Wednesday, January 5, 2011

Secrets of the Big Creek Valley: The Rise and Fall of Pierce F. Rehrig

A Case of Getting Away with Robbery and
 Murder in Carbon County

By Ronald J. Rabenold

“If you want to get away with murder, come to Carbon County.” That’s what then District Attorney Carl Niehoff said at the Packerton Old-timer’s Club in 1949.

Pierce Rehrig of Lehighton died, some say murdered, on June 7th, 1941. Found face down at his bungalow in 22-inches of water of a slack water dam in the Big Creek Valley.
William B. Lovatt, Dennis and Pierce F. Rehrig's
Quilling Machine Patent, April 1910

Those bitter words from Niehoff were heard by Fred Komatowski’s paperboy, Paul Borits Sr. of Packerton. Borits knew Niehoff was referring to his customer, but until then he only knew him as an excellent tipper. The rhetoric was also directed at Judge James McCready (whom Niehoff was opposing in the primary election) and former District Attorney Heimbach for botching the murder prosecution of Komatowski.
Future D.A. Carl Niehoff in his 1924 Junior
Yearbook picture at Lehighton High
Pierce F. Rehrig was a successful silk mill operator, starting out in one of William B. Lovatt’s mills. Lovatt was the son of the “Read and Lovatt Mills” of Weatherly and Palmerton. Along with his father Dennis Rehrig and Lovatt, Rehrig earned patent # 953,914 in 1910. It was for a quilling machine used for bobbing silk. (You can Google search “Google Patents,” and use the search words “Rehrig” and “Lehighton” to see the complete application.)
(Charlie Rehrig had a silk mill on the hill on Ochre Street above Peach Alley in the early 1900s.)

Pierce Rehrig was certainly on his way. And then he met Miss Evelyn D. Christman. She started out as his secretary. By 1917, the two teamed up to form R & C Knitting Mills, creating a corporation with shares of stock. The same year Rehrig purchased the fateful side-by-side bungalows: one for him, and one for Miss Christman. It was a home away from home for both of them, even though he was married to Emma and had 10-year-old daughter Mildred at home.

According to Cindy Lafaw, the bungalows were behind her grandfather's seventy-acre farm.  The stream running through the property was known as Deep Run, on the north side of the Big Creek Pike.  It was an area with two cabins and a private pond, closed off by a locked gate which was next to a small stone bridge over Deep Run.  It was about one-half mile past Behler's Busy Bee Gas Station.  There were no other cabins in this area.

Another reader of this blog, Keith Strohl, grew up on the his family farm of Joel Strohl.  His Uncle William Strohl's farm was next door.

Strohl explains:
"The Deep Run was a small stream that flowed through a valley behind my Uncle William's and our farm.  It flowed under the Big Creek Highway and into the Poho Poco Creek.  This was just past the Iron Bridge and Behler's Busy Bee going toward the Pine Run.  There was a small cabin on both sides of the stream with a U-shaped, dirt driveway that crossed over a huge culvert in front of the cabins.  The Deep Run flowed through this culvert.  There was a deeper pool of water just where the stream exited the culvert.  I used to sit on top of the driveway over that culvert and fish for native brook trout in that pool, never knowing at that time that someone was found dead there."

My Uncle Bobby Haas once told me he dated a young woman whose family eventually came to own one of these cabins after the death of Pierce Rehrig and this is where these high school friends would gather.

By June of 1941, Rehrig’s mobility was restricted with the shuffling feet and shaking hands of advanced Parkinson’s Disease. Within two days of his death, Chief of Police Harry T. Yenser thought he had his man. Many knew Komatowski was the other man in Christman’s life. Komatowski and Christman shared her 728 Mahoning St. home since 1931. According to the contested confession Yenser extracted from Komatowski, Fred was “tired of playing second fiddle to Pierce Rehrig.”

State Attorney General Claude T. Reno visited Mauch Chunk to advise on this case. He appointed Attorney General Daniel P. Dougherty of Nesquehoning as Deputy Attorney General. Frank X. York of Mauch Chunk, hired by Rehrig’s widow in a civil suit against Christman, was appointed to assist Dougherty.

The prosecution’s case relied heavily on the Komatowski motive, one Komatowski would later recant. Fred "Fritz" Komatowski said his interrogation was grueling.  He said it was a 20-hour marathon in 2-hour relays, including the brutality of punches to the face and kicks in the ribs. They allegedly beat the confession out of him and as District Attorney Albert H. Heimbach admitted to the press, they were “turning up the heat” with “third degree tactics” on their yet to be named key suspect.

