Mr. Justice Douglas

delivered the opinion of the Court.

Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel’s farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.1 151 F. 2d *642499. The case is here on a petition for a writ of certiorari, which we granted because one of the questions presented involved a conflict between the decision below and United States v. Sall, 116 F. 2d 745, decided by the Circuit Court of Appeals for the Third Circuit.

A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two year penalty provided by the conspiracy statute (Criminal Code § 37, 18 U. S. C. § 88) could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States, 317 U. S. 49.

In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one *643conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.

Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U. S. 354, 355-356; Gebardi v. United States, 287 U. S. 112, 121-122. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another’s crime. Gebardi v. United States, supra. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy,2 has little vitality in this country.3 It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U. S. 590, 594-595. A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U. S. 131, 144. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. *644McClaughry, 183 U. S. 365, 395. It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U. S. 338, 342. Cf. Freeman v. United States, 146 F. 2d 978. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 253. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U. S. 78, 88:

“For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.”

And see Sneed v. United States, 298 F. 911, 912-913; Banghart v. United States, 148 F. 2d 521.

Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, p. 913, “If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it.” The agreement to do an unlawful act is even then distinct from the doing of the act.4

*645It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.

There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained,5 although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.6

*646Daniel relies on United States v. Sall, supra. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary.

We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U. S. 347, 369. As stated in that case, “Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence.” Id., p.369. And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that “an overt act of one partner may be the act of all without *647any new agreement specifically directed to that act.” United States v. Kissel, 218 U. S. 601, 608. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U. S. 632, 657-658. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Cochran v. United States, 41 F. 2d 193, 199-200. Yet all members are responsible, though only one did the mailing. Cochran v. United States, supra; Mackett v. United States, 90 F. 2d 462, 464; Baker v. United States, 115 F. 2d 533, 540; Blue v. United States, 138 F. 2d 351, 359. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 62 F. 2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U. S. C. § 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.

A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the *648scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case.

Affirmed.

Mr. Justice Jackson took no part in the consideration or decision of this case.

Mr. Justice Rutledge,

dissenting in part.

The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.

Daniel and Walter, who were brothers living near each other, were charged in several counts with substantive offenses, and then a conspiracy count was added naming those offenses as overt acts. The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter’s crimes were done.

There was evidence, however, to show that over several years Daniel and Walter had confederated to commit similar crimes concerned with unlawful possession, transportation, and dealing in whiskey, in fraud of the federal revenues. On this evidence both were convicted of conspiracy. Walter also was convicted on the substantive counts on the proof of his committing the crimes charged. Then, on that evidence without more than the proof of Daniel’s criminal agreement with Walter and the latter’s overt acts, which were also the substantive offenses charged, the court told the jury they could find Daniel guilty of those substantive offenses. They did so.

*649I think this ruling violates both the letter and the spirit of what Congress did when it separately defined the three classes of crime, namely, (1) completed substantive offenses;1 (2) aiding, abetting or counseling another to commit them;2 and (3) conspiracy to commit them.3 Not only does this ignore the distinctions Congress has prescribed shall be observed. It either convicts one man for another’s crime or punishes the man convicted twice for the same offense.

The three types of offense are not identical. Bollenbach v. United States, 326 U. S. 607, 611; United States v. Sall, 116 F. 2d 745. Nor are their differences merely verbal. Ibid. The gist of conspiracy is the agreement; that of aiding, abetting or counseling is in consciously advising or assisting another to commit particular offenses, and thus becoming a party to them; that of substantive crime, going a step beyond mere aiding, abetting, counseling to completion of the offense.

These general differences are well understood. But when conspiracy has ripened into completed crime, or has advanced to the stage of aiding and abetting, it becomes easy to disregard their differences and loosely to treat one as identical with the other, that is, for every purpose except the most vital one of imposing sentence. And *650thus the substance, if not the technical effect, of double jeopardy or multiple punishment may be accomplished. Thus also may one be convicted of an offense not charged or proved against him, on evidence showing he committed another.

The old doctrine of merger of conspiracy in the substantive crime has not obtained here. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared. Cf. Kotteakos v. United States, post, p. 750. There is some evidence that they may be increasing. The looseness with which the charge may be proved, the almost unlimited scope of vicarious responsibility for others’ acts which follows once agreement is shown, the psychological advantages of such trials for securing convictions by attributing to one proof against another, these and other inducements require that the broad limits of discretion allowed to prosecuting officers in relation to such charges and trials be not expanded into new, wider and more dubious areas of choice. If the matter is not generally of constitutional proportions, it is one for the exercise of this Court’s supervisory power over the modes of conducting federal criminal prosecutions within the rule of McNabb v. United States, 318 U. S. 332.

