Stabler v. Commonwealth

• Decision Date: 25 October 1880
• Citation: 95 Pa. 318
• Court: Pennsylvania Supreme Court
• Parties: Stabler v. The Commonwealth.

95 Pa. 318

Stabler versus The Commonwealth.

Supreme Court of Pennsylvania.

October 5, 1880.

October 25, 1880.

October 5th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1880, No. 188 W. C. Moreland and Newton C. Cook, for plaintiff in error.— An attempt to commit a crime is an endeavor to accomplish it, carried beyond mere preparation, but falling short of the ultimate design. In Kelly v. Commonwealth, 1 Grant 488, &c., under an indictment for murder, in which the Commonwealth charged that the crime was committed in an attempt to commit rape, THOMPSON C. J., says: "An attempt is an ineffectual offer by force. Acts are necessary to constitute an attempt. It should be actual, not constructive. The intent is not equivalent to an act demonstrative of an attempt." The proof here did not sustain the allegation. The Act of 1860, sect. 82, Pamph. L. 403, under which the indictment was drawn, follows the statute of 1 Vict. c. 85, sect. 3, which has received the construction for which we contend: Regina v. Williams and Ross, 1 Car. & K. 586; s. c. 1 Dennison s Crown Cases 40. Whilst it is true that foreign cases cannot override the express words of a Pennsylvania statute, it is equally true that where a foreign statute agrees with our own, and such statute has received a judicial construction, the latter will be accepted as some authority upon the true interpretation of the statute, and what is intended to be directed or prohibited by it.

The case of People v. Bush, 4 Hill 134, on which the court below relied, was decided on a statute of New York differing materially in some of its language from the Act of 1860.

John S. Robb, District Attorney, for the Commonwealth.

Mr. Justice MERCUR delivered the opinion of the court, October 25th 1880.

This indictment contains six counts. A conviction was had on the first and sixth, and sentence was pronounced on each separately. The first charges a felonious attempt to administer poison to one Waring with intent to commit the crime of murder, and feloniously to kill and murder him; the sixth, with wickedly soliciting one Neyer to administer poison to said Waring. No error is now alleged to the conviction and judgment on the sixth count. The conviction on the first, and the judgment thereon, are assigned for error. This count is framed under sect. 82 of the Act of March 31st 1860, Purd. Dig. 340. It declares, "If any person shall attempt to administer any poison or other destructive thing, or shall attempt to cut or stab or wound, or shall shoot at any person, or shall, by drawing a trigger or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall attempt to drown, suffocate or strangle any person, with intent, in any of the cases aforesaid, to commit the crime of murder, he shall, although no bodily injury be effected, be guilty of felony, and be sentenced to pay a fine of $1000, and undergo an imprisonment, by separate or solitary confinement, not exceeding seven years."

All the testimony to prove the first count was the evidence of Neyer. He testified to a conversation which he had with Stabler more than a year before the information was made against him. His testimony is substantially this. Stabler stated his grievance against Waring, and a determination to be revenged. He solicited witness to put poison in Waring's spring so that the latter and his family would be poisoned, offering him a reward for so doing. He handed witness the poison, and directed how it should be administered. Witness replied he would have nothing to do with it, and handed the poison back to Stabler. While they were conversing the coat of witness was off; on putting it on three or four days thereafter, he found a package in the pocket, and believed it to be the one that Stabler had handed him. Soon after this witness left the state, and did not return until about a year thereafter. He then for the first time related the conversation to a person, and handed him the package of poison. He further testified that he never had any intention of administering the poison, and never did anything towards it, and had no other conversation with Stabler about the matter.

Is this evidence sufficient, within the meaning of the statute, to prove an attempt on the part of Stabler, to administer the poison? The act recognises a distinction between intent and attempt. The former indicates the purpose existing in the mind, the latter an act to be committed. Merely soliciting one to do an act is not an attempt to do that act: Rex v. Butler, 6 C. & P. 368; Smith v. Commonwealth, 4 P. F. Smith 209. In this last case it was said, "in a high, moral sense it may be true that solicitation is attempt; but in a legal sense it is not." In some cases it has been held, although a solicitation to commit a misdemeanor,...