The prosecution believed someone had to have thrown Rehrig into the water. They thought they would be able to convince the jury that Rehrig could have never walked, unassisted, the thirty paces necessary to end his own life. They called Rehrig’s wife, daughter and his personal attendant James Auge on to the stand and all testified that Rehrig was too incapacitated to have walked that far by himself. They even bused the jury out to Big Creek to see the “lay of the land,” to stroll around the cottages.

The defense claimed Rehrig had to have thrown himself into the water. They called witnesses, including Komatowski and Christman who emphatically stated that Rehrig could indeed walk that far. They even had testimony from Ralph Beltz who was Rehrig’s attendant before Auge. He agreed with the defense as to Rehrig’s ability. However he hadn’t worked with Rehirg in over seventeen months.

147 North Third Street Lehighton - The Komatowski homestead
from the late 1800s until the 1950s, passing from father Julius to son
August.  Bill Getz of Lehighton still remembers "Gus" his old landlord. 
Forensic investigation of 1941 wasn’t the science it is today. The police had no physical evidence. But if they were right, Komatowski was the last person to see him alive. He was also the person who found him the next day. At one part of his interrogation, Chief Yenser took Komatowski back to the property to recreate the two scenes he witnessed: the one where Rehrig begged to be placed into the dam and the other when he arrived after dark the next evening to see Rehrig floating face down in the water.

It was midnight on June 10th when a tired and beaten Komatowski was arraigned by Justice of the Peace F. A. Seip of Palmerton, the night before Rehrig’s funeral. He was released until he was rearrested on June 24th following his inconsistent testimony at the Coroner’s Inquest before the county grand jury, only to be released after a habeas corpus hearing on July 11, 1941.

The Komatowski's c. 1890 - Fred is kneeling left
and Freida sits at Julius' feet

116 South Third Street Lehighton - Evelyn Christman's first
home on her own, next to the then newly built Lehighton
Fire Co. #2.  She also took in her cousin James Wagner and
raised him as her own son.

Fred Komatowski was the son of Julia and Julius. He was born in February of 1886 and had three older brothers, Reinhold born in 1880 and twins Julius Jr. and August, born shortly after his parents immigrated from West Prussia Germany in 1882. He also had younger sisters Clara, 1888 and Freida born in 1893. Freida later married Oscar Pettit and moved to Hazelton and was the only other person named in Fred’s will. Fred’s father and older brothers were cast iron molders at the Lehighton Stove Works, but he gravitated to the Lehigh Valley Railroad and become a refueling clerk. He was also a “handyman” for R & C Knitting Mills.

Evelyn Christman was born in 1893, eighteen years younger than Rehrig and seven years older than Komatowski. Her parents were Alfred and Anna Christman. He was a carpenter in the Lehigh Valley Railroad car shops. She had one older brother, Clarence. Evelyn’s cousin, James H. Wagner came to live with them when he was two years old. He was 15 years younger than Evelyn.

Later on, when she set up her own household, Wagner moved along with her and she raised him as her own son. By 1920 at the age of 27 and still single, Christman was financially secure enough to hire Stella Snyder as her private, live-in servant.

Wagner would become a life-long ally of Christman. Christman even purchased a plane she kept at the Lehighton Airport (where the Lehighton Area High School is today.) and Wagner learned to fly it. He was also a faithful mill manager at R & C and would later receive the largest portion of her ample estate.

In 1940, one year before his death, Rehrig and Christman recorded a $1 transaction together. In the event of his death all his holdings in the R & C Corporation would go to Christman, rather than to his family. This, in addition to Komatowski’s “hazy” memory, changing his story three different times, played into the prosecution’s favor.

Komatowski never denied the majority of the detailed description he signed as to his whereabouts at the time of Rehrig’s death. The only part he refuted was the part about carrying and throwing him to his death in that pool of water.

205 North Second Street Lehighton - The childhood home
of Pierce Rehrig's attendant James Auge.
His confession reads like this: Komatowski leaves work at 11:00 AM on Saturday June 7th and has 2-3 beers before lunch. Having another two after lunch, he arrives at Christman’s bungalow. James Auge had Rehrig’s 1932 Chevy Coup blocking the shared driveway. Allegedly, Komatowski shouted for Auge to get the car “the hell out of the way,” which Auge did.

A short time later, Komatowski said he was minding his own business, feeding the squirrels next door, when Rehrig and Auge loaded into the Chevy. As they left, Auge shouted over to him, calling him a “son of a bitch.”

Shortly after, he left and met James “Jimmy” Pennell at the Carbon House, on the corner of North and First Streets in Lehighton (site of the present Bank of America). Jimmy agreed to leave the bar and go with him back out to Big Creek, allegedly to show Jimmy the poor conditions Auge was keeping Rehrig’s cabin. However, during the trial, Pennell testified he went there only for the promise of beer from Christman’s cabin.