I think that power should be exercised in this case with respect to Daniel’s conviction. If it does not violate the letter of constitutional right, it fractures the spirit. United States v. Sall, supra. I think the ruling in that case was right, and for the reasons stated.4 It should be *651followed here. Daniel has been held guilty of the substantive crimes committed only by Walter on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that he counseled, advised or had knowledge of those particular acts or offenses. There was, therefore, none that he aided, abetted or took part in them. There was only evidence sufficient to show that he had agreed with Walter at some past time to engage in such transactions generally. As to Daniel this was only evidence of conspiracy, not of substantive crime.

The Court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a co-partner in the course of the firm's business.

Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field. See Sen. Rep. No. 163, 72d Cong., 1st Sess., 20. Guilt there with us remains personal, not vicarious, for the more serious offenses. It should be kept so. The effect of Daniel's conviction in this case, to *652repeat, is either to attribute to him Walter’s guilt or to punish him twice for the same offense, namely, agreeing with Walter to engage in crime. Without the agreement Daniel was guilty of no crime on this record. With it and no more, so far as his own conduct is concerned, he was guilty of two.

In another aspect of the case, this effect is thrown into even clearer light. The indictment here was filed after a prior one for conspiracy alone had been dismissed. This in turn came after petitioners had been tried, convicted and had been successful in securing reversal on appeal for errors in the charge. Pinkerton v. United States, 145 F. 2d 252. Following this reversal they were reindicted and tried in the present case. The Government now says, as to the plea of double jeopardy on this account (which the trial court overruled on demurrer), that the two indictments were for different conspiracies since the first one charged a different period of time as covered by the conspiracy; charged 16 as compared with 19 overt acts in the second; and an additional object was added in the latter, that is, intent to violate another section of the revenue act. In other words, there were two different conspiracies by virtue of these minute differences in the detail of the allegations. Hence, there was no double jeopardy by the second indictment.

But later, in support of the conviction here, relative to the bearing of the various statutes of limitations upon proof of the overt acts, charged also as substantive offenses, the Government points out that the earlier indictment was framed on the assumption that a three-year statute of limitations applied to the conspiracy as first charged; and the convictions were reversed for failure of the trial court to instruct the jury on that basis. Then the District Attorney discovered the decision in Braverman v. United States, 317 U. S. 49, 54-55, and decided to revamp the *653indictment to include details making the six-year period applicable. He did so, and added the substantive counts because, so it is said, in the view that a six-year period applied he felt there were enough substantive offenses within that time which he could successfully prove to justify including them.

It would seem, from this history, that to sustain this conviction as against the plea of former jeopardy by virtue of the earlier indictment and what followed, the Government stands, and must stand, upon the idea that two separate and distinct conspiracies were charged, one by the first and one by the later indictment. See United States v. Oppenheimer, 242 U. S. 85, 87-88. But to sustain Daniel’s conviction for the substantive offenses, via the conspiracy route, there was only a single continuing conspiracy extending over the longer period, in the course of which Walter committed crimes, which were also overt acts, some of them running back of the period charged in the former indictment, others being the same but later acts which it had charged as overt acts against both.

For these now Daniel is held responsible, not merely as a conspirator, as the prior indictment charged, but as both a conspirator and a substantive offender.

What this lacks by way of being put twice in jeopardy for the same offense, I am unable to understand. For not only has Daniel been convicted for conspiracy for the same overt acts, and illegal ends, as the first indictment charged. He has had those acts converted into substantive offenses. I do not think the prosecutor’s technical, and it would seem insubstantial, variations in the details of the indictment should be permitted to achieve so much.5

*654This, of course, should not relieve Walter of the conviction for the substantive offenses. . But his sentence for conspiracy should be annulled. So also should Daniel’s sentence on all counts.

Mr. Justice Frankfurter, reserving judgment on the question of double jeopardy, agrees in substance with the views expressed in this dissent.

JUSTICE LINN

delivered the opinion of the court:

Following a jury trial, defendant, Stanley Gentry, was convicted of attempted murder (El. Rev. Stat. 1983, ch. 38, pars. 8 — 4(a), 9 — 1(a)) and aggravated battery (El. Rev. Stat. 1983, ch. 38, par. 12 — 4). At the sentencing hearing, the trial court merged the aggravated battery conviction with the attempted murder conviction and on the charge of attempted murder sentenced Gentry to the Illinois Department of Corrections for a term of 45 years’ imprisonment.

