*1 which, deprived advocate any way appellant to trial his court and right impartial jury. of sentence affirmed. Judgment Pomeroy Mr. Justice concurs the result. Appellant. Commonwealth v. Dzvonick, *2 J., Before C. 1972. September Argued 28, Jones, Nix and Mander- O’Brien, Roberts, Pomeroy, Eagen, ino, JJ.
Arnold Friedman, M. him Edward B. Fried- appellant. man, for Campbell, Attorney,
Robert L. Assistant District Mary Attorney, Carol Los, him Assistant District Duggan, Attorney, and Robert W. District Com- appellee. monwealth, 19, December Opinion by Mb. Justice Roberts,
1972: April At 6:00 a.m., Officer Uziel droye Borough Glassport Department, up Police *3 Borough Appellant, Police Station. Darrell immediately Dzvonick, came out of the station toward knife length. Officer Uziel’s car with a held at arm’s lunged He through at the officer with the knife open car window, but did not “cut, wound” stab, Appellant immediately officer. was arrested and subse quently charged attempt both with with intent to kill1 pleaded guil and assault with intent to maim.2 He not ty charges jury. to both and was tried a before September jury
On returned verdicts guilty of not of guilty with intent to kill and on the second of assault with intent to maim. Appellant post-trial no filed motions. after However, change a appeal of Superior counsel, Court, permitted he was to file motions for a new trial and judgment pro arrest “nunc tunc”. The motion for a trial new was later withdrawn, and the motion in judgment arrest of was denied. 24, 1939, 872, §711, Act of June L. P. §4711. P.S. 24, 1939, 872, §712, Act of June P. L. P.S.
Appellant appealed the denial of his motion Superior judgment af- arrest of Court which by granted per allocatur. firmed curiam order. We Appellant principal cites three errors the basis appeal. relief He asserts that the verdict guilty of assault intent to maim as returned with jury unsupported and recorded the court is judg evidence and therefore his motion arrest granted. ment should have been The Commonwealth jury’s supported that the concedes verdict was but nevertheless claims that the court evidence,3 jury’s guilty attempted molded the verdict to that of response appellant assault In with intent to maim. guilty asserts that the court did not mold the verdict to nor could it done offense, have so after- discharging jury. Finally appellant ar contends, guendo, if that even the verdict was so molded it could “attempted
not stand because there is no such offense as disposi assault intent to In maim.” view our tion of the case we need not deal with the last chal lenge.
The Commonwealth claims that after the re- guilty turned verdict of of assault with intent (the completed offense), maim the court molded the claim to maiin. However, Commonwealth’s of such supported molding is nowhere in the record. The fol- lowing excerpt from the record establishes that “molding” which occurred court’s inser- *4 jury inadvertently tion the which the date, had 3 stabs, any person, . . . cuts or “Whoever wounds with intent maim, disfigure person, guilty felony. disable such . . .” 872, 2-1, 1939, §712, P. L. 18 Act .Tune P.S. At trial Officer although might he Uziel testified have been touched with the definitely cut, any way. knife he was wounded or stabbed support no evidence to the Thus there was of the offense.
102 read the verdict?
omitted. “Minute will Who Clerk: the defendant I The finds jury will. The Foreman: All on the right. second count. guilty You The Court: correct? Is that find him not the first count? guilty will The Court: We affirmative.) indicates (Jury of the jury, record the : Members verdict. Minute Clerk it recorded Harken to hath verdict as Court your Darrell between the and the defendant Commonwealth first wherein the defendant Dzvonick, charged count, with intent second count, attempt kill, find the de- you say you with intent maim, as to fendant not the first count and guilty I to the Court second count. mention might Well, All right. left out the date. jury The Court: mold today’s date, we’ll but verdict; including : No. no objection by there’s counsel? Mr. Mansmann 1969. make it 29, We will September The Court: (Jurors Excused)” no other of the verdict molding record discloses either before or after
whatsoever
trial
judge,
been
excused.
once the
has
Moreover,
jury
can no longer
and has
verdict
discharged
dispersed,
Martin,
the trial
Commonwealth v.
judge.
be molded
A.
v.