The Weissport House - Komatowski and Pennell stopped
for some "whiskey and beers" and to talk to Ignatz Deutsch
Along the way, they stopped at the Weissport House and talked to manager Ignatz Deutsch while having “beers and whiskeys.” They arrived at Big Creek by 6:30 PM, a 20-minute ride.

Rehrig and Auge had returned with Pierce standing “propped-up” in the northwest corner of the porch. Fred said, “Hi-ya, Pete,” before he and Jimmy let themselves into the kitchen. He saw Auge and asked him what he shouted to him from the road earlier, sending Auge out the back door. Auge allegedly once again yelled at him causing Fred to call after him, telling Auge to return and tell him what he said. But Auge tore away alone in Rehrig’s car. During the trial, Auge expressed feeling terrified by Komatowski.

It was the last time anyone other than Komatowski would see Rehrig alive.

According to Komatowski, when he returned to the porch, he noticed Rehrig had moved, unassisted, over along the railing and seated himself on his piano stool. Pennell seated himself next to Rehrig on a rocking chair while Komatowski stood on the other side. They spoke politely and inquired about his health, to which Rehrig reported, “Not so good.”

Soon, Komatowski and Pennell crossed the bridge over the stream to retrieve two quarts of “Old Reading” beer from the Christman cabin. They sat drinking their beer for about 20-minutes on the steps leading into the water.

Leaving Pennell there, Komatowski decided to go check on Rehrig. He found him against the railing, shaking and in a terrible nervous state. It was then, according to Komatowski,  that Rehrig said how he wished he were dead, how he wished his suffering would end. Komatowski claimed he tried to soothe and bring Rehrig back from his death wish, but to no avail.

According to the written statement compiled from his 20-hours of “third degree” interrogation, Komatowski lifted Rehrig over the wooden cap piece on the side of the dam and stood him there facing the water, leaning forward.

This drastically differed from his court testimony. On the stand, he said that Pennell had simply returned to the car and he joined him at about 7:00 PM. With the car facing away from the property toward the roadway, had Komatowski dropped Rehrig into the water, Pennell would not have seen it. In court, Komatowski insisted he left Rehrig, alive, on his porch.
James "Jimmy" Pennell was with Komatowski at Rehirg's bungalow
the night of his death.  Pennell and Carl Niehoff
were LHS classmates in the Class of 1925.
On the way home, they stopped at Willard “Bully” Rehrig’s Glenwood Inn and were at the Lehighton A & P (present day Lehighton Hardware) by 8:00 PM. They then went to Kreamer’s Store, borrowed $15 from Ralph Kreamer and went to “Babby” Shafer’s Saloon, all on Second Street. After about an hour, Komatowski told Pennell he was going home. They parted company at the Elks Club at the corner of South and First Streets.
Leiby's Hotel (Now Citro's) on South Second Street Lehighton
with the original R & C Mill in the background
The next thing he remembered was waking at 2:00 AM unable to sleep. He decided to clean and cook his chicken for Sunday dinner, going back to sleep until 7:00 AM. He ate some breakfast and was at the Lehigh Valley Passenger Station to sign off on a refueling train by 7:30. (The station was at the north end of the present-day Rout 209 by-pass to the rear of Rite-Aid). Later, he arrived at the Elks Club, drank six large beers and swapped jokes and stories with Jimmy Yenser, Joe Vanage, Jimmy Pennell, Con O’Brien, and several others.

The Lehighton Hi-Rise where the Hotel Lehighton once stood.
Right of the Hi-Rise, the former Elks Club.  Komatowski
went looking for Chief Yenser here, but found Patrolman Anthony
at the Hotel.  Evelyn Christman's 123 South St rental is at right. 
Returning home, he took a nap on the divan couch downstairs. At 6:00 PM, 24 hours after Rehrig’s death, Fred gets a call from James Auge that awoke him. Auge accused him of taking Rehrig in his car and he demanded to know where he was. Auge also told him there was a search warrant out to find Rehrig. This was all news to Komatowski.

He asked his neighbor Lewis Hall if he wanted to go with him to another refueling at 7:53 PM and he agreed. Once there, he suggested they ride out to the bungalow to “feed the squirrels.” They arrived there around 8:15. With his 2-cell flashlight, he could see Rehrig’s body by his white shirt in the 22-inches of water and “suddenly realized what had happened.” Hall agreed they needed to contact the police.

They drove back into Lehighton and went into the Elk’s Club looking for Chief Yenser. Mr. Spiker the bartender hadn’t seen him and suggested calling over to the Hotel Lehighton (present-day site of the Lehighton Elderly Hi-Rise.) Patrolman Anthony was there and agreed to meet at the corner. They did, but he suggested calling the Motor Police (State Police) as it was out of his jurisdiction.

