Opinion by
Uрon each of two indictments James Morris Johnson was convicted by a jury of murder in the first degree with penalty fixed at life imprisonment. His motions for new trial and in arrest of judgment were dismissed and this appeal is from the judgment and sentence imposed in accordance with the verdict.
This was defendant’s second trial. At his first trial he was convicted of murder in the first degree with penalty of death but upon appeal this Court set aside the conviction for trial errors and awarded a new trial:
(Commonwealth v. Johnson,
The defendant was indicted under Section 919 of The Penal Code of June 24, 1939, P. L. 872, which provides, inter alia, that whoever wilfully and maliciоusly removes or displaces any rail of a railroad, is guilty of felony, and in every case where the life of a human being is destroyed by, or as a result of any of such acts, the offender “shall be deemed guilty of murder in the first degree”. 1
The facts in the case are summarized in the opinion of the Court in the prior appeal, but they will be recounted and amplified here: On May 9, 1948 at 8:55 p.m. (Eastern Daylight Saving Time), a passenger-train of The Beading Company consisting of an engine, tender, baggage car and four coaches, was proceeding eastwardly from Allentown, Pennsylvania to Philadel *269 phia on the southernmost of four tracks, and became derailed and wrecked at a point in Montgomery County about one and one-third miles east of Valley Forge Station, and approximately midway between that station and the next station to the east, Port Kennedy. The engineer and fireman of the train were killed and it was with their deaths that the defendant was respectively charged in the two indictments. An investigation disclosed that a section of the track at the point mentioned had been tampered with and a number of spikes and tie plates removed from the rail; the window of a railroad tool house about a mile distant from the scene of the wreck had been broken into and a wrench and a tool described as a claw-bar were missing. Because defendant had been convicted in 1940 in the State of Delaware of the crime of “obstructing a railroad”, suspicion was directed toward him. He had been sentenced there to a term of ten years in prison but released after serving seven years. In November, 1948 he was located in Edgefield, South Carolina. On November 7th, Pennsylvania police authorities went there and found that he had been picked up by a State Policeman for a traffic violation and was being held in jail for illegal entry. One of the officers from Pennsylvania, Lieutenant Smith of the Reading Police, possessed a warrant for the defendant, issued out of Chester County, Pennsylvania, for a violation of parole. The local South Carolina authorities surrendered their custody of the defendant who then willingly returned by train to Pennsylvania with the officers, the party arriving at Philadelphia on November 9th. En route the officers inquired of defendant as to his whereabouts on May 9, 1948, the date of the train wreck. He told the officers that he had beеn in Pocomoke City, Maryland the morning of that day and had spent the night in Middletown, Delaware. To *270 check the accuracy of the defendant’s statements, on the next day, November 10th, three of the officers went with the defendant by automobile to Middletown, Delaware. The defendant’s statement as to his whereabouts was not substantiated. The party motored back the same day to Norristown, Pennsylvania where defendant admitted tearing up the track. The following day, November 11th, he was taken to the district attorney’s office where, after questioning by the district attorney, he signed a statement admitting the displacement of the rail. This statement was taken stenographically in question and answer form, each page of which the defendant signed after making two corrections in his own handwriting. The following day, in the company of police officials and representatives of the public press, he went to the place where the train was wrecked and reenacted the crime. Upon returning to the district attorney’s office, he made a second statement upon questioning by the district attorney which was taken down stenographically in question and answer form, each pagе of which he also signed. On November 13th the defendant was given a preliminary hearing on the charge of murder. He did not deny the charge but .wanted to know why he was to take the blame when there were supposed to be “two or three other fellows” involved. In his first written statement defendant indicated that he had accomplices. When questioned after the preliminary hearing, he stated that he could not recall the names of these alleged accomplices. The Commonwealth claimed he alone had perpetrated the crime and conjured up the story of aсcomplices to minimize its enormity.
In support of this appeal appellant makes several contentions: (1) that his convictions were not obtained in accordance with due process of law and were therefore invalid; (2) that the trial court erred in admitting *271 into evidence prior convictions to aid the jury in determining the penalty where a verdict of murder in the first degree might be rendered; (3) if such prior convictions were admissible, they were not properly proven; (4) the learned trial judge erred when he charged the jury that there is no obligation to warn an individual of his constitutional rights where he has not been charged and there is no legal proceeding pending; (5) that the verdict of murder in the first degree with penalty of life imprisonment was not predicated upon legally sufficient and competent evidence.