On appeal, Gentry asserts that his conviction should be reversed because: (1) the trial court’s instruction regarding the intent necessáry for attempted murder was prejudicially erroneous; (2) the State’s use of certain hearsay statements denied Gentry a fair trial; and (3) the prosecutor committed reversible error by making several improper and prejudicial remarks during closing argument.

Background

The record indicates that on December 13, 1983, Gentry and Ruby Hill, Gentry’s girlfriend, were in the apartment they shared at 1756 North Taiman in Chicago, Illinois. At approximately 9 p.m. the couple began to argue. During the argument, Gentry spilled gasoline on Hill, and the gasoline on Hill’s body ignited. Gentry was able to smother the flames with a coat, but only after Hill had been severely burned. Gentry and Hill were the only eyewitnesses to the incident.

Police and paramedics were called to the scene. James Fahey was the first Chicago police officer to arrive. Fahey testified that when he entered Gentry and Hill’s apartment, he found Hill’s upper body (including her head, face, and arms) to be badly burned. He further testified that Gentry was the only person in the apartment other than Hill. Fahey also stated that he found no matches on the floor of the apartment.

The paramedics who arrived at the scene testified that Hill had suffered third degree bums over 70% of her body. They further testified that after some initial treatment, Hill was transported by ambulance to Cook County Hospital and that Gentry accompanied Hill in the ambulance.

. Wayne Milla, a detective for the Chicago police department, also testified. Milla stated that he arrived on the scene shortly after Fa-hey. Milla also stated that a gas stove was the only possible source of *901ignition in the apartment’s kitchen. Milla averred that he originally classified the fire as “accidental” but later changed his mind when he discovered that Hill’s clothing had been doused with gasoline.

The victim, Ruby Hill, also testified at trial. Hill stated that she and Gentry had been drinking all afternoon and that both of them were “pretty high.” She further testified that Gentry had poured gasoline on her and that the gasoline ignited only after she had gone near the stove in the kitchen. Hill also related how Gentry tried to snuff the fire out by placing a coat over the flames.

Hill also testified as to her relationship with Gentry. She stated that she had lived with Gentry for three years prior to the accident, that she wanted to marry Gentry, and that she still loved Gentry notwithstanding the fire incident. Hill claimed that the entire episode was an accident and that she intended to again live with Gentry after the case was over.

In addition, over the objection of Gentry’s counsel, the prosecution proffered certain impeachment evidence. The claimed purpose of this evidence was to impeach Hill as to her assertion that the fire incident was an accident. The prosecution first established the foundation for the impeachment by asking Hill if she had previously claimed that Gentry had threatened her with matches after he had poured gasoline on her. Hill denied it. The prosecution also asked her if she had previously claimed that she was terrified of Gentry. Hill again denied making such a statement. Hill also denied ever stating that she was afraid of Gentry and denied that Gentry had ever tried to choke her while she was taking a bath in the apartment’s bathtub.

After Hill denied making positive answers to the aforementioned questions posed by the prosecution, the prosecution set out to “prove-up” the impeachment. First, the prosecution called Jeffrey Zitzka, a Chicago police officer who interviewed Hill while she was in the hospital after the incident. Zitzka testified that Hill had nodded “no” when asked if the incident was an accident and had nodded “yes” as to whether she wanted to press charges.

Diane Meyer, a law clerk for the State’s Attorney’s office, then testified. Meyer stated that she had heard Hill tell prosecutors that Gentry had lit matches after pouring gasoline on her, that Hill had claimed that' the incident was not an accident, and that Hill had also said that she was afraid of Gentry.

Hill’s brother, Bill Starnes, testified that Hill had previously told him that Gentry had once tried to choke Hill while she was in the bathtub. Hill’s mother also testified. She stated that some time before the incident, Hill had written a letter to her in which Hill *902claimed to be “scared to death” of Gentry and that Gentry had once attempted to choke her while she was in the apartment’s bathtub.

During the prosecution’s closing argument, the record reveals that the prosecutors relied heavily on the impeachment testimony and invited the jury to consider the evidence for its substantive value as well as for what it revealed about Hill’s credibility

At the close of the case, the jury found Gentry guilty of attempted murder and aggravated battery. The lesser aggravated battery conviction was merged into the greater attempted murder conviction at sentencing, where Gentry was sentenced to the Illinois Department of Corrections for a term of 45 years. From his conviction for attempted murder and his sentence, Gentry now appeals.