Komatowski took the stand in his own defense the last 2 days of the 13-day trail. With no court on Sunday, the jury was once again taken for a bus ride, this time to break the tension and “monotony.” They deliberated until 10 PM after closing arguments ended, then began again the next day at 9 AM, reaching a verdict by two that afternoon: “Guilty of murder in the 3rd degree.” Komatowski’s lawyer Ben Branch immediately declared a mistrial and secured Komatowski’s release on $7,500 bail.

A year and a half later, the state Supreme Court ruled in Komatowski’s favor. In a scathing denouncement, Chief Justice George W. Maxey ruled the charges had no foundation or precedent. “Every member of this court is surprised that the trial judge and the Commonwealth’s Special Prosecutor apathetically stood by hearing this ridiculous and meaningless sentence repeated thirteen times.” He also noted the judgment should never be used in case law.

The defense, with the help of Evelyn Christman’s testimony, established enough doubt that indeed Rehrig may have been able to walk unassisted to his own death, despite the prosecution’s own witnesses that said he couldn’t. A total lack of physical evidence with no eye witness and a recanted contentious confession won the defendant’s freedom.

Pennies for Freida - Komatowski's will,
witnessed by Wagner and Koch.
Freida Komatowski married Oscar Pettit and lived
 in Hazleton.
Komatowski and Christman spent their last years in a nicely furnished bottom-floor apartment in the R & C Knitting Mill in Packerton Hollow (the second floor was the mill). Fred Komatowski died in 1965. Claims against his estate for $30 for board, $52 for a Zern’s pharmacy bill, and $120 for Dr. Richard Gladding were paid to Evelyn Christman. “All the pennies in my top dresser drawer” were to go to his sister Freida, “if she is still here.” The remainder, about $5,000, was bequeathed to Christman. His handwritten, one-page will was witnessed by James H. Wagner and another loyal friend and R & C manager, Stanley L. Koch of Lehighton.
South Second Street Lehighton - Pierce Rehrig's mill and later
the home of his widow and daughter Mildred Baderschneider.
Today it's a 4-unit apartment building.  The flower gardens here
were once grand.
Emma Rehrig and her daughter Mildred filled their days gardening and sprucing up their home on the second floor of the former R & C Mill on South Second Street. Emma died in 1962. Mildred’s husband died in 1973 and she in 2005, nearly reaching one hundred years old. Despite a civil suit that alleged Christman obtained her wealth from Rehrig through “fraud, coercion, and deceit,” she and her mother were left with nothing much more than one building owned by her deceased father.
381-383 and 393 South Third Street Lehighton - All owned by
Evelyn Christman until 1973. 
Evelyn Christman died in 1973, one year before the opening of Beltzville State Park. By then she had acquired a sizable wealth. Besides her residence at the mill, she owned a 3-unit apartment at 381-383 as well as a house at 393 South Third and 123 South Street. She also owned a warehouse in Franklin Township, a winter trailer in Florida, and her home at 728 Mahoning, still occupied by James Wagner.
The R and C Knitting Mill in Packerton Hollow.  After Rehrig's death,
Komatowski and Christman lived here on the second floor.
Sixty-thousand dollars was distributed evenly to three Marlatt siblings, Robert, Cynthia and Terri Lee. Half of her R & C stock, worth $18,000, went to Koch who was also her driver in later years. There were provisions for the care of her dog and for thousands of dollars to go to Muriel Brady, to the Bethany Evangelical Church in Lehighton and the Fraser Mission in Philadelphia.

728 Mahoning Street Lehighton with rear apartment - James Wagner
 inherited this from Christman.  However the will stipulated it to be sold
upon his death, forcing his widow to move out of her own home.
Wagner received the bulk of her wealth, including the 728 Mahoning Street home and the remaining assets of cash, stocks and property. The will stipulated that “upon his death” the home must be sold and the proceeds to go to the Marlatt’s. However, the will did not provide for Wagner’s surviving wife. At her advanced age, she had to move out of her own home.

The secrets of this case have long been buried. Rehrig, Komatowski and Christman are all buried with their respective families. Pierce and Fred’s silent secrets remain with them in their graves which lie near the bottom of the Gnaden Huetten Cemetery. The two graves are exactly thirty paces from each other, the same number Pierce allegedly walked alone to his doom. Above them, overlooking from the hillside at the bottom of the adjoining Lehighton Cemetery is Evelyn’s grave. The two side-by-side bungalows of the Big Creek Valley are silent too, resting near below sixty feet of water of Beltzville Lake.

