Com. v. Clopton

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtEAGEN; ROBERTS J., files a dissenting opinion, in which JONES; ROBERTS; JONES
Citation289 A.2d 455,447 Pa. 1
Parties, 54 A.L.R.3d 601 COMMONWEALTH of Pennsylvania, Appellee, v. James CLOPTON, Appellant.
Decision Date21 March 1972

Page 455

289 A.2d 455
447 Pa. 1, 54 A.L.R.3d 601
COMMONWEALTH of Pennsylvania, Appellee,
James CLOPTON, Appellant.
Supreme Court of Pennsylvania.
March 21, 1972.

[447 Pa. 2]

Page 456

Vincent J. Ziccardi, Defender, John W. Packel, Chief, Appeals Div., Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Chief, Appeals Div., J. Bruce McKissock, Edward B. Greene, Asst. Dist. Atty., Philadelphia, for appellee.

[447 Pa. 1] Before JONES, O'BRIEN, ROBERTS and POMEROY, JJ.

[447 Pa. 2] OPINION

EAGEN, Justice.

James Clopton was convicted after a nonjury trial in Philadelphia of: (1) attempted murder; (2) assault and battery; and (3) unlawfully carrying a firearm [447 Pa. 3] without a license. 1 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 $1000; 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 Cloption'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 pistolwhipped 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 sectence 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 [447 Pa. 4] 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

Page 457

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. 2 Thus the [447 Pa. 5] 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, Pa., 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 fact loaded. Since there was no evidence in the case at bar that Clopton pulled the trigger, the Commonwealth properly did not seek an indictment under this section.

The Commonwealth did, however, proceed to indict and prosecute Clopton under a theory of common law attempted murder. The Act of June 24, 1939, P.L. 872 § 1101, 18 P.S. § 5101 relevantly provides that:

'Every offense now punishable either by the statute of common [447 Pa. 6] law of this Commonwealth and not specifically provided for by this act, shall continue to be an offense punishable as heretofore.'

At common law, any attempt to commit an indictable crime (not an attempt in itself) was a misdemeanor. See 2 Bishop, Criminal Law § 743 (1923); 1 Bishop, Criminal Law § 772 (1923); Perkins, Criminal Attempt and Related Problems, 2 U.C.L.A.L. 319 (1955).

The Court in Commonwealth v. Ellis, 349 Pa. 402, 404, 37 A.2d 504, 506 (1944) offered a classic definition of such an attempt, to wit:

"An attempt . . . is an overt act, done in pursuance of an intent to do a specific thing; tending to the end but falling short of complete accomplishment of it. In law, the definition must have this further qualification,--that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution. So long as the acts are confined to preparation only, and can be abandoned before any transgression

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of the law or of others' rights, they are within the sphere of intent, and do not amount to attempts': Commonwealth v. Eagen, 190 Pa. 10, 21--2, 42 A. 374, 377.'

We find that the facts of the instant case satisfactorily fulfill this definition. Clopton's act of forcing Riner, at gunpoint, out of his apartment and into a waiting vehicle, with the expressed intent to murder him as soon as he could be speeded to the appropriate destination, and the accomplishment thwarted only by a near-miraculous burst of energy from the intended victim, would most certainly constitute an overt act, in trangression Both of the law and of another's rights, in pursuance of an intent to do 'the specific thing' of murder, sufficiently proximate to the crime but falling short of its completion. Clopton's repeated statements concerning his intent to kill Riner made all his acts unequivocally related to the crime of murder.

[447 Pa. 7] Having concluded that such acts would constitute common law attempted murder, the issue this Court must now face, and on which this case turns, is whether the promulgation of statutes defining and punishing specific forms of the crime of attempted murder have pre-empted the field, thereby ousting the court of common law jurisdiction in this area, at least insofar as attempts via poison, knives and guns are concerned. In determining this question, we are mindful of the mandate of the Act of June 24, 1939, P.L. 872 § 1104, 18 P.S. § 5104, that:

'In all cases where a remedy is provided or duty enjoined, or any thing directed to be done by the penal provisions of any act of assembly, the direction of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect.'

We approach the problem in two ways. Firstly, guided by the presumption of the Act of May 28, 1937, P.L. 1019, Art. IV § 52, 46 P.S. § 552: 'That the Legislature does not intend a result that is absurd, impossible of execution or unreasonable', we make the inquiry into whether it would indeed be 'unreasonable' to hold that the statutes do not work a derogation of the common law crime of attempted murder. 3 Secondly, since our attempted murder statutes are taken directly from the English enactments, 4 we find that the experience [447 Pa. 8] of the English courts in the application of such acts, although not binding, proves to be most instructive.

Turning to our consideration of legislative intent, 5 we must determine why the legislature would define, with such specificity, the most aggravated form of the crime, this extreme being the most obvious to discern and easiest to establish. Certainly, if our lawmakers intended that lesser acts be punishable as Attempted murder, it would have made much greater sense to define the acts that would most minimally constitute the crime. At the very least, if the legislature wished that acts more remote to the completed crime were to be considered as attempted murder, it would not have defined it at all. Instead, the legislature would have simply promulgated a general enactment that all attempted

Page 459

murders were to be punishable by a seven year maximum term of imprisonment, leaving to the courts the difficult task of defining and line drawing under the precepts of the common law.

For the legislature to have rationally specified the most aggravated form of attempt without intending to pre-empt the field would require that...

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