Gentry contends that the jury was improperly instructed on the required mental state for attempted murder where the instructions given would permit a conviction without a finding that Gentry possessed the specific intent to kill. The State, on the other hand, contends that the instructions as given show Gentry’s assertion to be illogical. Alternatively, the State maintains that any error in instructing the jury was harmless and that defendant has waived review of this issue by failing to object at trial.

The record evinces the fact that Gentry did indeed fail to object at trial to the instructions in question. However, the specific intent to kill is an essential element of the crime of attempted murder. (People v. Bryant (1984), 123 Ill. App. 3d 266, 462 N.E.2d 780.) Accordingly, the alleged error affects Gentry’s substantial rights, and we will review this issue under the plain error doctrine. 87 Ill. 2d R 615(a); of. People v. Sanders (1984), 129 Ill. App. 3d 552, 472 N.E.2d 1156 (error in attempted murder instruction held to be plain error; attempted murder conviction reversed on appeal).

At the . close of the presentation of evidence in this case, the following instructions were given. First, the trial court defined “attempt” as it relates to the underlying felony of murder:

“A person commits the offense of murder when he, with intent to commit the offense of murder does any act which constitutes a substantial step toward the commission of the offense of murder. The offense attempted need not have been completed.” (Emphasis added.)

Second, after giving this definition, the trial court set forth the necessary elements of attempted murder, to wit, an act and intent:

“To sustain the charge of attempt, the State must prove the following propositions:

First: That the defendant performed an act which consti*903tuted a substantial step towards the commission of the offense of murder; and

Second: That the defendant did so with intent to commit the crime of murder.” (Emphasis added.)

Finally, the trial court defined the crime of murder, including all four culpable mental states:

“A person commits the crime of murder where he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual.” (Emphasis added.)

Gentry contends that the inclusion of all the alternative states of mind in the definitional murder instruction was erroneous because the crime of attempted murder requires a showing of specific intent to kill. Gentry, posits that inclusion of all four alternative states of mind permitted the jury to convict him of attempted murder upon a finding that he intended to harm Hill, or acted with the knowledge that his conduct created a strong probability of death or great bodily harm to Hill, even if the jury believed that Gentry did not act with specific intent to kill. We agree with Gentry’s position that the jury was misinstructed in this case.

Our supreme court has repeatedly held that a finding of specific intent to kill is a necessary element of the crime of attempted murder. (People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) Indeed, a trial court instructing a jury on the crime of attempted murder must make it clear that specific intent to kill is the pivotal element of that offense, and that intent to do bodily harm, or knowledge that the consequences of defendant’s act may result in death or great bodily harm, is not enough. (People v. Jones (1979), 81 Ill. 2d 1, 8-9, 405 N.E.2d 343, 346. Accord, People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 1270; People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404; People v. Coleman (1985), 131 Ill. App. 3d 76, 475 N.E.2d 565.) Recently, in People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154, this court found an identical instruction to be erroneous based on the legal principle cited above. Accordingly, the instructions given in this case were erroneous, since it is clear that the jury was permitted to convict Gentry without specifically finding that Gentry intended to kill Hill. New errors are more highly prejudicial than the trial court’s failure to give the proper instruction on the intent element of a *904crime. People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.

The State attempts to minimize the significance of this error by arguing that the instructions as given actually did require the jury to find specific intent to kill. The State labels as illogical those cases which distinguish between the specific intent to kill and the three other alternative states of mind also found in the definitional murder instruction.

The State would read the attempted murder instruction as requiring a showing of any of the alternative mental states sufficient for a conviction of murder. In other words, the State makes no distinction between the mental state required to prove murder and the mental state required to prove attempted murder. We find the State’s analysis and conclusion to be erroneous and lacking in legal substance since it fails to contain the judicial reasoning which recognizes the distinction between the intent elements of murder and attempted murder.