Evelyn Christman is buried alone with her parents, overlooking
the graves of Rehrig and Komatowski below.

30 Paces - From Bungalow to Stream and from Rehrig's resting place to Komatowski's. 
Komatowski's is seen here at the base of the tall tree on the left, next to the white stone.


Commonwealth v. Komatowski, 32 A.2d 905 (Pa. 1943)

Supreme Court of Pennsylvania





 George W. MaxeyJames B. DrewWilliam B. LinnHorace SternMarion D. PattersonWilliam M. ParkerAllen M. Stearne


This appellant, aged about 55 years, was indicted for the murder of Pierce Rehrig, a friend and companion aged 66 years. They resided in Lehighton. Komatowski made his home with Evelyn Christman, who was Rehrick's partner in the textile business. In the colder parts of the year Rehrick, who apparently lived much apart from his wife and daughter, spent considerable time with Miss Christman and Komatowski at the Christman residence. The Rehrick family and Miss Christman each had a cottage in the country a few miles from Lehighton. Rehrick spent the summer months at the Rehrick cottage, while Miss Christman and Komatowski spent considerable time at the Christman cottage at the same place. There was a small pool 35 feet west of the Rehrick cottage and 70 feet north of the Christman cottage. It was 19 inches deep at the edge and 22 inches deep at the center. The Commonwealth charged that on Saturday, June 7, 1941, Komatowski took Rehrick from the porch of the latter's cottage to the pool and "heaved" him into it, thus causing him to drown. It was established that he was drowned and there were only negligible marks on his body. He suffered from paralysis agitans and had little muscular control. He was attended by a man named Auge. On the Saturday in question Auge attended him at the Rehrick cottage and then departed, leaving Rehrick on his porch with Komatowski and a man named Pennell.

Pennell was called as a witness in this case by the Commonwealth and he testified that when he saw Rehrick at the latter's cottage a little before 6 P. M. on the night of his death, Rehrick was "very feeble" and "shuffled along" and the defendant helped him in his walking. *Page 447 Later he saw Rehrick "standing on the porch". Pennell then left and went to the Christman cottage. While he was at the Christman cottage is the time the Commonwealth claims that the drowning of Rehrick took place. Pennell was asked: "Did you hear any noise [at that time]?" He answered, "No", and in reply to a question said there was "no reason why he didn't hear" [if there had been a noise]. Then the defendant came over to Pennell and said, "I have got to get out of here before the A. P. store closes." That was about 7 P. M. He and defendant left together. Pennell asked defendant how the old man [Rehrick] was, and Komatowski said "O. K." They then went away and after stopping at a few places for alcoholic beverages they arrived at the A. P. store about 8 P. M. At 9 P. M. defendant said he had to get back "to stay with the old man that night".

Lewis Hall and the defendant found the body of the deceased at 9:30 P. M. Sunday, June 28th. At that time Hall had a flashlight with him. He was accompanied by Komatowski and he suggested to the latter that they "report the thing". It was reported, and Corporal McIlvaine of the Pennsylvania Motor Police arrived about 10:45 P. M., when the body was taken from the water. Komatowski was not present at that time. He was taken into custody that evening and on the following Tuesday he signed a confession which he later repudiated and which he declared he was forced by the officers to make. In this confession defendant made this statement: "I walked up the front steps of Rehrig's bungalow, and I found Pierce Rehrig standing up against the railing, shaking and in a terrible nervous condition. I asked him what was wrong. He said he wished he was dead. He then asked me to take him down to the water, as he wanted to die, that he was tired of living. I stayed on the porch about five minutes trying to talk him out of the idea, but it was no use, as he kept on begging. Finally I took a hold on his right arm and led him down the front steps, and toward the pool, I lifted both of his *Page 448 feet over the wooden cap piece on the side of the dam, and stood him on the edge of the dam face forward, and leaning forward. I released my grip on him and he fell into the dam. I turned around and walked across the auto drive to the place where Pennell and I had been sitting. When I got there Pennell was gone, so I walked over to my parked car, and Pennell was sitting. The back of my car was toward the dam, facing toward the highway."

On Tuesday, June 30th, Corporal McIlvaine took the defendant to the dam or pool, and defendant illustrated to him how he "lifted" the deceased into the pool. The Corporal said that Komatowski had "both hands around my torso from the rear, above the waist." Komatowski when asked the same evening to repeat the demonstration, did so, but the subsequent demonstration differed from the first one.

