delivered the opinion of the court,
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 *321family 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, does not constitute an attempt to commit the misdemeanor; yet a solicitation to commit a felony does constitute an attempt to commit the felony. This view does not appear to have been adopted in Pennsylvania. The case of Kelly v. Commonwealth, 1 Grant 484, was an indictment for murder charged to have been committed in an attempt to commit a rape. It was held that acts were necessary to constitute an attempt. That an attempt to commit a rape was an ineffectual offer by force with intent to have carnal knowledge. If such acts, with such intent, were not proved, the prisoner could not be convicted of the attempt; that it should be an actual, not a constructive attempt. An intent to commit fornication was insufficient.
In the present case it is contended that putting the poison into the pocket of the witness was an act sufficient to constitute the attempt, if Stabler expected and believed it would be used as he had requested. The uncontradicted evidence is, that it was so put' without the knowledge of the witness, and after his positive and unqualified refusal to use it. He swears he never used it or attempted to use it, or had any intention of so doing. To submit to the jury to find that Stabler expected and believed the witness would administer it, was not only without evidence but against the evidence. If, however, it was actually delivered with that intent, we do not think it constituted an attempt to murder under the 82d section of the Act of March 31st 1860. This section is substan *322tially a copy of third section of the Act of 1 Victoria, chapter 85. In an indictment under that act, in Regina v. Williams et al., 1 C. & K. 589, it was held, that the delivery of poison to an agent, with directions to him to cause it to be administered to another, was insufficient to establish an attempt to murder. So on an indictment under the same chapter for attempting to discharge loaded firearms at a person, it was held, in Regina v. Lewis, 9 C. & P. 523, that some act must be shown to prove the person did attempt to discharge the firearms, and merely presenting them was not sufficient. Upon an indictment for attempting to discharge a pistol loaded with powder and ball with intent to murder, a witness testified,
“ the prisoner took out a small pistol and said, ‘ I will settle you,’ or ‘I will do you,’ and either half or full cocked the pistol, and pointed the muzzle at my brother,” with his finger on the trigger; yet it was held the charge of felony could not be supported, as it was not proved that the prisoner drew the trigger: Reg. v. St. George, Idem 483 (38 E. C. L. R.). Parke, B., said, “ here a trigger was to be drawn, and it is not drawn. It seems to me thobject of this act was to furnish proximate attempts, that is those attempts which immediately lead to the discharge of loaded arms.” It is true, in People v. Bush, 4 Hill 133, a conviction was sustained for an attempt to commit a felony, where the ant proved was as remote from the crime intended to be perpetrated, as the act proved is in the present ease. That ruling, howeven. rests on a statute of New York, which contains language not in the Act of 1 Victoria, cited, nor in our own statute. It has the additional words, “ and in such attempt shall do any act toward the commission, of such offence.” In giving construction to a statute containing such language, a conclusion may well be reached, that would be forced and unjust in construing our statute which is so different.
The conduct of the plaintiff in error, as testified to by the witness, undoubtedly shows an offence for which an indictment will lie without any further act having been committed. He was rightly convicted, therefore, on the sixth count.
We, however, think, all that occurred at the interview with the witness, and the legal inference deducible therefrom, followed by no other act, are not sufficent to justify a conviction for an attempt £o commit the felony as charged. The act proved did not approximate sufficiently near to the commission of murder to establish an attempt to commit it within the meaning of the statute.
The seppnd and third assignments.are sustained; and on the first count
Judgment reversed.
Sterrett J, diggsnted.