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COMMONWEALTH v. STOKES (11/16/73)

decided: November 16, 1973.

COMMONWEALTH
v.
STOKES, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, Nos. 1509, 1510 and 1511, in case of Commonwealth of Pennsylvania v. Thornton Stokes.

COUNSEL

William K. Sayer, Assistant Defender, with him Thomas C. Carroll and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Benjamin H. Levintow, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 225 Pa. Super. Page 412]

Appellant was convicted of carrying a concealed deadly weapon, playfully or wantonly pointing a firearm,

[ 225 Pa. Super. Page 413]

    and attempt with intent to kill. Only one of the several issues raised merits discussion: whether there was sufficient proof of a corpus delicti to support the admission of appellant's confession.

At the time of the trial the crime of pointing a firearm was defined as follows: "Whoever playfully or wantonly points or discharges a gun, pistol or other firearm at any other person, is guilty of a misdemeanor . . . ." Act of June 24, 1939, P. L. 872, § 716, 18 P.S. § 4716 (now repealed). The crime of attempt with intent to kill was defined in relevant part as follows: "Whoever . . . by drawing a trigger or in any other manner, attempts to discharge any kind of loaded arms at any person . . . with intent to commit the crime of murder, although no bodily injury is effected, is guilty of felony [ sic ] . . . ." Act of June 24, 1939, P. L. 872, § 711, 18 P.S. § 4711 (now repealed).

The testimony may be summarized as follows: When two police officers entered an apartment at the request of the tenant, they observed appellant in the bedroom pointing a rifle at them. As the officers retreated from the apartment, one officer fired a shot. Venturing back in, the officer saw appellant "raising his rifle again." Appellant closed the bedroom door. The officers called for reinforcements, and when these arrived, appellant threw out his rifle and surrendered.

This evidence was sufficient to sustain a conviction of pointing a firearm. However, a conviction of attempt with intent to kill required proof of "drawing a trigger or in any other manner . . . attempt[ing] to discharge" the rifle. This additional proof was supplied by appellant's statement to the police: "The door opened, I saw a gun, and grabbed the rifle. The cop fired twice and I shut the door. He hollered 'Come out' and I did. The gun must have jammed. I could see his hand and when I pulled the trigger, it wouldn't work. I pulled the trigger and worked the pump. It

[ 225 Pa. Super. Page 414]

    wouldn't fire." There was no other evidence that appellant attempted ...


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