Opinion by
This is an appeal by Aaron Turner from a conviction of murder in the first degree, committed during the perpetration of a robbery. The sentence fixed by the jury was death.
The defendant and Jasper Johnson,- alias “Fats” and “Playboy”, entered the Ace Broom factory located at 355-57 North 2nd St., Philadelphia, at or about five o’clock Saturday afternon, December 15, 1945, with the intention of committing a robbery. Clarence Lofton remained in front of the establishment as “look-out”. Turner, who was armed with an iron sash'-weight, entered the premises first. There he’ and Johnson met Frank Endres, a factory employee. Turner twice struck Endres over the head with the iron, felling him and Johnson “got his wallet from him.” The proprietor, Charles Simmons, who was in the rear of the store, upon hearing the scuffle came to the front. When he appeared he was hit “a couple of times and he went down”. Turner “went into his pockets” and took the *352 wallet containing “over $100”. The two felons left the building, joined Lofton, divided the loot and went to a taproom at “8th and Callowhill and had a few drinks”. A policeman passing the premises discovered that the door was open and entered the place. He found the victims lying in “pools of blood and beaten about the head”. He had them removed to the hospital. Two days later Endres died. Simmons died seven days later. There were no witnesses to the crime except its victims and perpetrators.
Defendant was arrested without warrant at 11 a.m., June 3, 1946, six months after the commission of the crime. Information leading to his arrest was volunteered by Lofton, who was apprehended on May 25,1946 in connection with an investigation conducted into a series of crimes. Johnson was arrested on June 3, 1946 about four-thirty in the afternoon. Turner was held in police custody until June 8, 1946 when he was brought before a magistrate.
At the trial Detective Daniel O’Mahoney testified that Turner was arrested at 11:00 a.m. on June 3, 1946, and was taken to the office of the Homicide Division in City Hall and interrogated about the killing of Endres and Simmons. No threats were made against him and no promises were given him. He was questioned a few hours every day until June 7th, when Turner said he wished to tell the truth, that what the other two men had told about him was true and that he would tell all about it. Turner said: “I was at the broom factory and I struck two men with a piece of iron”. On the first day of his arrest Turner was interrogated for about three hours and on the next day for about three hours. This continued for five days until the admission of guilt was made. Detective Fisher also questioned the defendant in O’Mahoney’s presence. “Sometimes Detective Carey Avas there and sometimes Detective Lennon was there and Sergeant Riccardi was there and Detective Thompson was there and Lieutenant Kelly took an active part in the questioning of this man.” Sometimes the question *353 ing was done in Turner’s cell and sometimes in a room about 12 feet square at police headquarters. He said that during this period Turner never asked us “to get in touch with his friends or relatives”. He was asked: “Did you ever tell Turner anything he might say coxild be used against him?” He said that he did so “on the night that he said he wanted to tell the truth. That is the 7th of June”.
The questions asked Turner and the answers which he gave after he said he wished to tell the truth were taken down stenographically and transcribed. Turner signed each of the sheets of the transcript containing the questions and answers. Turner described the weapon he used in the killing as “a piece of iron, about 11 inches long, 2% inches wide, % inch thick, with a hole in the end.” He was asked: “How many times did you hit the white men over the head when you entered the premises at 355 North 2nd Street on December 15,1945, at about 5:00 p.m. ?” He answered: “I hit the first man twice and I seen Fats get his wallet from him. Q. How many times did you hit the second man? A. I only hit him a couple of times and he went down and I went into his pockets and his wallet and took the wallet and went out with it. There was something over $100.00. I don’t know how much. I threw it away while walking out Callow-hill Street. Q. How much money did you give Clarence Lofton? A. $87.00. Q. How much money did you give Jasper Johnson, alias Fats? A. I didn’t give him any money. He said he got $50.00. Q. How much money did Jasper Johnson give you? A. I don’t know how much he gave me but I gave Clarence $87.00, out of it and I kept $75.00.”
Jasper Johnson and Clarence Lofton also made statements about the killing. These statements were all made in the presence of Turner and they agreed in detail. Each one of the three accused signed each page of each statement.
*354 At the trial Turner denied the truth of his confession and asserted that it had been procured from him by fear and physical abuse. In submitting to the jury the question whether or not the confession was voluntary and uncoerced the trial judge correctly said: “Then, before the confession may be admitted in evidence, the jury must be satisfied beyond a reasonable doubt that the confession has been a free and voluntary one, not induced by fear, coercion, or promise held out, or inducement held out to the defendant. You must first find that the confession was a voluntary statement made by the defendant of his own free will. That seems to me to be the crhx of this case.