(1) Considerably more testimony was adduced by both the Commonwealth and the defendant at his second trial, but after a searching scrutiny of the record we can repeat as applicable to defendant’s first contention on this appeal much of what was said in the opinion of the Court in the earlier appeal (
Appellant now argues that his oral and written confessions were not admissible because made when he was detained in alleged unlawful custody. It was the defendant who developed the fact that one of the officers was armed with a warrant for the defendant’s apprehension because of a parole violation in Pennsylvania. But even if his detention was illegal, this would not of itself invalidate his confessions:
Commonwealth v. Turner,
Appellant also argues that his confessions were obtained through trickery and artifice in that he was not told of the deaths resulting from the displacement of the rail. It may be he might not have told what he did had he known of the deaths, but this does not af
*273
feet or detract from the truthfulness of his admission that he displaced the rail. It is not claimed that the police officers or the district attorney made any misrepresentations to him concerning the facts and circumstances surrounding the crime. The complaint is that the defendant was not told of the seriоusness of the offense as to which he was being questioned in the district attorney’s office. Even if this were deemed artifice, it manifestly was not designed or calculated to obtain an untrue confession; according to the testimony of two of the police officers, the defendant prior to the written confessions made at the district attorney’s office, volunteered that he had displaced the rail. “The object of evidence is to get at the truth, and a trick which has no tendency to produce a false confession does not render its truth less probable.”: Henry’s Pennsylvania Trial Evidеnce, 3rd Edition, p. 187. “. . . The object of evidence is to get at the truth, and a trick which has no tendency to produce a confession except one in accordance with the truth is always admissible.”:
The Commonwealth of Pennsylvania v. Edward Cressinger,
The story of the defendant as to his whereabouts on May 9, 1948, which caused the officers together with the defendant to go to Middletown, Maryland on November 10th to ascertain its truth, was that defendant had spent part of the night of May 9th sleeping in a church at that place until he was discovered by the minister. This minister, Keverеnd Peaco, who was of the defendant’s race, recalled the incident but said' when interviewed on November 10th, and testified at the trial that it occurred in the fall of 1947. Keverend Peaco testified positively not only from his recollection but from- a diary which he kept. The defendant did not deny at the trial that in the conversation between Mui and the minister which took place at Middletown during the interview on November 10, 1948, Keverend Peaco (who testified- he, Peaco, had been .informed, by the officers that there had been “a bad wreck”), told..the defendant to tell- the truth. Peaco testifiеd he said to; .the defendant, “ ‘You . tell the *275 truth. It will help you, because they are going to get the facts of when you were in our church, and if you tell the truth, it might help you’ ”. Obviously this admonition did not relate to defendant’s parole violation. Eeverend Peaco further testified that when the defendant found that he, Peaco, could not support defendant’s statement that he had been in the church on May 9, 1948, he noticed “a very noticeable change in the defendant”. Officer Smith who was present at this interview said the defendant “sort of slumped”. Defendant’s witness, Samuel Miller, a former employer of defеndant in Delaware, testified on cross-examination that in July of 1948 he told the defendant “ ‘I have heard — I have read in the paper, rather, that they are looking for you, possibly that you are responsible for some wreck that happened.’ ”; and that two or three weeks later defendant “left suddenly” without notice.
The foregoing testimony alone evidences that defendant knew he was being interrogated for an offense far more serious than parole violation, and bears adversely upon his asserted reason or “inducement” for his confessions. At his second trial now under cоnsideration, defendant ascribed his confessions to an “understanding and agreement” with one of the police officers. On cross-examination he testified: “Well, the conversation I had with him, it was understood with me that I was making a confession to attempting to move twelve of fifteen spikes, and that I would get some time up here and those charges in South Carolina would be forgotten.”. He admitted he had not mentioned such “understanding and agreement” at his first trial. Nothing like this was said according to the officer’s account of the conversation.
Whether an inducement was expressly made or impliedly created, and if it was, whether the inducement caused the defendant to make a false confession, were,
*276
under all the testimony, clearly questions for the jury:
Commonwealth v. Spardute,
supra;
Commonwealth v. Bryant,
(2), (3) Appellant claims that his prior convictions were not admissible into evidence, or if they were, they were not properly proven. As stated in our opinion in defendant’s prior appeal, it has been established by many decisions in this Commonwealth that following the Act of May 14, 1925, P. L. 759, which imрosed upon the jury the duty to determine whether the penalty for the crime of first degree murder should be death or life imprisonment, prior convictions are admissible as an aid in such determination. In the instant case the Commonwealth introduced into evidence docket entries of prior convictions attested by the court official in charge thereof and called the arresting officer in these prior offenses who identified the defendant as the person convicted thereof. The defendant did not question the authenticity of the docket entry records nor complain thаt he was not the same person charged with these prior offenses. On the con *277 trary by cross-examination of tbe Commonwealth’s witnesses he developed the facts surrounding his previous offenses of which he had pleaded guilty. Nevertheless it is claimed that the Commonwealth failed to properly prove the prior convictions which occurred in another state, by properly authenticated judicial records in accordance with the full faith and credit clause of the United States Constitution (Art. IV, Sec. 1) and the Act of Congress of May 26,1790, as amended by the Act of March 27, 1804; U. S. Rev. Stat. §905. In disposing of this contention the lower court said: “. . . The law referred to by defendant’s counsel, however, is the act which provides that if a certain procedure is followed certain record [s] must be given full faith and credit in another state. It does not mean, however, that they cannot be given such full faith and credit without following the Federal Act. . .
