Dissenting Opinion
Dissenting Opinion by
Appellant was convicted of attempted larceny
The offense of attempted larceny is a common law offense. Commonwealth ex rel. Swisher v. Ashe,
The Act of 1860, however, did not provide any penalties for common law crimes. The requirement of the Penal Code of 1939 that punishments for common law сrimes shall be “as heretofore” must of necessity refer back to the prior penal code, the Act of April 5, 1790, 2 Smith’s Laws 531, 13 Statutes At Large of Pennsylvania, pp. 511 et seq., as amended. Prior to the passage of that act, “non-capital” felonies and all misdemeanors were punishable by “burning in the hand, cutting off the ears, nailing the ear or ears to the pillоry, etc.” The Act of 1790 changed this, however, by providing that for any offense not capital, other than certain offenses specified in Sections III and IV of the Act not here relevant, the maximum penalty to be imposed is two years imprisonment.
This Act of 1790 was followed by the Act of April 4, 1807, 4 Smith’s Laws 393, 18 Statutes at Large of Pennsylvania 480, which in Section I thereof provided that the Act of 1790 was amended to the extent that “instead of two years imprisonment, to which the power
The leading interpretation of the scope of Section I of the Act of 1807 was in Hackett v. Commonwealth,
While no lucid discussion of this point has as yet bеen made, this Court obviously embraced the principle in Commonwealth ex rel. Munyan v. Smith,
Further, we have in other instances indicated that the seven-year provision of the Act of 1807 does not uniformly apply to attempts where the substantive crime is less than seven years. See Commonwealth ex rel. Swisher v. Ashe, supra, Commonwealth v. Orris,
With this background before us, it is necessary to turn to Commonwealth ex rel. Swisher v. Ashe, supra, which dealt with an appellant convicted and sentenced for the attempted theft of an automobile. In Swisher, the appellant, who had already served more than three years imprisonment on the charge, succeeded in securing an immediate discharge by bringing a petition for writ of habeas corpus. While the appellant in that proceeding raised the argument that under the Act of 1790 he could not have been sentenced to more than two years imprisonment for the attempt, our court avoided both the Act of 1790 and the Act of 1807. Instead, we applied the principle that punishment for an attempt can never be greater than punishment for the commission of the substantive crime. Specifically, we held that since the penalty for common law larceny under Section III of the Act of 1790 was three years and to the date of the opinion in Swisher such penalty had been preserved, it was improper to sentence an appellant convicted of attempt to more than three years.
Thus the real thrust of Swisher was thаt no man may be imprisoned longer for attempting a larceny than would have been the case had he completed the larceny.
Considering that our courts have clеarly limited the effect and scope of the amendatory language in Section I of the Act of 1807 so that its seven-year provision does not apply in a blanket literal sеnse, we are left with the problem of defining what the Act of 1860 meant by making offenses at common law punishable as “heretofore”. At the very least this must refer back to the Act of 1790, аs later clearly amended, because it was the Act of 1790 that intended to generally super-cede common law penalties for common law crimes.
Yet, it is impossible to confidently discern the reach of the Act of 1807 and to reconcile it with Swisher and with Munyan. The Act of 1939 incorporated the Act of 1860’s standard that common law offenses are punishable as heretofore. The Act of 1790 clearly set forth a two-year sentencing maximum for common law attempts. It is clearly improper, therefore, to say that when the penalty for the substantive offense is changed, as for example when the penalty for common law larceny of three years was abandoned by the Penal Code of 1939 and made into a five-year maximum sentence, that the penalty for attempted larceny should likewise rise from three years to five years, because the penalty for the attempt should be as “heretofore”. Likewise, it is not clear that a three-year maximum for attempted larceny is proper, as the only reason that could be advanced to support this position is that larceny itself was punishable at common law by a three-year sentence.
Given the perplexing nature of the problem, the obscure legislative intent and the alternative arguments that could be adduced, the disposition of this case must
Accordingly, I would hold that the maximum penalty for attempted larceny cannot exceed two years imprisonment. I would vacate the judgment of sentence and remand for resentencing.
Notes
While appellant was not indicted for attempted larceny but instead for larceny, his conviction on the attempt was appropriate as the Act of June 24, 1939, P. L. 872, §1107, 18 P.S. §5107, provides that when an individual is charged with a substantive offense and the proofs are only sufficient to conviet him of an attempt he may be convicted for the attempt and “be liable to be punished in the same manner as if he had been convicted upon an indictment for attemрting to commit the particular felony or misdemeanor charged in the indictment."
It should be clearly recognized that the Commonwealth is in error in relying on our language in Commonwealth ex rel. Gobert v. Myers,
Lead Opinion
Opinion
Judgment of sentence affirmed.