At the trial the Commonwealth called thirty-one witnesses and the defendant twenty-seven. The two chief factual issues were, first, Rehrick's ability to walk without assistance, its being the Commonwealth's contention that he could not have gotten from the porch to the pool unless someone carried him there or helped him there. On this question the testimony was completely conflicting. The other issue was whether or not defendant's confession, which he made on the Tuesday after Rehrick's death and which defendant later repudiated, was forced from him by methods which are customarily referred to as "the third degree" and which appellant's counsel characterize as "brutal and inhuman treatment". These two issues of fact, like all other factual issues, were of course for the jury. The record shows that the jury rendered the following verdict: "And Now, January 29th, 1942, the Jury in this case came into Court and say they find the defendant, Fred Komatowski, Guilty of Murder in the Third Degree — at 1:45 P. M." The jury was then polled, and their answer in each case was "Guilty of Murder in the Third Degree." The Clerk *Page 449 then said to the jurors: ". . . You say you find the defendant guilty of Murder in the third degree. Is this your verdict?" The jury answered: "It is." The defendant was thus convicted of a crime utterly unknown to the law. Defendant filed a motion for arrest of judgment on the ground that the verdict rendered by the jury was without legal effect. This motion should have been granted. It was denied and the defendant was sentenced to pay a fine of $3,000 and to undergo imprisonment in the Eastern Penitentiary for from six to twelve years for "voluntary manslaughter", a crime of which he had not been convicted.

This case has most peculiar aspects, one (but not theonly one) of them being that after the defendant was taken before a justice-of-the-peace following his confession no hearing was held but he was discharged. As to this discharge on June 10th, the appellant's paper book contains the following statement: "The District Attorney promised that if the defendant would say nothing anywhere else about his ill treatment [preceding the confession] the charge of homicide would be dropped. Komatowski accordingly made the promise and the charge was dropped. The District Attorney refused to prosecute, believing the confession was forced, but later proceedings were re-commenced by others against Komatowski." (He was re-arrested on June 24th.) In the Commonwealth's brief the following statement is made: "District Attorney Heimbach upon a report to him that Komatowski had verbally admitted he helped Rehrig to commit suicide, after Komatowski had re-enacted the crime to James Yenser, Chief of Police of Lehighton, and the prosecutor, Corporal McIlvaine, on two occasions, after he declared he heaved Rehrig into the pool, and after the defendant signed a written confession admitting the crime, instituted a proceeding before Squire Seip of Palmerton, Pa. This proceeding was dismissed at the suggestion of the District Attorney, in a hearing had secretly at midnight . . . The District Attorney *Page 450 did not withdraw from the prosecution because he believed the confessions were forced, or that prosecution was caused by other persons. District Attorney Heimbach petitioned the Court to be superseded because he alleged that he was counsel for persons who might be involved in the prosecution, as private counsel before the crime. He further asked to be superseded because he believed he might be called as a witness for the Commonwealth in this connection."

District Attorney Heimbach may have had proper personal reasons for getting out of this case after the defendant was re-arrested for this alleged murder, but the dropping of his murder charge so suddenly after Komatowski's alleged confession and after his promise not to prosecute those officers who, he said, had beaten him, creates a suspicion that certain persons who helped secure that confession had something which they wished to "cover up" and that the best way to do this was to bribe Komatowski into silence by setting him free.

The district attorney's actions in this case certainly invite censure and challenge investigation. He testified that he asked the defendant to "promise me that upon his release that evening" in the office of 'Squire Seip that he, the defendant, "would not mention anything whatsoever relative to having been beaten up by any of the officers", and that "he so promised". He also said that Komatowski refused to sign the alleged confession unless the allegation that "it was true" was stricken out. On cross-examination the district attorney made this statement: "After Fred Komatowski had stated that the confession was gotten out of him as a result of being beaten up, beaten up by Harry Yenser,1 [Chief of Police of Lehighton], after it was decided to dismiss Mr. Komatowski for the time being, I turned to Mr. Komatowski in the presense of McIlvaine, Hines, and *Page 451 I believe 'Squire Seip, and told Komatowski that he was going to be discharged, but prior to being discharged he would have to submit himself to a medical examination that evening, that the medical examination could be dispensed with if he promised me that in the future he would not mention being beaten up, neither would he bring any suit against any of the officers charged with having beaten him up. He did not refuse to submit to an examination by a physician, but he did state that instead of being examined by a physician that he accepted the second of the alternatives, that is, that he would not mention the fact that he was beaten up. Therefore, he was discharged that evening."2

It was the district attorney's duty to ascertain whether or not this defendant had been beaten and if he had been so beaten it was his duty to prosecute those responsible for it. To beat up a defendant while he is in custody is a crime not only against the immediate victim but also against the public, for it brings the administration of justice into disrepute. If the district attorney induced this defendant not to prosecute those who had assaulted him, by promising to release him from custody, his action comes very close to compounding a crime.