“For the same reason, if you do not believe this confession was a free and voluntary one, then you have no right to consider it in the evidence. If you believe beyond a reasonable doubt it is a free and voluntary confession, not induced by fear, coercion or inducement held out, or by threats made, then you may accept the confession in your consideration of all the evidence.”
On the factual issue the jury after hearing the evidence.found against Turner and accepted his confession as being uncoerced and true. As. to the confession the court well said in its opinion refusing a new trial: “. . . the defendant is. not a poor negro of a low degree of intelligence. From , an observation of him and listening to his testimony, it is apparent that he is a smart, clever individual. It is apparent that his confession was not concocted by others, and it .is clear that it is not a fabrication created by another mind or minds. The statement as given by the defendant is logical and only consistent with his guilt and that of his confederates. It shows that the defendant had this broom factory under observation two days before the murders and that he and his confederates went to the factory on that Saturday afternoon after the close of the business day, for the purpose of robbery. . . . The confession of the defendant and the confessions of his confederates stated what each *355 gave to the other in the way of cash after they had fled from the scene of their crimes. The confession of the defendant shows that in going out Callowhill Street, he threw the sash weight away; that the three confederates then went to saloons where they had some drinks, and that they then parted, promising each other that they would say nothing about the crime. A reading of the confession shows that the defendant was asked whether he had been threatened or harmed and whether he had been promised anything, and it also contains the caution that anything he might say, might be used against him. The defendant was asked if he knew, when he was arrested, what the charge was and he said, ‘yes, sir, for the murdering of those two men in the broom factory.’ ”
Anyone with experience in the administration of criminal law who reads the answers Turner made to the questions put to him will readily conclude that the statements he made to the officers were not those of a coerced or scared witness but that they were the statements of a man who had committed a murder and whose recital of its details was clear and explicit. The teller of the gruesome story of this double murder was obviously drawing on his memory and not on a fear-fired imagination. His narrative. dovetailed so accurately with the physical facts surrounding the crime and with the story told by his accomplices that there can be no reasonable doubt of the story’s truthfulness.
We said in
Commonwealth v.
Spardute,
*356
In
Commonwealth v. Jones,
There is nothing in the Constitution 1 or the statutes 2 of Pennsylvania or in the decisions and opinions of this court during the two and a quarter centuries of its existence, requiring that a convicted murderer be turned loose merely because he has not been taken before a magistrate immediately after his arrest or because he was held five days in jail and interrogated a few hours each day by police officers without being given an opportunity to consult with counsel or with friends. Of course, if during that period he was denied food, water, sleep or rest, or if he was beaten or manhandled or threatened or given inducements to confess his guilt, any admission of guilt extracted from him by such means would be judicially rejected as worthless.
We find nothing in any decision of the United States Supreme Court applying the “due process of law” guar
*357
antee of the 14th Amendment which would justify us in adjudging Turner’s confession inadmissible and which would thereby require his release from custody. The United States Supreme Court has frequently declared in effect that a state’s long-established interpretation of its own constitution’s “due process” clause is entitled to respect and great weight by the Federal judiciary. In
Otis Co. v. Ludlow Co.,
Appellant bases his plea for release chiefly upon the case of
McNabb v. United States,
“In the view we take of the case, however, it becomes unnecessary to reach the Constitutional issue pressed upon us. For, while the power of this Court to undo convictions in state courts is limited to the enforcement of those ‘fundamental principles of liberty and justice,’ Hebert v. Louisiana,272 U.S. 312 , 316, which are secured by the Fourteenth Amendment, the scope of our reviewing power over convictions brought here from the federal courts is not confined to ascertainment of Constitutional validity. . . , Moreover, review by this Court of state *358 action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction. . . . Quite apart from the Constitution, therefore, we are constrained to hold that the evidence elicited from the petitioners in the circumstances disclosed here must be excluded. For in their treatment of the petitioners the arresting officers assumed functions which Congress has explicitly denied them. . . . The circumstances in which the statements admitted in evidence against the petitioners were secured reveal a plain disregard of the duty enjoined by Congress upon federal law officers. ... In holding that the petitioners’ admissions were improperly received in evidence against them, and that having been based on this evidence their convictions cannot stand, we confine ourselves to our limited function as the court of ultimate review of the standards formulated and applied by federal courts in the trial of criminal cases.” 3
The McNabb case is clearly not an authority for holding that a conviction secured in a state court by the confession of a defendant will be set aside as a violation of the “due process” clause of the 14th Amendment because the prisoner was not immediately taken before *359 a magistrate or. because be was interrogated without the presence of friends or counsel.
