 Pa. 277, 55 A. 977, it was held

that the testimony of a witness at a magistrate’s hearing could not

be used at the trial (the witness having meanwhile disappeared) he-

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Argument

of an hour and a half; whereas in the Turner case the

examinations covered a total of 23 hours during the

five days of his incarceration the total in Johnson's

case during the same period was only 6 hours,—an

average of scarcely more than an hour a day. While

it is true that on sume of the occasions several detec-

tives participated in the interrogation, there js nothing

to indicate—so far as the Commonwealth admits —that

there was any hectoring, badgering or threatening of

the accused, that he was ever denied rest or food, or

that he was subjected in any manner to physical dis-

comfort, Surely, therefore, it would be going further

than any case thus far decided to hold that Johnson’s

confession was coercively obtained. heither is it though:

that effective enforcement of the criminal law would

be possible if a confession were to be held inadmis-

sible when obtained by even such a limited amount of

questioning of a suspect while being detained for a rea-

sonable period prior to a preliminary hearing: see Wig-

more on Evidence, 3rd ed. vol. ITT, p. 320, 6351.

Johnson contends that the confessions of Turner

and Lofton, who were associated with him in the com-

Mission of the crime, should not have been admitted

in evidence. It js true, of course, that the declarations

of a CO-cOnspirator are evidence against the others

only so long as the Conspiracy continues, and if made

afterwards they are not admissible: Wagner v. Aulen-

bach, 170 Pa, 495, 499, 32 A. 1087, 1088. Commonwealth,

v. Petrillo, 338 Pa. 65, 82. 83. 12 A. 2d 317, 326. But

appellant misconceives the theory on which those con.

fessions were introduced in the present instance. They

were not admitted, as the trial judge correctly jy.

structed the jury, as proof of the facts contained therein.

but, under the familiar, well-established principle of

ENTER

Sm ee ee ee eee Sr ewer - ae

Argument

the law of evidence, as statements made in Johnson's

presence and hearing which, though incriminating in

character and naturally calling for a denial, were not

challenged or contradicted by him although he had an

opportunity and was at liberty to speak. The fact of

his failure io deny the accusations against him con-

tained in the confessions of his confederates was ad-

missible in evidence as an implied admission of the

truth of the charges thus made, on the theory that

ordinarily an innocent person will spontaneously repel

false accusations against him, and that failure so tc do

is, therefore, some indication of guilt. It is quite im-

material, therefore, whether the statements made by

Turner and Lofton were themselves freely made or

otherwise, since the probative force of such an accusa-

tory statement is derived, not from the credibility of

the accuser, but from the silence of the accused in

response to it: Commonwealth v. Carelli, 281 Pa. 602.

606, 127 A. 305, 306; Commonwealth v. Vallone, 347 Pa.

419, 421, 32 A. 2d 889, 890. Not only did Johnson not

attempt to refute anything contained in the statements

of Turner and Lofton, but he added his own signature

thereto as a witness without. according to the Common-

wealth’s evidence, any compulsion whatever. This was

an affirmative act which added to the effect of his

tacit acquiescence: Commonwealth rv. Brooks, 355 Pa.

551, 554, 50 A. 2d 325, 327.

Finally, appellant complains that his testimony be-

fore the magistrate at the preliminary hearing should

not have been accepted in evidence. He claims that he

Was intimidated into making the same admissions there

as were contained in his written confession, but this

was emphatically denied by the Commonwealth’s tes-

timony; on the contrary, there is convincing evidence

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Argument

to the effect that he expressed a desire to go to the

magistrate’s hearing and to testify there, and that he

was sworn at his own request after being warned by

the district attorney that anything he said might be

used against him in court and that he did not have to

Say anything if he did not want to. His testimony on

the witness stand in the office of the magistrate was

substantially in accord with the account he had given

in his written confession of the details of the robbery

and the extent and manner of his participation therein.

The crime of which appellant stands convicted was

an extremely dastardly one, and. in our opinion. he

was not denied due process of law nor was any of his

other constitutional rights impaired: therefore ho js

not entitled to a new trial.

Judgment and sentence affirmed.

Dissenting opinion by Jones, J.”

It is respectfully requested that the writ of certiorar

to the Supreme Court of the Commonwealth of Pennsy1-

vania be refused.

COLBERT C. McCLAIN.

Assistant District Attorney,

JOHN H. MAURER.

District Attorney.

Attorneys for Respondent

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Appendix

Sworn testimony of defendants J asper Johnson, Clarence

Lofton and Aaron Turner before Magistrate E¢ward Wil-

liams, held in Centrai Police Court, City Hall, Philadelphia,

Pa., on June 8th, 1946.

COMMONWEALTH'S EXHIBIT.

(The following is a copy of the transcript of testimony

taken at the magistraie’s hearing, referred to in the fore-

going proceedings ) :

IN THE

MAGISTRATES’ COURTS OF PHILADELPHIA.

CENTRAL POLICE COURT.

(City Hall. ;

CoMMONWEALTH

Vv.

CLARENCE LOFTON, JASPER

JOHNSON, AARON TURNER

Homicide: Robberv: Bur-

glarv: Conspiracy to Com.

mit Felony

Philadelphia, Pa.. June 8, 1946.

