450 PA 98 - Commonwealth v. Dzvonick

¶1Opinion by

Mb. Justice Roberts,

¶2At 6:00 a.m., on April 15, 1969, Officer Uziel of the Borough of Glassport Police Department, droye up to the Borough Police Station. Appellant, Darrell Dzvonick, immediately came out of the station toward Officer Uziel’s car with a knife held at arm’s length. He lunged at the officer with the knife through the open car window, but did not “cut, stab, or wound” the officer. Appellant was immediately arrested and subsequently charged with both attempt with intent to kill1 and assault with intent to maim.2 He pleaded not guilty to both charges and was tried before a jury.

¶3On September 29, 1969, the jury returned verdicts of not guilty of attempt with intent to kill and guilty on the second charge of assault with intent to maim. Appellant filed no post-trial motions. However, after a change of counsel, and appeal to the Superior Court, he was permitted to file motions for a new trial and in arrest of judgment “nunc pro tunc”. The motion for a new trial was later withdrawn, and the motion in arrest of judgment was denied.

¶4 *101Appellant appealed the denial of his motion in arrest of judgment to the Superior Court which affirmed by a per curiam order. We granted allocatur.

¶5Appellant cites three principal errors as the basis for relief on this appeal. He asserts that the verdict of guilty of assault with intent to maim as returned by the jury and recorded by the court is unsupported by the evidence and therefore his motion in arrest of judgment should have been granted. The Commonwealth concedes that the jury’s verdict was not supported by the evidence,3 but nevertheless claims that the court molded the jury’s verdict to that of guilty of attempted assault with intent to maim. In response appellant asserts that the court did not mold the verdict to guilty of the attempt offense, nor could it have done so after-discharging the jury. Finally appellant contends, arguendo, that even if the verdict was so molded it could not stand because there is no such offense as “attempted assault with intent to maim.” In view of our disposition of the case we need not deal with the last challenge.

¶6The Commonwealth claims that after the jury returned a verdict of guilty of assault with intent to maim (the completed offense), the court molded the verdict to guilty of attempted assault with intent to maiin. However, the Commonwealth’s claim of such molding is nowhere supported in the record. The following excerpt from the record establishes that the only “molding” which occurred was the court’s insertion of the date, which the jury had inadvertently *102omitted. “Minute Clerk: Who will read the verdict? The Foreman: I will. The jury finds the defendant guilty on the second count. The Court: All right. You find him not guilty on the first count? Is that correct? (Jury indicates affirmative.) The Court: We will record the verdict. Minute Clerk : Members of the jury, Harken to your verdict as the Court hath recorded it between the Commonwealth and the defendant Darrell Dzvonick, wherein the defendant is charged of the first count, attempt with intent to kill, and the second count, assault with intent to maim, you say you find the defendant not guilty of the first count and guilty as to the second count. I might mention to the Court the jury left out the date. The Court: All right. Well, we’ll mold the verdict; but including today’s date, there’s no objection by counsel? Mr. Mansmann : No. The Court: We will make it September 29, 1969. (Jurors Excused)”

¶7The record discloses no other molding of the verdict whatsoever by the trial judge, either before or after the jury was excused. Moreover, once the jury has been discharged and has dispersed, the verdict can no longer be molded by the trial judge. Commonwealth v. Martin, 379 Pa. 587, 109 A. 2d 325 (1954); Commonwealth v. Johnson, 359 Pa. 287, 59 A. 2d 128 (1948); cf. Commonwealth v. Corbin, 215 Pa. Superior Ct. 63, 257 A. 2d 356 (1969).4

¶8 *103Tlie guilty verdict returned by the jury and recorded by the court was not, and could not in the circumstances be molded.5 Thus, appellant stands convicted of the completed offense—assault with intent to maim. Since both the Commonwealth and appellant readily concede that the “assault” verdict is not supported by the evidence, it necessarily follows that the verdict may not stand.

¶9Accordingly, the order of the Superior Court is reversed and the motion in arrest of judgment is granted.

Mr. Justice Eagen concurs in the result.

¶10 Act of June 24, 1939, P. L. 872, §711, 18 P.S. §4711.

¶11 Act of June 24, 1939, P. L. 872, §712, 18 P.S. §4712.

¶12 “Whoever . . . stabs, cuts or wounds any person, with intent to maim, disfigure or disable such person, is guilty of felony. . . .” Act of .Tune 2-1, 1939, P. L. 872, §712, 18 P.S. §4712. At trial Officer Uziel testified that although he might have been touched with the knife he definitely was not cut, wounded or stabbed in any way. Thus there was no evidence to support the charge of the completed offense.