587,
379 Pa.
109
2d 325
Commonwealth
(1954);
A. 2d
cf. Com
Johnson,
287,
359 Pa.
59
128 (1948);
v.
215 Pa.
A.
Corbin,
monwealth
Ct.
257
Superior
63,
2d 356 (1969).4
4
severely
molding
permissible
The situations
are
They
principal
categories—molding
fall
two
circumscribed.
into
recording
discharge
jury,
prior
the verdict and
and mold-
recording
discharge.
ing
such
after
recording
accepted
there are two
methods
Prior to
Laub, Pennsylvania
§244,
molding.
Guide,
See
Trial
at
of verdict
jury’s
only,
(1959).
If the
error is defective
form
as here
416
omitted,
judge may
open
it in
then
correct
the date was
where
jury.
Minoff,
acquiescence of the
Commonvwealth v.
court
;
Smyth,
(1949)
see also Newsom v.
A. 2d 145
Pa.
1958),
denied,
(4th
cert.
U.S.
103 record and jury returned the by Tlie verdict not in the circum the court was could not, ed by convicted be molded.5 stands Thus, appellant stances maim. the offense—assault readily both the Commonwealth appellant Since by is supported concede that the “assault” that the verdict the it follows necessarily evidence, not stand. may is order of Court Superior
Accordingly, in judgment grant- and the motion arrest reversed ed. Eagen in
Mr. Justice
concurs
result.
by
Concurring
Opinion
Mr.
Nix:
Justice
I concur
but
by
majority
with the result reached
offer
their conclu-
not with
reasons
they
support
However,
substantive,
(1959).
if the
the court must send
error
jury back
for further deliberation.
with additional
instructions
445,
(1943),
Komatowski,
Commonwealth v.
Pa.
sion. As out the Chief Justice his pointed and the indictment, evidence, court establish the appellant unequivocally tried for the crime alleged *6 the intent to maim. The fact that the verdict slip incorrect and listed the an “assault with the as intent to maim” not is immaterial and obviously clearly a justification for an ver- otherwise reversing proper dict.
The true issue is whether presented appeal maim a crime assault with the intent to is of under the laws cognizable this Commonwealth. The crime of assault with the intent to maim was not a distinct common statutory law crime1 but is of The Act of June P. L. origin. 18 P.S. 24,1939, 872, §712, Section 712 unlawfully “Whoever provides: and at shoots maliciously, any person, or, by drawing a or other trigger by any manner, attempts discharge kind of any loaded arms at or cuts any stabs, person, or wounds any person, maim, disfigure or disable is of such and con person, felony, shall be sentenced to a viction, fine not exceed pay two thousand dollars or ing ($2,000), undergo impris or confinement onment, by separate solitary at labor, (5) five or both.” exceeding years, The legislature having already provided punishment assault,2 assault and simple battery,3 aggravat ed assault and battery4 was concerned in this section an assault with a punishing firearm or a battery 1 ‘aggravated recognized “The so-called assaults’ were not as Any offenses at common law. distinct criminal assault was a mis- aggravation, present, demeanor and circumstances if could be fixing penalty.” Perkins, taken into consideration Criminal (1957). Law 500 24, 1939, 872, §708, P. L. Act of June 18 P.S. §4708. 