Specifically, we cite the Kraft case, where defendant’s attempted murder conviction was reversed where the jury instructions would have permitted a conviction without a finding of specific intent to kill. (People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154.) In reversing the defendant’s attempted murder conviction in that case, the Kraft court analyzed the distinction between the culpable mental states required for murder and attempted murder, noting as follows:

“Our criminal code contains separate statutory definitions for the four culpable mental states of intent, knowledge, recklessness, and negligence, with knowledge encompassing a distinct and less purposeful state of mind than intent. *** [0]ur State legislature manifested a desire to treat intent and knowledge as distinct mental states when imposing criminal liability for conduct. *** Knowledge is not intent as defined by our statutes, and the jury instructions should reflect this distinction. Accordingly, we hold that in a prosecution for attempted murder, where alternative culpable mental states will satisfy the target crime of murder, but only one is compatible with the mental state imposed by our attempt statute, the incompatible elements must be omitted from the jury instructions.” 133 Ill. App. 3d 294, 302, 478 N.E.2d 1154, 1160.

Consequently, it is sufficient only for us to say that we recognize the distinction between the alternative states of mind delineated in the definitional murder instruction, as well as the fact that only the specific intent to kill satisfies the intent element of the crime of at*905tempted murder. Accordingly, the State’s assertion that the instructions as given actually required the jury to find that Gentry had a specific intent to kill Hill is doomed.

Alternatively, the State argues that this error is harmless. We note that there are apparently two lines of cases on this point. In the first, our supreme court has reversed convictions for attempted murder without evaluating the evidence to determine if the error is harmless where the jury has not been correctly instructed on the issue of intent. (See People v. Trinkle (1977), 68 Ill. 2d 198, 203-04, 369 N.E.2d 888, 891; accord, People v. Viser (1975), 62 Ill. 2d 568, 581-83, 343 N.E.2d 903, 909-11.) These cases take the position that when a jury is misinstructed on a fundamental issue (like defendant’s intent in this case) the jury lacks a tool necessary for the performance of its function as trier of fact. Cf. People v. Stromblad (1978), 74 Ill. 2d 35, 41, 383 N.E.2d 969, 972.

In the second line of cases regarding misinstruction of the jury, our supreme court recognized that errors in giving or refusing to give instructions will not always justify reversal when evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably find defendant not guilty. (See People v. Truelock (1966), 35 Ill. 2d 189, 192, 220 N.E.2d 187, 190 (evidence of defendant’s knowledge of the presence of narcotics was clear and convincing); People v. Ward (1965), 32 Ill. 2d 253, 256, 204 N.E.2d 741, 743.) The factual distinction between these two rules, however, is based on the issue of defendant’s intent to kill. In the first line of cases, the question of defendant’s intent is in issue, which has been held to be sufficient to require reversal without further consideration of the evidence. (See, e.g., People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888; People v. Viser (1975), 62 Ill. 2d 568, 343 N.E.2d 903.) In the second line of cases, on the other hand, the fact that defendant formed the requisite intent to kill is blatantly evident from the facts, such that the intent element is not at issue. People v. Jones (1979), 81 Ill. 2d 1, 9-10, 405 N.E.2d 343, 346-47 (where the only question was whether the defendant was the perpetrator or one of the perpetrators of the crime, and where the trial court gave an accurate directive attempted murder instruction, followed by an inappropriately complete definitional murder instruction).

In the instant case, it is clear that the essential task before the jury was the determination of whether Gentry sufficiently formed the specific intent to kill, in order to satisfy the elements of attempted murder. This is evidenced by the State’s efforts to prove that Gentry knew that splashing gasoline on Hill would kill her, as *906well as by the State’s attempts to impeach Hill’s testimony that the incident was accidental. As such, we are faced with a situation where proving that Gentry formed the intent to kill was a necessary predicate to a finding of his guilt.

Given the circumstances delineated above, and given the misinstruction on the crime of attempted murder, we must necessarily conclude that Gentry was prejudiced by the inclusion of the alternative states of mind in the definitional murder instruction. We find this to be a fundamental error and not merely a technical defect cured by the evidence in this case. Indeed, the error which occurred here was in a definition essential for the jury to make a legally permissible judgment as to Gentry’s guilt or innocence as to the crime of attempted murder. (Cf. People v. Stromblad (1978), 74 Ill. 2d 35, 41, 383 N.E.2d 969, 972.) Justice would best be served by our application of the line of cases which would entitle Gentry to a new trial before a properly instructed jury, precluding our further consideration of the evidence in this case. We note that even if we were to apply the standard used in cases like Ward and its progeny (clear and convincing proof of guilt), we would not find the error harmless, as other evidentiary problems surrounding the impeachment of Hill foreclose a clear and convincing showing of Gentry’s guilt. This is because proof of Gentry’s guilt is inextricably tied to proving the requisite mental state for the crime of attempted murder, which was clearly misstated by the trial court when it gave an erroneous definitional murder instruction. Thus, because we find this to be a fundamental error, it is not necessary for us to continue any further.