We deem it unnecessary to further discuss the legal question raised. Proof of prior convictions was admissible and could be considered solely for the purpose of having the jury fix the penalty at death or life imprisonment in case they first found the dеfendant guilty of murder in the first degree, and the jury was carefully instructed by the trial judge in this regard. Since the jury imposed the lesser of the two penalties, any error in the manner of proof of the prior convictions was harmless error.
(4) In his brief appellant states: “The learned trial judge was meticulous throughout this proceeding to insure a fair trial for the defendant, however, his statement that there was no obligation on the part of police officials to warn an individual of his constitutional rights when no legal proceeding is pending was prejudicial to this defendant. . . .”. After stating the law generally in his chаrge with respect to the constitutional rights of a person accused of a crime, the trial
*278
judge continued: “When you talk to a man, however, about the commission of a crime, and he is not charged, and at that time there is no legal proceeding pending, you don’t have to warn him that he doesn’t have to talk. Certainly you don’t have to warn him of any Constitutional rights at that time. You may ask the man where he was on a certain day or things of that kind, and that may not be coercion.”. In
Commonwealth v. Dilsworth,
In his argument appellant does not claim that the statement of the law by the trial judge was erroneous but that it was prejudicial in that the jury could only have construed it “. . . as a complete exoneration of the untruths, artifice, inducements and fraudulent misrepresentations of the police officials.”. With this conclusion we cannot agree. Moreover it assumes the existence of the elements mentioned which would adversely affect or destroy the trustworthiness of the confessions. Their existence was for the jury. The court *279 repeatedly charged the jury that before considering the confessions they must find them voluntarily made. At the request of defendant’s counsel, he specifically charged them: “If you believe as jurors that the oral and written statements of the defendant were obtained by oppressive, coercive, illegal and un-Constitutional methods, by reason of which they do not represent the wholly voluntary acts of the defendant, then said statements are incompetent and inadmissible and must be entirely disregarded by you without regard to the supposed truth of such statemеnts.”.
(5) Appellant’s final contention is that the verdict of the jury was not predicated upon legally sufficient and competent evidence. The Commonwealth’s case was based on the defendant’s oral and written confessions, confirmation of material facts stated therein and his reenactment of the crime. The latter two elements furnished corroboration of his confessions. His first confession was oral and made to two of the police officers at Norristown on November 10th. The officers testified that the defendant inquired as to why he was wanted. One of the officers said, “Wеll, there has been some trouble on the railroad and they think you have been involved.”. The defendant then said, “If you mean tearing up that track, I did that.”. He then went on to place the occurrence as “up here a couple miles” and when asked where he had gotten the equipment, he said he had broken into a tool house. He also stated at this time to the other officer that the tools had been a bar and a track wrench and that an overcoat had been taken from the tool house, and gave the name of the place where he had torn up the trаcks as Valley Forge. The officers testified that prior to this statement by the defendant his questioning from the time that the defendant was apprehended in South Carolina had been confined to his whereabouts on May 9, 1948, the date *280 of the crime. This was borne ont by the testimony of the defendant. In his written confession made at the district attorney’s office on November 11th, the defendant stated that he came to the scene of the crime from Harrisburg in a gondola car of a freight train, described as “two or three feet high, one like they haul steel and stuff like that.”, which stopped in the vicinity of the tool shed. He said that there were two other colored men with him and that he and one of them took from the tool house a wrench, a crow-bar and a coat, after entering through a window.
As before stated, the Commonwealth did not believe the defendant’s story of having confederates. Prior to the questioning by the district attorney at the time of his first written confession, the defendant gave the names of these alleged confederates as “Charlie” and “Ed”. He later gave different names for them and after the preliminary hearing he said he did not remember their names nor recall the names he had earlier mentioned. In his first written confession he stated that he removed the spikes from the rail and that it was in the evening — about dusk; that afterward when he left the scene he went to Norristown partway on another freight train and then walked over a trestle. In reply to specific questioning he made it plain by his answers that material facts stated by him therein were not the result of any prior questioning or suggestion.