3 Id. 24, 1939, 872, §709, of June P. L. Act 18 P.S. §4709. wounding stabbing or cutting, the assault where accompanied by maim. The battery an intent legislative clearly language a discloses of this section mayhem. defining commit an intention person weapon discharging at another a The distinguished from in this section is defined point crime as defined Section deadly weapon5 maim must ing intent to a stabbing cutting, accompany or wound the act. So too a aggravat only distinguished person from an ing of battery as defined Section ed assault P. L. March to maim. Act the intent substantially provision similar contained 382, §83, appropriate present it therefore Section 712; definition law for a for one to look to the common used in this “maim” as section. word Law Black^s 1968) (Rev’d. 4th ed. defines 1104-05 Dictionaey per deprive a “maim” as follows: “At common law, *7 part body, of which or of the the loss a member son of defending capable fighting; or of him less of renders mayhem.” if re the intention Thus, to commit himself; accomplished effectively quired by, 712 Section mayhem completed made out.6 of has been offense support for the crime the conclusion that Further attempt may- to 712 is an commit Section described design of the statute itself. hem is furnished immediately succeeding sec- and the two Section 712 714) punish specific (713 acts where there is and tions pro- maim followed Section 715 an intent to 5 discharges gun, wautonly points playfully “Whoever any person. 24, pistol . .” of other . Act June or other firearm at §716, 872, 1939, §4716. P.S. P. L. 18 6 §1) p. quoting (Hawk. Bishop ed. Hawkins P.C. Curw. any part “mayhem of as ‘a hurt of a at the common law defines able, fighting, body whereby in either he is rendered less man’s ” Bishop annoy adversary.’ 2 On Oetm. his himself or defend 1923). (9th §1001 ed. Haw statutory completed mayhem.7 vides for of offense employed covering format in basic Section 712 both and assaults batteries is seen when we read Sec together. provides tions 713 and 714 Section 714 punishment provides Section 713 battery for the these where acts involve the use of explosives accompanied or corrosive substances and are very an intent to maim or from where nature possibility maiming of the act the is imminent. The statutory dealing clear in scheme with this area com pels legislature attempting that the conclusion attempts in Sections 713 and 714 to define mayhem. commit the offense Having concluded that the crime announced Sec- obliged attempt tion is itself an I am to find that legally cognizable attempt- there cannot be a crime of ing to violate Section 712. It is basic law that there attempt. By cannot be an to commit an defini- pursuance tion an “is an overt act done in specific thing, tending an intent to do a to the end but falling complete accomplishment short of of it. In law, qualification, the definition must have this further sufficiently proximate the overt act must be intended crime to form one the natural series of acts requires which the intent for its full execution. So provides part: unlawfully, wilfully Section “Whoever maliciously, by explosion gunpowder, explosive or other substance, burns, maims, disfigures, disables, grievous bodily or does any person, felony. harm . . .” 18 P.S. provides part: unlawfully Section “Whoever and mali- any ciously gunpowder, explosive substance, causes or other *8 to, explode, or sends or delivers or causes to be taken and received any by any explosive person, substance, any dangerous or other thing, upon, applies or or noxious or casts throws at or or otherwise any any person, fluid, explosive corrosive or to other destructive or substance, burn, maim, disfigure any to with or disable grievous bodily person, person, or to do some harm to such felony. . .” 18 P.S. .