In conclusion, based upon the discussion of law and fact stated above, we reverse defendant’s conviction and sentence and remand this cause for a new trial in front of a properly instructed jury.

Reversed and remanded.

McMORROW, P.J., and JOHNSON, J., concur.

Holmes, C. J.

This is an indictment for an attempt to burn a building and certain goods therein, with intent to injure the insurers of the same. Pub. Sts. c. 210, § 8. The substantive *271offence alleged to have been attempted is punished by Pub. Sts. c. 203, § 7. The defence is that the overt acts alleged and proved do not amount to an offence. It was raised by a motion to quash and also by a request to the judge to direct a verdict for the defendant. We will consider the case in the first place upon the evidence, apart from any question of pleading, and afterwards will take it up in connection with the indictment as actually drawn.

The evidence was that the defendant had constructed and arranged combustibles in the building in such a way that they were ready to be lighted, and if lighted would have set fire to the building and its contents. To be exact, the plan would have required a candle which was standing on a shelf six feet away to be placed on a piece of wood in a pan of turpentine and lighted. The defendant offered to pay a young man in his employment if he would go to the building, seemingly some miles from the place of the dialogue, and carry out the plan. This was refused. Later the defendant and the young man drove toward the building, but when within a quarter of a mile the defendant said that he had changed his mind and drove away. This is as near as he ever came to accomplishing what he had in contemplation.

The question on the evidence, more precisely stated, is whether the defendant’s acts come near enough to the accomplishment of the substantive offence to be punishable. The statute does not punish every act done toward the commission of a crime, but only such acts done in an attempt to commit it. The most common types of an attempt are either an act which is intended to bring about the substantive crime and which sets in motion natural forces that would bring it about in the expected course of events but for an unforeseen interruption, as in this case if the candle had been set in its place and lighted but had been put out by the police, or ah act which is intended to bring about the substantive crime and would bring it about but.for a mistake of judgment in a matter of nice estimate or experiment, as when a pistol is fired at a man but misses him, or when one tries to pick a pocket which turns out to be empty. In either case the would-be criminal has done his last act.

Obviously new considerations come in when further acts on *272the part of the person who has taken the first steps are necessary before the substantive crime can come to pass. In this class of cases there is still a chance that the would-be criminal may change his mind. In strictness, such first steps cannot be described as an attempt, because that word suggests an act seemingly sufficient to accomplish the end, and has been supposed to have no other meaning. People v. Murray, 14 Cal. 159, 160. That an overt act although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is .expressed in the familiar rule that preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplish men t of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor although there is still a locus penitentice in the need of a further exertion of the will to complete the crime. As was observed in a recent case, the degree of proximity held sufficient may vary with circumstances, including among other things the apprehension which the particular crime is calculated to excite. Commonwealth v. Kennedy, 170 Mass. 18, 22. (See also Commonwealth v. Willard, 22 Pick. 476.) A few instances of liability of this sort are mentioned on the page cited.

As a further illustration, when the servant of a contractor had delivered short rations of meat by the help of a false weight which he had substituted for the true one, intending to steal the meat left over, it was held by four judges, two of whom were Chief Justice Erie and Mr. Justice Blackburn, that he could be convicted of an attempt to steal. Regina v. Cheeseman, L. & C. 140; S. C. 10 W. R. 255. So lighting a match with intent to set fire to a haystack, although the pi-isoner desisted on discovering that he was watched. Regina v. Taylor, 1 F. & F. 511. So getting into a stall with a poisoned potato, intending to give it to a horse there, which the prisoner was prevented from doing by his arrest. Commonwealth v. McLaughlin, 105 Mass. 460. See Clark v. State, 86 Tenn. 511. So in this Commonwealth it was held criminal to let a house to a woman of ill fame with intent that it should be used for purposes of prostitution, although it would seem that the finding of intent meant only knowledge of the intent of the lessee. Commonwealth v. Harring*273ton, 3 Pick. 26. See Commonwealth v. Willard, 22 Pick. 476, 478. Compare Brockway v. People, 2 Hill, 558, 562. The same has been held as to paying a man to burn a barn, whether well laid as an attempt or more properly as soliciting to commit a felony. Commonwealth v. Flagg, 135 Mass. 545, 549. State v. Bowers, 35 So. Car. 262. Compare Regina v. Williams, 1 C. & K. 589; S. C. 1 Denison, 39. McDade v. People, 29 Mich. 50, 56. Stabler v. Commonwealth, 95 Penn. St. 318. Hicks v. Commonwealth, 86 Va. 223.