TER

Commonwealth's Exhibit —Lieutenant

James Kelly—Direct

Before: HON. EDWARD WILLIAMS, Magistrate.

PRESENT:

D. BARLOW BURKE, Esq.. A. D. A.. for the Common-

wealth.

LIEUTENANT JAMES KELLY, sworn:

BY MR. BURKE:

Q. Lieutenant Kelly, did you make the investigation in

the case of these three men?

A. I did.

Q. Proceed, please.

A. On December 15, 1945, at 355 North 2nd Street, at

the Ace Broom Factory, an assault took place at about 4:45

in the afternoon, and as a result of the assault two persons

died, one known as Charles Simmons and the other known

as Frank Enders. Enders was 6? years of age and Simmons

was 52 years of age. As a result of the investigation at

that time, it was determined that in addition to the homi-

cide, there was also a robbery involved, the amount of

money taken we were unable to determine. So, as a re-

sult of a further investigation, these three defendants were

arrested, Clarence Loftor, the No. 1 man. Jasper Johnson.

the No. 2 man, and Aaron Turner, the No. 3 man. These

men have made statements to the police, setting forth the

part each one took in this particular case.

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pres

, 3a

Commonwealth's Exhibit—Jasper Johnson

—Direct

@. Does each one admit in his signed statement that he

was involved in the homicide?

A. They do, sir,

Q. Are the statements here, Lieutenant”

A. No, sir,

Q. Any further testimony from an officer?

A. No, sir,

MR. BURKE: Do any of vou men want to Say anything

this morning? I want to warn you in advance that anv-

thing vou sav may be used against vou in Court, and that

you don't have to say anything if vou don't want to. |

understand, however, that you have made Statements to

the officers and signed those Statements. Jasper Johnson,

you have made a signed statement to the officers?

JASPER JOHNSON: Yes, sir.

MR. BURKE: Do vou want to say anything this morn-

ing?

JASPER JOHNSON: Yes. sir.

JASPER JOHNSON. Co-Defendant, sworn.

BY MR. BURKE:

Q. Now, what’s your name?

A. Jasper Johnson.

=NTER

Commonwealth's Exhibit—Jasper Johnson

—Direct

Q. Are you also known as “James Johnson,” “Fats” and

“Playboy”?

A. Yes, sir.

Q. What is your residence”

A. 620 South 13th Street

Q. You have heard the testimony of Lieutenant Kelly

before his Honor this ™ernine?

A. Yes, sir.

Q. Do you want to add anything to that?

A. Yes, sir.

Q. Were you connected with the activities that Licu-

tenant Kelly testified to?

A. Yes, sir.

Q. Were vou involved in the homicide of Charles Sim-

mons and Frank Enders?

A. Yes, sir.

Q. What part did you play in that?

A. December 15th, at 12th and Bainbridge, Aaron Turner

and Clarence Lofton came to 12th and Bainbridge and got

me. “Treetop” said to me —— |

Q. Who is “Treetop”?

A. Aaron Turner—said to me: “Come on. Fats, and go

with me. I'm going to get some money.” TI said to Treetop,

I said: “I don't mind going, but I don’t want no trouble.” u

He said: “There were no trouble. Come on.” We goes to

12th and South from 12th and Bainbridge, and stopped be-

tween 5th and 6th at a hot-dog stand and gets a couple of b

sandwiches apiece. We leave there. We goes to 2nd Street. 8

We goes to start, and I had been drinking and was begin- T

ning to get sick. So, Clarence said: “Treetop, if its much

further, we'll catch a trolley.” Treetop said: “We don't

have much more to go, so we'll walk on down.” So, we

walked to 2nd and Callowhill. Treetop says to Clarence:

COPY BOUND CLOSE |N CENT

Commonwealth's Exhibit—Jasper Johnson

—Direct

“You wait on the highway.” Treetop and I goes in the first

door together. We goes in the first door together and gets

on the inside, Treetop had a package in his pocket, and a

pipe wrapped up in newspaper.

Q. A package? What kind of a package?

A. A piece of sash-weight wrapped up in paper, about

eight inches long and about that round (indicating about

one inch). We gets to the first door. Treetop gets ahead.

Q. Did you follow him in?

A. I follow him in. He gets one of the guys. The smallest

guy he slugs. I don't know how many times he slugged him.

Q. Did you see that?

A. Yes, sir. After Treetop slugs him, ] gets in his pocket

and gets his wallet. I was trying to get it out of his hip

pocket. I slings the wallet in the building. where I don't

know. So, when I looks around, Treetop and this other

guy is tussling.

Q. You saw him tussling with another man?

A. Another white man. So, after I got through mine, I

looks around and said: “Let's go.” So. I leave out running.

Treetop follows.

Q. You mean vou left the place?

A. T left running. Treetop follows: After Clarence sees

us running, Clarence follows us.

Q. What was Lofton doing?

A. He was the watchout man. He never entered the

building. So, we goes on down the street. We get near

8th and Callowhill. somewhere close by. I look at the money,

I don’t know exactly how much, it looks like $175.00.