107 only, preparation long the are confined to acts transgression any of the law abandoned before can be sphere they rights, of intent are the or of others’ within omitted.) attempts.” (Citations to and do not amount A. 2d 37 Pa. Ellis, 402, 404, Commonwealth v. attempt being (1944). the first an Thus, 505-06 beyond attempt step preparation, commit an at- an to prep- tempt necessarily realm of fall must within criminal not attach aration for our law does impressed responsibility. the dissent’s I with am not battery. The crime a distinction between an assault and provides punishment of for forth set Section at) weapon a (discharging and also both an a wounding) battery (cutting, stabbing either where requisite accompanied The basis intent. rejection attempt concept commit of an act is the overt not turn whether Section does battery offense rather that the the assault but mayhem. attempt an commit as defined is fact reject argument Finally, al- I that must also pro- though charged of the conduct fell short acts an amounted to Section 712 it nevertheless scribed mayhem. to commit the offense attempting appellant stab Here the was accused of through open police car officer a knife window with arguable maim. it with the intent to While may lunging re- the knife be sufficient act and constitute these acts from the realm of intent move mayhem it is clear to commit common law legislature preempted has the area and ousted that the jurisdiction. analogous In an court of common law majority court this stated Common- situation (1972) Clopton, : 289 A. 2d wealth v. Pa. 1, 8, legislative “Turning we to our consideration intent, why legislature would define, must determine aggravated specificity, most form of the crime, such being extreme most obvious discern *9 Certainly, if our easiest to establish. lawmakers in- punishable attempted tended that acts be lesser as greater it have made much murder, would sense to minimally define the acts that would most constitute very legislature if the least, crime. At the wished that acts more remote to the crime were to be considered it would murder, have defined at all.” it Superior would reverse the
I, therefore, Court and grant judgment theory motion arrest of on the punishable that the instant is not a crime under laws this Commonwealth. Dissenting Opinion Mr. Chief Justice : Jones compelled I am to dissent. appealed The error from in this case is not the product any during event which occurred before, prejudicial rights after trial which was appellant. genesis The error in this case has its in the misapplication confusing trial court’s of the somewhat language of Section 712 of The Penal Code.1 Unfortu nately, majority the decision of the converts what was absolutely non-prejudicial otherwise trial court error grounds judgment. into for an arrest emerged produced facts from Two the evidence at appellant lunged trial: first, at Officer Uziel in an apparent attempt to stab him; second, intended victim able to avoid the thrust and was never actually Unquestionably appellant’s stabbed. con- jury guilty for the duct was sufficient to find him question appeal some sole crime; is whether jury appellant proper found the of crime. slip The record reveals that the verdict which was jury charges against sent out with the listed the Dar- rell Dzvonick as: 872, §712, of June P. D. Act P.S. with, Count—Attempts Kill intent to
“1st to Maim.” with intent “2nd Count—Assault was: returned guilty. Count not “1st Guilty.”
“2nd Count appears slip it on the face of the verdict Thus, *10 completed appellant offense of the the stands convicted correctly pointed to maim. It is of assault with intent appel- by majority agreed by all that the and to out the completed be- offense lant cannot be convicted language of of the offense cause the the statute, under requires be that there intent to maim” “assault with per- wounding stabbing, cutting of another an actual cutting, admittedly no where there Here, son. was completed unwarranted. for offense was conviction the record reveals of the entire examination However, appellant against the returned the indictment actually attempted charged in- with him with presented at to the Furthermore, tent maim. evidence jury, charge judge’s a the the initial to the trial, supplemental charge given during course appellant jury’s tried that the was deliberation all show attempted to maim. for crime of intent assault with every slip, exception In with short, appellant committed refers reference crime offense. to rather than stabbing, attempted a result of the a two-count As agaist appellant was returned indictment dispute, grand jury. is not The first count, charged appellant attempt to stab and cut, that the “did to murder.” The second count wound with intent... appellant charged make that the “did the indictment and wound, and . . . did cut assault, stab, disfigure intent . . . then and there to maim, empha- “attempt . .” to” are and disable. . The words only they clearly that the in- because show sized charged appellant attempted as- dictment they because are but also maim, sault with printed standard typewritten to an otherwise addition the com other defendants with form used only for the addition pleted reason The crime. “attempt the defendant to show that to” was words attempted intent to for assault with was indicted completed offense.2 not the maim and testimony presented trial both the at the proof prosecution further that at and the defense ambiguity no on either side the time trial there was subject concerning clear that of the trial. It necessary cutting an actual neither considered side maim. intent to of an assault with conviction attempt- appellant Any tried for that the doubt dispelled maim the trial intent to ed assault with judge’s charge delivered at the close testi- majority recognizes opinion mony. that the Even the jury’s judge “specifically limited the consideration to by attempting of ‘assault wound stab, the offense *11 judge in intent to which case the maim’,” cut with the appellant “guilty jury to find the of the instructed the count.” second