On the other hand, making up a false invoice at the place of exportation with intent to defraud the revenue is not an offence if not followed up by using it or attempting to use it. United States v. Twenty-eight Packages, Gilpin, 306, 324. United States v. Riddle, 5 Cranch, 311. So in People v. Murray, 14 Cal. 159, the defendant’s elopement with his niece and his requesting a third person to bring a magistrate to perform the marriage ceremony, was held not to amount to an attempt to contract the marriage. But the ground on which this last decision was put clearly was too broad. And however it may be at common law, under a statute like ours punishing one who attempts to commit a crime “and in such attempt does any act towards the commission of such offence ” (Pub. Sts. c. 210, § 8,) it seems to be settled elsewhere that the defendant could be convicted on evidence like the present. People v. Bush, 4 Hill, 133, 134. McDermott v. People, 5 Parker Cr. Rep. 102. Griffin v. State, 26 Ga. 493. State v. Hayes, 78 Mo. 307, 316. See Commonwealth v. Willard, 22 Pick. 476. People v. Bush is distinguished in Stabler v. Commonwealth as a decision upon the words quoted. 95 Penn. St. 322.

Under the cases last cited we assume that there was evidence of a crime and perhaps of an attempt, — the latter question we do not decide. Nevertheless, on the pleadings a majority of the court is of opinion that the exceptions must be sustained. A mere collection and preparation of materials in a room for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote. If the accused intended to rely upon his own hands to the end, he must be shown to have had a present intent to accomplish the crime without much delay, and to have had this intent at a time and place *274where he was able to carry it out. We are not aware of any carefully considered case that has gone further than this. We assume without deciding that that is the meaning of the indictment, and it would have been proved if for instance the evidence had been that the defendant had been frightened by the police as he was about to light the candle. On the other hand, if the offence is to be made out by showing a preparation of the room and a solicitation of some one else to set the fire, which solicitation if successful would have been the defendant’s last act, the solicitation must be alleged as one of the overt acts. It was admissible in evidence on the pleadings as they stood to show the defendant’s intent, but it could not be relied on as an overt act unless set out. The necessity that the overt acts should be alleged has been taken for granted in our practice and decisions, (see e. g. Commonwealth v. Sherman, 105 Mass. 169; Commonwealth v. McLaughlin, 105 Mass. 460, 463; Commonwealth v. Shedd, 140 Mass. 451, 453,) and is expressed in the forms and directions for charging attempts appended to St. 1899, c. 409, § 28 and § 2. Commonwealth v. Clark, 6 Gratt. 675. State v. Colvin, 90 No. Car. 717. The solicitations were alleged in McDermott v. People. In New York it was not necessary to lay the overt acts relied upon. Mackesey v. People, 6 Parker Cr. Rep. 114, 117, and New York cases supra. See 3 Encyc. Pl. & Pr., “ Attempts,” 98. A valuable collection of authorities concerning the crime will be found under the same title in 3 Am. & Eng. Encyc. of Law (2d ed.). If the indictment had been properly drawn we have no question that the defendant might have been convicted.

Exceptions sustained.

Opinion by

Hoffman, J.,

Appellant contends that the Commonwealth’s evidence at trial was insufficient to sustain his conviction for an attempted prison breach.1

*579At the time of the alleged offense, appellant was serving a one- to three-years sentence for larceny in the Luzerne County Prison. At about 12:15 a.m., on December 26, 1972, James Larson, a Guard Supervisor at the prison, heard an alarm go off that indicated that someone was attempting an escape in the recreation area of the prison. The alarm was designed so that it could be heard in the prison office, but not in the courtyard. Larson immediately contacted Guards Szmulo and Banik. Initially, the guards checked the prison population, but found no one missing. The three men then conducted a search of the area where the alarm had been “tripped”. Near the recreation yard between two wings of the prison, they found one piece of barbed wire that had been cut. In addition, Guard Szmulo found a laundry bag filled with civilian clothing. The bags are issued by the prison and are marked with a different number for each prisoner. A check revealed that the bag belonged to appellant.