The most peculiar thing about this case is the verdict, and its irregularity is so at variance with the very fundamentals of "due process of law", that it requires the discharge of the defendant and makes unnecessary the discussion of any other point raised. *Page 452

The Commonwealth cites in support of the acceptance of this peculiar verdict and the legality of this sentence, the case ofCom. v. Gable7 S. R. 423. In that case the defendant was tried for murder. The verdict was "not guilty of murder but guilty of manslaughter". A motion was made in arrest of judgment. The court ruled that the intention of the jury was sufficiently manifest from its verdict and that it supported a conviction of voluntary manslaughter. This court, in an opinion by Chief Justice TILGHMAN, said: "One who is indicted of murder, cannot be convicted of involuntary manslaughter, because it is well settled, that there cannot be a conviction of a misdemeanor, on an indictment for felony. Therefore, when on an indictment for murder, the jury find that the defendant is guilty of manslaughter, it must be understood, such manslaughter as is felonious, which can be no other than voluntary manslaughter."

In that case this court went as far as it has ever gone in permitting a trial judge to construe a verdict which is returned by the jury in a form not completely proper and to impose a sentence on the verdict so construed. To permit the utterly meaningless verdict returned in this case and the sentence imposed thereon, to stand would be a reflection upon our American system of administering justice and would be contrary to the basic requirements3 of our law that a crime must be accurately *Page 453 defined, the indictment must be drawn with meticulous accuracy so that a defendant may know the charge he has to meet and that a verdict on such indictment must be either not guilty, or guilty of one of the major crimes therein or of a lesser crime necessarily involved in the major crime so charged. SeeCom. ex rel. Moszczynski v. Ashe343 Pa. 102, 21 A.(2) 920. As to a conviction for a constituent misdemeanor involved in a felony not being permitted, see Com. v. Adams2 Pa. Super. 46.

Since the defendant has the constitutional right "to demand the nature and cause of the accusation against him" (Pennsylvania Constitution, Art. 1, Sec. 9), it follows that he cannot be convicted of an offence which is not the accusation made against him or any constituent thereof.

Since the State has never declared any conduct to be "murder of the third degree" no person is compelled to answer to that charge, and no person can be convicted in the courts of Pennsylvania on any such charge. Since malice is an ingredient of murder but not of manslaughter, "murder of the third degree" cannot by any process of reasoning be construed as voluntary manslaughter. Blackstone says that manslaughter when voluntary arises from the sudden heat of the passions, murder from the wickedness of the heart." (4 Blackstone 190). A sentence to the penitentiary on a verdict like the one now before us cannot be permitted to stand merely on the trial judge's conjecture that the jury *Page 454 meant to convict the defendant of voluntary manslaughter.

The "special attorneys" for the Commonwealth say in their paper book: "During the course of the trial reference was made by several witnesses to the four degrees of Homicide. These were referred to as having been explained to the defendant, at his request, and the penalties thereon. Commonwealth understood that Murder in the third degree in this testimony was Voluntary Manslaughter. Defendant and his Counsel, likewise, so understood, as Counsel brought out reference to it as such in his cross-examination of James Yenser. The Court4 also so understood the term as it was openly referred to in pleas to the jury, and in the testimony of witnesses. We may, therefore, from its common use in the case, deduce its meaning and the jury in its finding adopted this language and convicted in that degree . . . Voluntary Manslaughter was freely referred to during the trial, as Homicide of the third degree . . . The jury had reasonable cause to believe they could find a verdict of guilty of Murder in the Third Degree."

All this proves is that this case was tried in such a loose and irregular manner as naturally to beget this monstrosity of a verdict which has no "ancestry" known to the law and which we trust will never have any courtroom "posterity". Every member of this Court is surprised that the trial judge and the Commonwealth's "special counsel" would apathetically stand by and after *Page 455 hearing this ridiculous and meaningless verdict repeated thirteen times would permit it to be recorded. The jury should have been sent back to the jury room with proper instructions as to the four verdicts possible under this indictment, to wit: Guilty of murder in the first degree, guilty of murder in the second degree, guilty of voluntary manslaughter, and not guilty. In Com. v. Huston46 Pa. Super. 172, at p. 220, the Superior Court quoted with approval the following from 1 Bishop's Criminal Procedure, sec. 831: "In every case of a verdict rendered the judge should look after its form and substance, so far as to prevent a doubtful or insufficient finding from passing into the records of the court, to create embarrassment afterwards, and perhaps the necessity for a new trial." The court also said, at pages 219 and 220: ". . . The administration of justice must become a mockery if the courts were required to receive and record every verdict tendered, however informal and unresponsive to the issue . . . When the verdict tendered is defective in form only, being sufficient in substance, it is proper for the court to direct the jury how it may be amended. When the finding is defective in substance, the correction must be made by the jury, and the court should be careful to avoid suggesting what the substance of the verdict shall be. When a jury tenders a verdict which is defective in substance, uncertain, repugnant, or not responsive to the issue, it is proper for the court to reject it, as not warranted by law, call the attention of the jury to the defect, instruct them as to the form of verdict in case they mean to acquit or convict the defendant and send them back to their room where they can, untrammeled by the presence and influence of others, find such verdict as they think proper", (citing numerous cases).

