Opinion by
The defendant, Robb, while confined in the Eastern Penitentiary, became an intimate of two men, Hayes and Reisinger, the latter having been formerly employed as a brakeman on the Baltimore Division of the Pennsylvania Railroad. The three conceived the plan of robbing the freight stations along this line, and disposing of the goods obtained. Robb and Hayes were first released from imprisonment, and both went to live in the house of the last named in Delaware County. Several warehouses having been burglarized, officers were placed at various points to detect and arrest the perpetrators. On November 22, 1921, the deceased, Lea-man, was in charge at Glen Riddle. After the last train had passed for the night, he discovered Hayes engaged in removing certain property, which had been taken from the freight station, found to have been broken open. Resisting arrest, Hayes struck with some blunt instrument, seized the patrolman’s revolver, and with it shot three times, resulting in the death on which the present indictment is based. Robb had previously *102 been stationed across ¿he track as a lookout, it being the purpose of the two that the goods, when secured, should be carried by truck to Philadelphia for sale. The defendant fled, and was absent for some time, but indications of his connection with the affair were disclosed, and, upon his return a short time after to visit Hayes, he was apprehended. At first he disclaimed all connection with the crime, and voluntarily went with the officers to aid in clearing up the situation. A number of statements were made by him, differing in many particulars, but finally there came a confession, which was used in the trial of the case. All of the above facts are to be found in the self-incriminatory narratives, which were submitted, under proper instructions by the court, as to the weight that should be given them, if considered at all. After indictment of defendant for murder as an accomplice in the assault on deceased, the jury, with leniency, as we view the record, found him guilty of murder of the second degree, and it is from the sentence imposed that this appeal is taken.
Reference may be made first to the portions of the charge complained of, which define the legal responsibility of the defendant, by reason of his participation in the crime. The instructions as to the culpability of one who joins in a. criminal act, though the actual assault be made by another, cannot be successfully objected to. “Where two join in the commission of an unjustifiable assault, which results fatally, both are guilty regardless of which one inflicts the mortal wound; hence, the trial judge did not err in charging the jury, in effect, that, even if entirely satisfied the defendant did not fire the fatal shot, it would still be their duty to convict of some degree of murder, if satisfied that, for the purpose of committing an unlawful assault, he was acting, in concert with the person who fired such shot”: Com. v. Biddle,
Though the general principle stated is not controverted, counsel for appellant insist that the learned court below erred in permitting the jury to say whether the facts showed the crime to have been burglary within the meaning of the penal code (Act of March 31,1860, P. L. 382, section 135), which limits this offense to a breaking or entering in the nighttime of certain buildings “with intent to commit a felony therein.” It is urged that this definition does not include a freight station or warehouse, though the latter in the care of the entry for such purpose is made an offense of like grade by the Act of 1901 (March 13, P. L. 49). This overlooks the statement in the first statute noted that the crime there defined is committed if the breaking in is of any structure belonging “to any body corporate,” and that the owners of the station at Glen Riddle came within this category. The proposition, raised might furnish ground for dispute if a conviction of first degree murder had resulted (Com. v. Exler,
Suggestion is made that the statements of Robb, ad
*104
mitted in evidence, were not voluntarily given, but resulted from tbe exercise of undue pressure by tbe police and the district attorney’s officers. We bave read tbe record relating to all of them, and can come to no other conclusion than that tbe jury was fully justified in reaching tbe contrary conclusion under tbe fair and legal instructions of tbe court below. Indeed, tbe most important statement seems to bave been admitted without objection. Nor is there merit in tbe complaint that it appears from these narratives that defendant bad been in tbe penitentiary. No effort was made by tbe Commonwealth to prove this for tbe purpose of showing tbe commission of some offense not involved in tbe trial. Where three burglars are jointly indicted for a murder committed, one may be permitted to testify as to tbe criminal concert of tbe three long anterior to tbe particular crime under investigation, and a verdict of guilty will not be affected because other crimes were mentioned by tbe witness in a general way, but without any attempt on tbe part of the Commonwealth to elicit evidence of other independent crimes: Com. v. Biddle,
An examination of tbe assignments of error leads to tbe conclusion that all must be overruled.
Tbe judgment is affirmed, and tbe record is remitted so that tbe sentence imposed may be carried out.