Appeal from order of Superior Court, Oct. T., 1970, Nos. 412, 413 and 414, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1968, Nos. 916, 918 and 919, in case of Commonwealth of Pennsylvania v. James Clopton.
Jeffry A. Mintz, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
J. Bruce McKissock, Assistant District Attorney, with him Edward B. Greene and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Former Mr. Chief Justice Bell and former Mr. Justice Barbieri took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones joins in this dissent.
James Clopton was convicted after a non-jury trial in Philadelphia of: (1) attempted murder; (2) assault and battery; and (3) unlawfully carrying a firearm
without a license.*fn1 Following the denial of post trial motions, a prison sentence was imposed on each indictment; the sentences to run consecutively. On appeal the Superior Court affirmed the judgments without opinion, with Judges Montgomery and Hoffman dissenting. 217 Pa. Superior Ct. 783, 269 A.2d 365 (1970). We granted allocatur.
The trial testimony established the following facts.
Clopton, a resident of Oklahoma, came to Philadelphia for the purpose of killing Billy Lee Riner, for which he was to be paid $1,000; about 3 a.m. on December 2, 1969, Clopton and James Sumpter entered Riner's apartment and told him he was going to be killed; Clopton struck Riner three times with a shotgun and forced him at gunpoint to accompany the intruders to a waiting automobile operated by John Lauderdale; Riner was placed in the front seat between Clopton and the driver; the former held a pistol to Riner's side while Sumpter sat in the back seat armed with a shotgun; after the automobile traveled a few blocks during which Clopton again indicated it was the intention to kill Riner, the latter grabbed Clopton's pistol by the barrel and in an ensuing struggle managed to grab the steering wheel swerving the automobile, and to gain possession of the pistol from Clopton; Riner then fatally shot Sumpter and Lauderdale and pistol-whipped Clopton; the police arrived on the scene shortly thereafter.
The only assignment of error now asserted challenges the legality of Clopton's conviction of and sentence for the crime of attempted murder.
Pennsylvania statutes contain two provisions specifically dealing with the crime of attempted murder. The Act of June 24, 1939, P. L. 872, § 710, 18 P.S. § 4710, the
basis of one of the indictments of which Clopton was acquitted, prohibits "assaults with intent to kill". This statute provides that: "Whoever administers, or causes to be administered by another, any poison or other destructive thing or stabs, cuts or wounds any person, or by any means causes any person bodily injury, dangerous to life, with intention to commit murder, is guilty of felony . . . ." This statute was clearly inapposite herein since the superficial injuries (ones certainly not dangerous to life) sustained by Riner were not inflicted with the intent to commit murder, but merely to force him to the place where such a homicidal wound could be inflicted.
The other statutory provision is entitled "Attempts with intent to kill", Act of June 24, 1939, P. L. 872 § 711, 18 P.S. § 4711 (hereinafter 18 P.S. § 4711). This section punishes, as a felon: "Whoever attempts to administer any poison or other destructive thing, or attempts to cut or stab or wound, or shoots at any person, or, by drawing a trigger or in any other manner, attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate or strangle any person, with intent to commit the crime of murder, although no bodily injury is effected. . . ." Maximum penalty under the statute is seven years imprisonment. To violate this provision when a gun is the criminal instrumentality, the accused must have actually pulled the trigger, and one who stops as he is preparing to shoot, even with the requisite specific intent, cannot be validly convicted under this section of the statute.*fn2 Thus the
classic cases under the statute, involving a gun, are where the would-be slayer draws the trigger with the requisite intent only to have the weapon misfire, or where he actually shoots but entirely misses his target.
Pennsylvania courts, in applying 18 P.S. § 4711, have followed its words with exactitude devoid of even the slightest expansion. Thus the giving of poison to an agent, under the belief that said agent would deposit it in the spring of the intended victim, did not amount to an attempt to administer poison under the statute. See Stabler v. Commonwealth, 95 Pa. 318 (1880). Similarly, in Commonwealth v. Young, 446 Pa. 122, 285 A.2d 499 (1971), we recently held that holding a gun to the victim's head and pulling the trigger is not sufficient to convict under 18 P.S. § 4711, if the gun merely "clicked" and there was no proof that it was in ...