No authority is needed to sustain the proposition that a defendant cannot be legally convicted of a crime neither charged in the indictment nor a necessary constituent of any crime so charged, but on those rare *Page 456 occasions when such a question has come before the appellate courts of this State they have consistently held as we hold in this case that such a conviction is a nullity. In Walters etal. v. Com.44 Pa. 135, the defendants were charged with murder and voluntary manslaughter. The jury found them guilty of only involuntary manslaughter. Upon appeal this court said: "The prisoners have been acquitted by the verdict of all crimes charged in the indictment, and convicted of a charge not made in or embraced by it. We will therefore simply reverse, for no new trial could be ordered in such a case."

In Com v. Adams, supra, the Superior Court ruled that for reasons that are therein cogently set forth "upon an indictment for murder, there can be no conviction of aggravated assault and battery, or simple assault and battery", and there held that a defendant who had been tried for murder and convicted of assault and battery was entitled to have the judgment on the verdict reversed and to be discharged from imprisonment.

In 25 Standard Encyclopedia of Procedure, pp. 990, 991, 992, there is set forth the following: "Verdicts in criminal prosecutions must be responsive to the charge in the indictment or information, and must answer the issues raised by the indictment or information and plea, and determine the guilt or innocence of the accused of the crime charged against him. A verdict is irresponsive . . . if it finds the defendant guilty of an offense not charged against him, or included in that charged. If there is any uncertainty as to whether the defendant is found guilty of the offense with which he is charged, or of another, the verdict is objectionable . . . A good verdict of conviction must contain either within itself or by reference to the indictment or information all the elements of the crime." (Citing cases from many jurisdictions.)

The judgment of the court below is reversed, the sentence is set aside, and the defendant shall be forthwith discharged from imprisonment unless there is cause for his detention other than the sentence now vacated.

1 There was no allegation of the defendant's having been beaten by State Motor Police officers.

2 Since this opinion was filed the District Attorney has submitted a statement saying that in testifying as he did he made "an unfortunate choice of words", and that the thought he intended to convey was that "since there were no marks or any indication of Komatowski's having been beaten", he, the District Attorney, meant by his statement to the defendant, that the latter should either submit to a physical examination to disclose whether or not he had been beaten or agree that he would thereafter make no charge of having been beaten while in custody.

3 As to the necessity of precision in the prescriptions of the law, see Blackstone, Book 1, sec. 46, and Book 4, sec. 2.

In the argument of Jeremiah S. Black in the case in which he secured an order from the Supreme Court of the United States for the release in habeas corpus proceedings of Milligan, Bowles and Horsey (Ex parte Milligan4 Wall. 2), who were under sentence of death imposed upon them by a military commission convened at Indianapolis in 1864, Attorney Black said: "My clients were dragged before this strange tribunal, and after a proceeding which it would be mockery to call a trial, they were ordered to be hung. The charge against them was put into writing and is found on this record, but you will not be able to decipher its meaning . . . The judge advocate must have meant to charge them with some offense unknown to the laws, which he chose to make capital by legislation of his own, and the commissioners were so profoundly ignorant as to think that the legal innocence of the parties made no difference in the case . . . The commissioners are not on trial; they are absent and undefended; and they are entitled to the benefit of that charity which presumes them to be wholly unacquainted with the first principles of natural justice, and quite unable to comprehend either the law or the facts of a criminal cause."

4 The trial judge in his charge referred to the defendant as asking the Chief of Police before the alleged confession was made "to explain the four degrees of homicide". Whether these words were quoted from Komatowski or are the trial judge's is not indicated. In narrating to the jury another witness's testimony the trial judge said, "Corporal McIlvaine explained the four degrees of homicide". Whether in saying this the trial judge was using Corporal McIlvaine's words or his own does not appear. Such expressions from the trial judge naturally misled the jury to return this improper verdict, which is apparently without a parallel in the annals of the criminal courts of this Commonwealth. *Page 457


  1. Ronald,

    I hope you're gathering these terrific stories and putting them in a book. Great writing. Thanks,


  2. Not quite the kind of reading one usually does on one's birthday! Happy B'day Prof! I appreciate your thoughts!...I do hope something bigger comes out of these stories...One Day!!!...THanks!