In
United States v. Mitchell,
A recent case in the United States Supreme Court on this subject is that of
Malinski et al. v. New York,
*360 The Supreme Court said: “If we take the prosecutor at his word, the confession of October 23rd was the product of fear — one on which we could not permit a person to stand convicted for a crime.” The Supreme Court then added, “But it is said that, this coerced confession was not introduced in evidence, that it was submitted to the jury only insofar as it threw light on the voluntary character of the subsequent confessions. . . The Supreme Court further said: “There were repeated references at the trial to the confession of October 23rd. The prosecutor made emphatic references to it in his summation. On this record the fact that Malinski confessed to the crime shortly after he was arrested stands out in bold relief. The use made of the confession could hardly have been more effective had its details been put in evidence. It was not insulated from the trial.” The Supreme Court then said: “We must consider the case, therefore, as one in which a coerced confession was employed to obtain a conviction.” In that case Chief Justice Stone in his dissenting opinion, in which he was joined by Mr. Justice Roberts, Mr. Justice Reed, and Mr. Justice Jackson, said:
“And the jury was instructed that it could consider the second confession, only if it found it voluntary, and that it could convict in that case. In view of these instructions, we cannot say that the first confession was submitted to the jury, or that, in the absence of any exception or request to charge more particularly, there was any error of which petitioner can complain. Hence the jury’s verdict must be taken as conclusively establishing that the second confession was voluntary and was not induced by any coercion attending the first. Lyons v. Oklahoma,322 U.S. 596 . . . . It is not the function of this Court, in reviewing, on constitutional grounds, criminal convictions by state courts, to weigh the evidence on which the jury has pronounced its verdict, also in the light of the arguments of counsel, or to sit as a super-jury. We have, in appropriate cases, set *361 aside state convictions as violating due process where we were able to say that the case was improperly submitted to the jury or that the unchallenged evidence plainly showed a violation of the constitutional rights of the accused. . . . The due process clause of the Fourteenth Amendment is concerned with matters of substance. It cannot rightly be made the instrument of reform of the manners of state officials. And however reprehensible or even criminal the acts of state officials may be, in so far as the conduct of the trial is concerned, they do not infringe due process unless they result in the use against the accused of evidence which is coerced or known to the State to be fraudulent or perjured, or unless they otherwise deny to him the substance of a fair trial, which is due process. [Citing cases.] Judged by these standards, we think that there was no denial of due process in submitting petitioner Malinski’s confession to the jury in the manner in which they were in fact submitted, and that there is no constitutional ground for setting aside the jury’s verdict against him.”
The majority of the United States Supreme Court held that the remarks of the prosecuting attorney in his summation to the jury amounted to an admission by him that the confession of the prisoner was coerced. The minority took the view that the “prosecutor did not testify in the case ... or had any knowledge of the alleged coercion . . . the prosecutor’s remarks did not tend to prove anything more than his own ineptitude. ... It is not the function of this Court ... to sit as a super-jury.”
In the instant case there was no coercion of Turner, either admitted or proved. His answers to the questions put to him revealed intrinsically the voluntary character of his statements, and the testimony of the Commonwealth’s witnesses furnished additional proof that Turner was not coerced into talking falsely against himself. The trial judge in admitting Turner’s incriminating statements and submitting them to the jury with
*362
proper instructions for testing their - truthfulness followed, the, rules sanctioned by this court during its entire existence. In
Commonwealth v. Dillon,
In
Commonwealth v. Goodwin,
Turner’s statements appear to be Those of a man whose narrative was based on first-hand knowledge and not on induced fabrication. What he stated fitted into all the.admitted facts. The glibness of his answers' revealed that he rather, enjoyed telling the story of a brutal-double murder and his part in it. 4 . Anyone believing: *363 Turner’s -later' assertions that lié had been coerced into making his ihcriminatin'g statements about the eommis-' sion of these murders-, would' be:too-credulous to be safely' entrusted with.tiny part in'the realistic whrk of'administering' the criminal law with-justice both to the accused and ;to society. •" " • ■ ■ '