Q. You testified before that vou threw the wallet away?

A. I takes the money out before I threw it away. So, I

takes $50.00. I hand the other to Treetop. Treetop gave

-NTER

PORE RET uy ates

Commonwealth's Exhibit—Jasper Johnson

—Direct

Clarence some money. I don’t know how much. So, after

Treetop gives Clarence the money ——

Q. Did you see him give Clarence the money?

A. I saw him, but I don’t know how much. I] savs to

Treetop: “How much—what did you get off the other fe|-

low?” He says: “Nothing.” We goes to 8th and Callowhill

and gets a couple of large drinks. Treetop goes in the bath-

room and comes out. We catch an 8th Street trolley and go

back downtown to 12th and South. We get a couple of

drinks in there and goes from 12th and South to 12th and

Bainbridge, where I met him, and get a couple more drinks

and splits up there.

@. Up until then you had been together?

‘A. That's right. The next what was said, Treetop said

to me and Clarence: “Anybody gets arrested, you don't

know me and I don’t know you.”

Q. Who said that?

A. Aaron Turner —“Treetop.”

(. Then what happened?

A. That's all. We split up.

«. How about this second man in the room?

A. Treetop had him.

Q. What was he doing to him?

A. When I looked around, him and Treetop was tussling.

Q. Did vou see Treetop slug him?

A. I saw some blood.

®. Did Treetop still have this object in his hand?

A. I'm not sure whether he had that sash-weight at that

time or not.

Q. Did you see Treetop slug him, the second man? —

A. That’s right. J

Q. Was the first man on the floor at the time?

COPY BOUND CLOSE INC

Commonwealth’s Exhibit—Clarence Lofton

—Direct

A. Yes, sir, he was on the floor, and J was trying to get in

his pocket.

Q. Was he lying on the floor when you three left”?

A. Yes, sir.

Q. Anything else you can add?

A. No, sir.

CLARENCE LOFTON, Co-Defendant, sworn.

BY MR. BURKE:

Q. You've been told that everything vou say may be

used against you, and that you don’t have to speak unless

you want to. However, I’m going to give you the opportun-

ity of speaking if vou want to. You have just heard the

story of Jasper Johnson. Anything you can add to that?

A. No, sir, I haven't anything to add to it.

Q. Were you there when these events happened?

A. Yes, sir. He just about covered everything. I was

there, and was standing outside watching.

Q. You corroborate what he has said?

A. That's right.

‘oe oe on

oe |

Commonwealth's Exhibit—Aaron Turner

—Direct

AARON TURNER, Co-Defendant, sworn.

BY MR. BURKE:

Q. Do you want to say anything to his Honor?

A. No, sir.

Q. Can vou add anything?

A. No, sir.

Q. You don’t want to add anything. Do you agree with

the testimony that these two men have given in Court?

A. Yes, sir.

Q. You corroborate their testimony?

A. Yes, sir.

Q. You say that it’s true?

A. Yes, sir.

Q. You're not denying anything that they said?

A. No, sir.

Q. How much money did vou get in this?

A. I don’t know.

Q. About how much?

A. I would say $175.00.

Q. Did vou divide up with the others? Was that $175.00

that which you, yourself, got out of the thing?

A. Yes, sir.

Q. Was that in addition to the $50.00 that one got and

the $175.00 the other got?

No, sir.

That's vour share?

Yes, sir.

You got $175.00 vourself?

Yes, sir.

POPrO>

COPY BOUND CLOSE IN CE.

Commonwealth's Exhibit Clarence Lofton

Direct—-Jasper Johnson Direct

CLARENCE LOFTON , recalled j,

BY MR. BURKE:

Q. Will you tell his Honor how much you got out of this?

A. About $87.00 is what he gave me.

Q. That was given to vou by “Treetop” Turner?

A. That's right.

JASPER JOHNSON (recalled).

BY MR. BURKE:

Q. How much did you get?

A. $50.00.

Q. How much was in the wallet?

A. I estimated about $175.00. I wasn't sure.

Q. Whom did you get that from?

A. The first white fellow in the building he slueged, |

passed it to Treetop.

MR. BURKE: Your Honor, I think a prima facie case

of homicide, burglary and robbery has been established

against these three defendants, and I'm going to ask that

you hold all three without bail for the action of the Grand

Jury.

LIEUTENANT KELLY: I might add that there hac

been a Coroner's inquest in this matter. at which time the

_NTER

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~ STR PAP RI ERENCE gee 5 004

Deer nome

lUa

Commonwealth's Exhibit—Jasper Johnson

—Direct

finding was that the deaths resulted at the hands of a person

or persons unknown.

MR. BURKE: I think, your Honor, that these members

of the Detective Division are to be commended for a very

fine piece of detective work in cleaning up this mysterious

murder. They ought to be commended for it, and I would

like to go on record as saving it.

THE COURT: I think the same way. Without bail for

Court.

| hereby certify that the proceedings and evidence are

contained fully and accurately in the notes taken by me on

the hearing of the above cause, and that this a correct tran-

script of the same.

(Sgd.) DAVID F. HOULIHAN, JR.

Stenographer.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.