¶13 The situations in which molding is permissible are severely circumscribed. They fall into two principal categories—molding prior to recording the verdict and discharge of the jury, and molding after such recording and discharge.

¶14Prior to recording the verdict there are two accepted methods of verdict molding. See Laub, Pennsylvania Trial Guide, §244, at 416 (1959). If the jury’s error is defective in form only, as here where the date was omitted, then the judge may correct it in open court with the acquiescence of the jury. Commonvwealth v. Minoff, 363 Pa. 287, 69 A. 2d 145 (1949) ; see also Newsom v. Smyth, 261 E. 2d 452 (4th Cir. 1958), cert. denied, 359 U.S. 969, 79 S. Ct. 883*103(1959). However, if the error is substantive, the court must send the jury back with additional instructions for further deliberation. Commonwealth v. Komatowski, 347 Pa. 445, 32 A. 2d 905 (1943), citing Commonwealth v. Huston, 46 Pa. Superior Ct. 172 (1911) ; Commonwealth v. Micuso, 273 Pa. 474, 117 Atl. 211 (1922) ; see also United States v. Henson, 365 F. 2d 282 (6th Cir.), cert. denied, 385 U.S. 974, 87 S. Ct. 513 (1966) ; Helms v. United States, 310 F. 2d 236 (5th Cir. 1962) ; cf. Glenn v. United States, 420 P. 2d 1323 (D.C. Cir. 1969).

¶15After the verdict has been recorded and the jury discharged, only in “extremely exceptional cases” may the verdict be molded and even then “only unless to make the corrected verdict conform to the obvious intention of the jury, i.e., to conform to a verdict actually rendered, but informally or improperly stated in writing.” Laub, supra, at 415. After the jury has been discharged the verdict as recorded may not be molded by the trial court. See Commonwealth v. Martin, 379 Pa. 587, 109 A. 2d 325 (1954).

¶16 The Commonwealth’s theory that the court molded the verdict is an assumption that is directly contradicted by the record. Even had molding occurred it would not have constituted a permissible molding of the jury verdict; it would instead be a substitution of an entirely new verdict never found by the jury for the verdict it did in fact return.

¶17Concurring Opinion by

Mr. Justice Nix:

¶18I concur with the result reached by the majority but not with the reasons they offer to support their conclu*104sion. As pointed out by the Chief Justice in his dissent, the indictment, the evidence, and the charge of the court unequivocally establish that the appellant was tried for the alleged crime of attempted assault with the intent to maim. The fact that the verdict slip was incorrect and listed the charge as an “assault with the intent to maim” is obviously immaterial and clearly not a justification for reversing an otherwise proper verdict.

¶19The true issue presented in this appeal is whether attempted assault with the intent to maim is a crime cognizable under the laws of this Commonwealth.

¶20The crime of assault with the intent to maim was not a distinct common law crime1 but is of statutory origin. The Act of June 24,1939, P. L. 872, §712, 18 P.S. §4712. Section 712 provides: “Whoever unlawfully and maliciously, shoots at any person, or, by drawing a trigger or by any other manner, attempts to discharge any kind of loaded arms at any person, or stabs, cuts or wounds any person, with intent to maim, disfigure or disable such person, is guilty of felony, and on conviction, shall be sentenced to pay a fine not exceeding two thousand dollars ($2,000), or undergo imprisonment, by separate or solitary confinement at labor, not exceeding five (5) years, or both.”

¶21The legislature having already provided punishment for simple assault,2 assault and battery,3 and aggravated assault and battery4 was concerned in this section with punishing an assault with a firearm or a battery *105by cutting, stabbing or wounding where the assault or battery is accompanied by an intent to maim. The language of this section clearly discloses a legislative intention of defining an attempt to commit mayhem. The discharging of a weapon at another person as defined in this section is only distinguished from an assault as defined in Section 708 or the crime of pointing a deadly weapon5 by the intent to maim which must accompany the act. So too a cutting, stabbing or wounding of a person is only distinguished from an aggravated assault and battery as defined by Section 709 by the intent to maim. The Act of 1860, March 31, P. L. 382, §83, contained a substantially similar provision to the present Section 712; it is therefore appropriate for one to look to the common law for a definition of the word “maim” as used in this section. Black^s Law Dictionaey 1104-05 (Rev’d. 4th ed. 1968) defines “maim” as follows: “At common law, to deprive a person of a member or part of the body, the loss of which renders him less capable of fighting; or of defending himself; to commit mayhem.” Thus, if the intention required by, Section 712 is effectively accomplished the completed offense of mayhem has been made out.6