During jury of the course this the deliberation, judge asking for a of sent a note the definition presence judge In the of counsel the trial “maim.” explain explained term and went on to that: “The the of the the count indictment is that an crux of second putting in force fear force or of assault or threat printed indictment, the form while The use of convenient probably cases, mixup one reason for the is this case. most body Although language changed the the the indictment was “attempted assault with intent to maim” as reflect the second changed heading count, of the indictment not the read: Count—Attempts intent to kill with “1st with intent to maim.” “2nd Count—Assault language Coincidentally, precisely appeared the that is which jury. slip out the went the verdict which
Ill attempt is made the time the the intent at injure attempt or to stab wound an there’s [sic], Although supplemental is person.” instruction might un- precise its desirable, be otherwise not as as jury impact to find instruct mistakable is to they he guilty believe count if of the second defendant to maim. guilty attempting an assault with intent be logical can drawn Thus the inference Count—Guilty” jury’s is that of “2nd from the they an the evidence established had determined that notwithstanding on the verdict that to maim, slip as “Assault with had been listed the second count majority completed The offense. intent to maim”, jury maintaining au- “A is without correct in that: thority guilty a more serious to find a defendant court.” How- to it offense than that submitted thing. jury no Where in this did such case the ever, produced at trial and indictment, evidence judge of the all maintain that the “second trial intent count” assault with is the offense guilty jury returns a verdict maim, holding no basis for a that the second there is count, found defendant offense. only remaining be
The issue to decided was majority, an reached whether there is such i.e., “attempted offense as maim.” assault with appellant argues no there can be such crime “attempted assault” since an assault definition battery. as noted However, to commit a to maim” the crime of “assault with intent re before, cutting, stabbing wounding quires touching, i.e., *12 battery. Disregarding and is thus more akin to heading,3 clear from the elements of the section it is interesting heading It to note Uiat the section “Assault to the offense when it was with intent to maim” was added re- body at least of the statute that, in the recited offense cutting proscribes a a knife, with the statute as far as battery. there can be since Therefore, it describes battery, possible attempted for to be there it is also an intent maim.” with to an “assault spe-
Although contain a The Penal Code does not “attempted proscribing intent assault with cific section gen- clearly punishable under the to the crime is maim,” attempts punishes commit crime. eral section which P. L. 18 P.S. 872, Act of June 24, 1939, Section 1107, any person charged provides: the trial “If, §5107, felony appear to the it shall misdemeanor, jury upon not the defendant did evidence, complete charged, guilty but the offense was attempt he not crime, an to commit shall reason acquitted, jury may entitled to be but the thereof be guilty their that the defendant return, verdict, felony charged but is misdemeanor pro- to commit the an same.” section also punishment for of an vides that the conviction exactly to commit a crime shall be the same as if the conviction had been offense. As a appel- in the result his conviction instant case, years’ to from nine lant was sentenced months to three imprisonment, which is within the limits allowed Penal Code, 712 of The “Assault with Section intent maim.” impossible any prejudice appel-
It to find charged The indictment lant this case. him with “attempting intent to assault with maim”; evi- prove attempt; dence at trial was sufficient Code, 24, 1939, 872, Penal Act of June enacted the 1939 P. L. offense, present The substance of the from which the §712. lan- appeared guage taken, first in The Penal Code of where correctly entitled, “Cutting maiming offense was more 31, 1860, disfigure.” of March Act P. L. *13 if believed the appel- j ary they judge charged could they the officer to assault lant had and the second count; find the appellant guilty count. of the second of guilty jury returned pen- is the same as for penalty Since offense, appellant completed alty inadvertent which listed error by the prejudiced of- slip on the verdict second count maim.” “Assault fense, I of the lower court. would affirm judgment Pomeroy dissenting joins opin- Mr. Justice ion. Appellant.
Commonwealth v. Jackson,