Opinion by
This appeal arises from a conviction of the appellant by the trial court sitting without a jury, of “willfully and wantonly pointing [or discharging] a firearm.” Act of June 21, 1939, P. L. 872, §716, 18 P.S. §1716. The appellant argues that the trial court erred in finding him guilty under the indictment since it charged him with “attempt with intent to kill,” and not with “willfully and wantonly pointing [or discharging] a pistol.” Thus the appellant argues that the crime for which he was convicted is not a “lesser included offense.” Specifically, the appellant argues, an attempt
The form indictment involved in the instant appeal reads as follows: “The Philadelphia County Grand Jury, by this indictment, presents: That on or about October 4, 1972, in Philadelphia County, D. L. Stots unlawfully aud feloniously
did attempt to shoot, or, by drawing a trigger or in any other manner, attempt to discharge a hind of loaded arm
at one Floyd F. Mason, Jr. with intent to kill and mnrder the said Floyd F. Mason, Jr., all of which is against the peace and dignity of the Commonwealth of Pennsylvania.” All the other allegations on the form, relevant to committing the crime of attempt with intent to kill by methods other than the use of a firearm, had been deleted. Thus, by the terms of the indictment, fche Commonwealth was barred from showing the use of any other instrumentality to commit the crime, since the proof offered at trial must conform to the allegations made in the indictment.
1
2
Thus, the appellant was clearly on notice that part of the Commonwealth’s case would require showing that the appellant pointed a firearm at the complainant on the night in question.
3
The appellant
In
Commonwealth v.
Nace,
222
Pa. Superior Ct. 329 (1972), this court stated, through Judge Packed, that the operation of a motor vehicle without the knowledge or consent of the owner (joyriding) was a “lesser included offense” of larceny of a motor vehicle even though, in the abstract, there could be situations where the allegations made in the indictment, while sufficient for conviction of that greater larceny offense, would not be sufficient to allow conviction of the lesser “joyriding” offense.
Id.
at 332, n. 5. In
Commonwealth v.
Varner,
The instant case is even stronger than
Varner
in that parts of the indictment in
Varner
were subject to being stricken as surplusage. In the instant case, proof that a firearm was used was as essential to showing
Judgment of sentence is affirmed.
Notes
See, e.g.,
Commonwealth ex rel. Moszczynski v. Ashe,
Berger v. United States,
Whether conviction for a less serious or less culpable offense may lie on an indictment for another more serious or more culpable crime is principally a question of whether the indcitment will fairly put the defendant on notice of the charges against him, so that he may prepare an adequate defense. See
United States v. Hess,
In Commonwealth v. Nace, supra, this court remanded for a hearing on whether the defendant’s counsel was inadequate when he defended the automobile larceny charge by showing that the defendant never intended to permanently deprive the owner of his possession of the car. The court reasoned that defense counsel, not knowing that “joyriding” was a lesser included offense of larceny of an automobile, might have passed over some complete defense feeling that it would be easier to show the less culpable intent involved in “joyriding.” That argument has not been raised here, nor would the evidence produced at trial indicate the defendant had any complete defense. Most of counsel’s efforts toward complete acquittal went into his attempts at having the pistol suppressed as being the fruit of an illegal search. Although the appellant has also raised this issue, it does not merit discussion herein.
See, e.g.,
Commonwealth v. Penn,