In cases of thiá kind tlié duty; óf'the' judiciary is th hold the balance true between''the' safety of’society and fair play for an1,ácciised. ''Solicitude for the féelings of an accused must not be permitted to blind either j udicial or police officers, to the rights of. the multitude .to have criminals apprehended and their, further depredations prevented.- Any method of extracting confessions by means which'would cause a prisoner to falsely confess guilt in order to" be relieved of unendurable immediate suffering will not be tolerated in any civilized state, On the other hand,, for a court- to hold that- a: confession made by a well-fed. and decently cared' for prisoner after he lias been held-in custody a few days w'itlfóut counsel or contact with friends and after lie has been questioned a few hours every day by police officers in,.reference to a crime of which he is suspected, is .inadmissible as being, a. coerced confession would be unrealistic and impracti-' *364 cal. Such a judicial holding would result in a vast increase in the already too large number of felons who go unpunished and are free to prey upon law abiding citizens. These enemies of society naturally endeavor to commit their crimes where; there are no witnesses except themselves and their victims. When the victim is killed the murderer feels himself safe. Fortunately for society, criminals soon become possessed of an impulse to disclose their guilty secrets. 5 This impulse is invigorated *365 and vocalized by skillful interrogation. The facts just stated are well known to any person with any knowledge of human psychology or with any practical experience in the administration of criminal law. Criminals possessed of this desire to reveal their crime often lose that desire as soon as counsel or “pals” advise them to “keep their mouth shut”. In the unending warfare between the criminal and society á due regard for the latter’s safety requires that officers, should have a reasonable time within which to interrogate an accused while he is in their custody and being fairly treated and without their efforts to elicit the truth being frustrated by persons interested-in saving criminals from the just consequences of their crimes. 6 The test to be applied to confessions secured by police officers is this long established and judicially sanctioned one, to wit: “Was the confession secured under such circumstances and by such methods as to make it testimonially trustworthy?” Only when it is manifestly worthless as evidence should it be summarily rejected. Except in those cases where the confession is so obtained as to make its rejection the obvious duty of the trial judge, the jury acting under proper instructions is the tribunal to apply the above test.
Wigmore on Evidence, 3rd Edition, pages 318-319, section 851, pertinently says in justification of the interrogation of accuséd persons by officers of the law: “Miscalling a thing by a bad name does not make it any worse than it is. Let us therefore ask whether there is *366 any reason why . the traditional process-of lengthy continuous /interrogations--in .seclusion,, • immediately after arrest, calls -for. exclusion of a- confession thus 'made. ■
In the first place, an,.innocent-person is always helped by an-.early-opportunity to tell his whole story; hundreds -of:-suspected:.persons every -day are'set free because .their-story thus told bears the marks Of truth: Moreover,■ and more important’,--every guilty person is almost always ready and desirous-.to confess, as soon ns 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. 7 . At that moment,--he will;-tell-all, and tell-it; truly; - To forbid soliciting him,, to seek to prevent: this relief,-is to.,fly in the face of, human-.nature. It is -natural,- and should-be lawful, ;to takes his confession at that moment — the best one..-And this expedient,-if, sanctioned-,-saves the State a delay and . expense in convicting him-after he has reacted from his first sensations, has yielded-to his-friends’ solicitations, and comes under the sway of the-natural human instinct, .to- struggle' to-save himself by the aid of all technicalities.
‘‘(■2) In the case: of-professional- criminals,: who usually, work,in groups,, there-is. often-no hope of getting at the group .until-one .of them has ‘peached’, and given the clues to the police. The police know this, and have known it for generations in., every- country. -The only .ones who apparently, do -not know it are some of the Supreme Court judges. A thorough questioning of the first suspected- person who is caught makes possible the pursuit of"the right'trail for the others. To forbid this *367 is to.tie the. bands' of the p'olicé. The attitude: of some judges, towards these necessary, police methods is lamentable,; one would think that the police,, not the'criminals, were the enemies of society.- To disable the detective police, from the very- function they are set to fulfil -is no less than absurd. Let the judges who sit in, judgment on crime Took-a little into, the facts. Let them not sit up aloft and dictate-a. rule which ignores the well-known facts of criminal life and hampers the needful methods of justice.”
Even if it should be decided in á- given case that a .prisoner had been technically wrong'ed by an -officer’s refusal to take him before a com'mitfting • magistraté almost immediately after his arrest for a felony, it does not follow that under the American constitutional system- society must be more grossly, wrongéd by having the. prisoner turned loose upon.it after: he has. confessed his guilt. Just as in morals “two wrongs do, not make .a right”, so in law .committing a: wrong, against , an accused cannot, be righted by committing a wrong against society, • ..• - .