The Commonwealth adduced testimony that a freight train traveling eastward from Rutherford Station about five miles east of Harrisburg had stopped in the vicinity of the displaced track at 12:50 p.m., (Eastern Daylight Saving Time), and left at 2:15 p.m. This freight train had gondola cars loaded with steel as described by the defendant; also there was a freight train that defendant could have taken after the displacing of the rail and a trestle bridge across the *281 Schuylkill Eiver that defendant could have used in making his way into Norristown. An overcoat which had been in the tool house was found after the derailment in a hole not far from the tool house.
On November 11th, the day after his first confession in writing, the defendant in company with the district attorney, three police officers and some newspapermen went to Port Kennedy Station and the defendant located the tool house and then pointed to the ladder which protruded from beneath the tool house and the window he had broken with a pick handle to gain entrance after mounting the ladder. The pick handle was found at the rear of the tool house. Before entering the latter he gave an accurate description of its interior and after entering pointed to where he had taken the bar and wrench and to the rail from which the coat had been taken. After leaving the tool house the party boarded a small gasoline flat car on the northernmost track and at defendant’s direction proceeded westwardly until defendant said, “We are not too far from the place. Do you see that red steeple over there?”, “It was right opposite that red steeple.”. After they had gone a little farther, the defendant said, “We are getting pretty close to it. You better stop.”. The defendant then pointed to the southernmost track as the one where he had displaced the rail. He also said he remembered a signal tower which was visible. One of the officers then walked along the track until he wаs stopped by defendant at the spot where the rail had been displaced. In his second written confession made on the same day after the reenactment, he gave more detail with respect to the happening and confirmed that he had located the place of the accident without any prompting or suggestion and was certain of it because he remembered the signal tower. The Commonwealth’s witnesses testified that at no time *282 either prior to his first oral admission or during the time of the first confession, reenactment and second confession was he told оf the place of the wreck, time of the wreck or anything pertaining to it. Neither was he told of the tool house, where it was located, how entrance was gained, what was taken from it, the track on which the derailment occurred and the visible landmarks such as a steeple and signal tower, nor of the trestle over which he walked to get over the Schuylkill River into Norristown.
Contrary to the testimony of the Commonwealth’s witnesses, defendant testified at the second trial that he had read only a portion of his first written confession and none of the second, although he admitted signing his name on every page of both confessions and making corrections in one in his own handwriting. At the second trial defendant in his testimony claimed that the police officers furnished him with the information for the making of his oral and written confessions and his reenactment of the crime. The officers denied this. XJpon cross-examination the district attorney developed that this testimony by the defendant 'was at marked variance with his explanation for the confessions given at the first trial. The defendant apparently was intelligent but there was much in his testimony that could have caused the jury to question his credibility and rejеct his attempt to explain away his confessions.
We do not deem it necessary to review in detail the defense of alibi. Defendant claimed that he was in Maryland on May 9,1948, the date of the crime. He called as witnesses to substantiate the contention his mother, his brother, his sister-in-law and acquaintances from the South. The credibility of the defendant and these witnesses was for the jury. An alibi is an affirmative defense and the defendant had the burden of establishing it by the fair preponderance of the evidence. *283 The court correctly charged the jury: “. . . You will consider all that alibi testimony in connection with all the other testimony for such aid as it may be to you in determining the defendant’s guilt or innocence. It may be that even though you are not satisfied of the alibi by the weight or the fair px*eponderence of the testimony, yet that testimony may be such as to raise alone or together with all the other testimony in the case that reasonable doubt which would cause you to find the defendant not guilty.”.
It may be added that much of the testimony in support of the defendant’s alibi was not convincing. One of the police officer's called by the Commonwealth testified that on the evening that he made his first written confession the defendant told him that on the day after he displaced the rail he had gone from Norris-town to Philadelphia and then hitch-hiked to Pocomoke City and that he then told various members of his family and friends that . . if anybody made inquiry for me that I was down there over that week-end,”. The defendant denied this, but the jury could well have believed the officer.
In concluding this consideration of the defendant’s fifth contention we are of the opinion that there was sufficient competent evidence to justify the verdict rendered by the jury, and this disposes as well of the reason asserted in support of defendant’s motion ixx arrest of judgment that “the evidence is insufficient to sustain the charge and conviction.”.
We have carefully reviewed the recoi'd in this case and find no reason for setting aside the verdict. Defendant received an eminently fair trial and enjoyed the benefit of representation by able counsel who were untiring in their efforts on his behalf.
Judgment and sentence affinned.
Notes
In accordance with the ruling by the majority of this Court in the first appeal by this defendant that Section 919 of The Penal Code of 1939 must be read in connection with the provisions of Section 701, the trial judge instructed the jury that they could find the defendant guilty of second degree murder.