¶22Further support for the conclusion that the crime described by Section 712 is an attempt to commit mayhem is furnished by the design of the statute itself. Section 712 and the two immediately succeeding sections (713 and 714) punish specific acts where there is an intent to maim followed by Section 715 which pro*106vides for the statutory completed offense of mayhem.7 The basic format employed in Section 712 covering both assaults and batteries is seen when we read Sections 713 and 714 together. Section 714 provides for the punishment of the assault and Section 713 provides for the battery where these acts involve the use of explosives or corrosive substances and are accompanied by an intent to maim or where from the very nature of the act the possibility of maiming is imminent. The clear statutory scheme in dealing with this area compels the conclusion that the legislature was attempting in Sections 712, 713 and 714 to define attempts to commit the completed offense of mayhem.

¶23Having concluded that the crime announced in Section 712 is itself an attempt I am obliged to find that there cannot be a legally cognizable crime of attempting to violate Section 712. It is basic law that there cannot be an attempt to commit an attempt. By definition 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 *107long as the acts are confined to preparation only, and can be abandoned before any transgression of the law or of others’ rights, they are within the sphere of intent and do not amount to attempts.” (Citations omitted.) Commonwealth v. Ellis, 349 Pa. 402, 404, 37 A. 2d 504, 505-06 (1944). Thus, an attempt being the first step beyond preparation, an attempt to commit an attempt must necessarily fall within the realm of preparation for which our law does not attach criminal responsibility. I am not impressed with the dissent’s distinction between an assault and a battery. The crime set forth in Section 712 provides for punishment of both an assault (discharging a weapon at) and also a battery (cutting, stabbing or wounding) where either is accompanied by the requisite intent. The basis for the rejection of the concept of an attempt to commit Section 712 does not turn on whether the overt act is the assault or the battery but rather that the offense as defined is in fact an attempt to commit mayhem.

¶24Finally, I must also reject the argument that although the acts charged fell short of the conduct proscribed by Section 712 it nevertheless amounted to an attempt to commit the completed offense of mayhem. Here the appellant was accused of attempting to stab a police officer with a knife through an open car window with the intent to maim. While it is arguable that the act of lunging with the knife may be sufficient to remove these acts from the realm of intent and constitute common law attempt to commit mayhem it is clear that the legislature has preempted the area and ousted the court of common law jurisdiction. In an analogous situation a majority of this court stated in Commonwealth v. Clopton, 447 Pa. 1, 8, 289 A. 2d 455 (1972) : “Turning to our consideration of legislative intent, 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 *108easiest 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.”

¶25I, therefore, would reverse the Superior Court and grant the motion in arrest of judgment on the theory that the instant charge is not a crime punishable under the laws of this Commonwealth.

¶26 “The so-called ‘aggravated assaults’ were not recognized as distinct offenses at common law. Any criminal assault was a misdemeanor and circumstances of aggravation, if present, could be taken into consideration in fixing the penalty.” Perkins, Criminal Law 500 (1957).

¶27 Act of June 24, 1939, P. L. 872, §708, 18 P.S. §4708.

¶28Id.

¶29 Act of June 24, 1939, P. L. 872, §709, 18 P.S. §4709.

¶30 “Whoever playfully or wautonly points or discharges a gun, pistol or other firearm at any other person. . . .” Act of June 24, 1939, P. L. 872, §716, 18 P.S. §4716.

¶31 Bishop quoting Hawkins (Hawk. P.C. Curw. ed. p. 107, §1) defines “mayhem at the common law as ‘a hurt of any part of a man’s body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary.’ ” 2 Bishop On Oetm. Haw §1001 (9th ed. 1923).

¶32 Section 713 provides in part: “Whoever unlawfully, wilfully and maliciously, by the explosion of gunpowder, or other explosive substance, burns, maims, disfigures, disables, or does grievous bodily harm to any person, is guilty of felony. . . .” 18 P.S. §4713.

¶33Section 714 provides in part: “Whoever unlawfully and maliciously causes any gunpowder, or other explosive substance, to explode, or sends or delivers to, or causes to be taken and received by any person, any explosive substance, or any other dangerous or noxious thing, or casts or throws at or upon, or otherwise applies to any person, any corrosive fluid, or other destructive or explosive substance, with intent to burn, maim, disfigure or disable any person, or to do some grievous bodily harm to such person, is guilty of felony. . . .” 18 P.S. §4714.

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