This court has always protected: accused persons against convictions other than by due process of law. The “due process” provision in the 14th Amendment to the Federal Constitution conferred on citizens.of this Commonwealth no rights in addition to .those, which they had for centuries enjoyed under state judicial protection. As the Supreme Court of the United States in
Mobile & Ohio Railroad v. Tennessee,
*368
We have no hesitation in declaring that the nse in the instant case of Turner’s confession in no way breached his right to a trial by due process of law. Nor is there any merit in the contention that the joint confessions made by Turner and his accomplices were received in evidence against him. The mutually incriminating statements were made by each of the accused in the presence of all. Not only did Turner hear himself accused by those who at the same time confessed their own guilt but by signing
their
statements he
verified
them. On the authority of
Commonwealth v. Oreszak,
When Turner was taken to the scene of the homicides, and his two confederates, Johnson and Lofton, reenacted the murders of Simmons and Endres, in the commission of which crimes they assigned Turner the major role, he made no denial of their accusations but stood mute. His guilt of a brutal killing committed in the perpetration of robbery was proved beyond a reasonable doubt and in a fair trial. The jury fixed the only appropriate penalty, that of death.
All the assignments of error are overruled, the judgment is affirmed and the record is remitted to the court below so that the sentence duly imposed may be carried out.
Mr. Justice Jones concurs in the judgment.
Notes
Pennsylvania’s equivalent of the “due process” provision of the 14th Amendment to the United States Constitution is found in Article I, section 9, the last sentence of which reads as follows: “. . . nor can he [the accused] be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.” “Law of the land” means due process of law:
Norman v. Heist,
5 W. & S. 171,
The Act of May 31, 1718, 1 Sm. L. 105, sec. 4, 19 PS 783, requires the courts to assign “learned counsel” to prisoners upon all trials of capital crimes. This is also required by the Act of March 22, 1907, P. L. 31, sec. 1, 19 PS 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
Com. ex rel. McGlinn v. Smith,
Justice Reed in his dissenting opinion said: “Now the Court leaves undecided whether the present confessions are voluntary or involuntary and declares that the confessions must be excluded because in addition to questioning the petitioners, the arresting officers failed promptly to take them before a committing magistrate. The Court finds a basis for the declaration of this new rule of evidence in its supervisory authority over the administration of criminal justice. I question whether this offers to the trial courts and the peace officers a rule of admissibility as clear as the test of the voluntary character of the confession. I am opposed to broadening the possibilities. of defendants escaping punishment by these more rigorous technical requirements in the administration of justice. If these confessions are otherwise voluntary, civilized standards, in my opinion, are not advanced by setting aside these judgments because of acts of omission ■which are not shown to have tended toward coercing the admission.”
Turner stated ,(in addition to what is already. quoted- in- this, opinion)’ that “on Saturday, December 15, 1945” be said to Johnson and Lofton, “wé have a job to" do and they went with mé . . . when we passed hi the-second door we met the man and I 'hit him-the man with a piece of iron which I- had wrapped up in a piece off *363 newspaper. Q. When you- say you looked the place over, the broom factory . . -. what did you have in mind? A. I figured at was quiet around there and I figured it was; easy money to rob.” He stated the size. of the weapon -he-used-and mentioned “the hole-in the end” of-it.Jasper Johnson in-his confession, which Turner also signed, said that after .they got to the broom- factory, -f‘we were met by ;the smallest fellow, a middle aged man. Tree-top [Turner] slugged him on the side of- the head. The fellow was- on -the floor scuffling,- trying to'get up. I runs in his pocket pulls out a wallet out of the hip pocket. . . . I looks around to see Treé-top and the other man. He was oil the floor and Tree was over him. He had doné slugged him.” Clarence Lofton, the other confederate, made a statement, which Turner alsb signed. Lofton, who was the “lookout”/said that when' they came out of the place Fats or Tree-top said,- “One- of them wasn’t no trouble at all'but one of the-sons ‘ofbitches I-had to’give a hell of a blow to.” From Johnson’s statement-the man who -thus boasted of the “hell bf a blow” he gave one of the victims was Turner: - ■
In the well-known case of
Commonwealth of Mass. v. John Francis Knapp,
In the instant case Turner while in the cell room of City Hall, apparently shortly after his arrest, called “across the top of the cells to Jasper Johnson to stand tight and not to talk.” He was then transferred to the station house at 15th and Snyder Avenue. He was later brought back to City Hall “after he had promised not to try to influence other prisoners.”
'"After tliis sense of nervous relief lias pássécl, the inclination to 'tell'disappears; arid móst confessions'are in fact made within a short time after arrest.” Footnote, page 319, Wigmore, supra.