At approximately 5:15 a.m., on December 26, the appellant voluntarily approached Larson. Appellant had spent that night on the nine p.m. to five a.m. shift at work in the boiler room, situated near the point where the alarm had been triggered. Appellant explained to Larson that “I was gonna make a break last night, but I changed my mind because I thought of my family, and I got scared of the consequences.” Appellant testified at trial that he had become depressed prior to his decision to escape because he had been denied a Christmas furlough on December 24, 1972. His testimony at trial was consistent with Larson’s version of the episode: “... in the yard, I realized that I had shamed my family enough, and I did not want to shame them any more .... So I went back to the boiler room and continued working.”

On April 18, 1973, the grand jury returned an indictment charging the appellant with prison breach. Appellant went to trial on May 25, 1973, before a judge sitting without a jury and was found guilty of attempted prison *580breach. Thereafter, appellant filed motions in arrest of judgment and for a new trial. Motions were heard in October, 1973, and denied on June 10, 1974, by the Luzerne County Court of Common Pleas en banc. This appeal followed.

A criminal attempt is defined as “an overt act done in pursuance of an intent to do a specific thing, tending to the end by 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 long 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.” Commonwealth v. Eagan, 190 Pa. 10, 21-22 (1899) (Emphasis added). Thus, we must locate the line between an act which is mere preparation and one that is sufficiently proximate to be labelled an attempt.

A review of the cases on the law of attempt indicates that “[i]t is difficult to formulate any precise rule about how close the overt act must come to the accomplishment of the ultimate criminal result.” 21 Am. Jur. 2d Criminal Law §111. “At what point does a potential criminal pass beyond preparation and become guilty of an attempt? Among the various tests suggested or applied are: the last act doctrine, holding that the defendant will not be guilty of an attempt until he does the last act necessary to the commission of a crime; Justice Holmes’ dangerous-proximity test which focusses on both the dangerousness of the crime and the nearness to which the defendant has come to accomplishing it; and the movie camera test, which disregards the defendant’s declarations of intent and instead focusses on the extent to which his acts demonstrate a specific intent or commitment to the criminal purpose.” White, The Inchoate Crimes Provisions of *581the New Pennsylvania Penal Code, 35 Pitt. L. Rev. 235, 237-38 (1973). Professor White suggests that the law in Pennsylvania approximates the last act doctrine, Id.

Commonwealth v. Willard, 179 Pa. Superior Ct. 368, 116 A. 2d 751 (1955), represents the broadest statement of what constitutes mere preparation. In Willard, this Court reversed the appellant’s conviction for attempt to perform an abortion. The Commonwealth proved that the appellant accepted $160 from a police undercover agent, told her to undress and to lie on a bed equipped for the operation, left the room momentarily and returned with surgical instruments. At that point, the police agent and her “paramour”, stationed in the next room, arrested the appellant. These acts were held not “sufficiently close or proximate to the completed crime so that it could be said that they were done in pursuance of the intent to commit the crime as distinguished from mere preparation to commit the crime.” 179 Pa. Superior Ct. at 371, 116 A.2d at 752-753.2

In Commonwealth v. Eagan, supra, a seminal case on the law of attempts, the Court noted that “. . . the acts of the prisoner in going to [the victim’s] place and watching his house, and even of preparing the rope to tie him, while undoubtedly done in pursuance of the intent, did not go beyond mere preparation, and had the intent been abandoned at this point, an indictment for an attempt to commit robbery or burglary could not have been sustained. But the moment a blow was struck on [the victim] the first step of the actual crime had been taken, and *582the intent was merged in the attempt. Subsequent abandonment might prevent the completion of the crime, but could not save from the consequences of acts done in the attempt.” 190 Pa. at 22.

We recently dealt with an attempted prison breach in Commonwealth v. Skipper, 222 Pa. Superior Ct. 242, 294 A. 2d 780 (1972). In Skipper, appellant approached a fellow prisoner and asked him to procure hacksaw blades to be used in an escape attempt. The fellow prisoner, Commonwealth’s witness at trial, worked in a bakery in a day release program and was to hide the blades in loaves of bread bound for the prison kitchen. Prison officials intercepted a note that the Commonwealth’s witness attempted to pass to a third prisoner, one Schaef-fer, who was to pay him for smuggling the blades into the prison. Subsequently, prison officials caught Schaeffer attempting to go over the prison wall. They found one of the smuggled blades on Schaeffer. A “shake-down” of the prison uncovered two additional blades in appellant’s cell. We reversed appellant’s conviction, noting that “discovery of the hacksaw blades in appellant’s cell did no more than interrupt appellant’s alleged plan in a preparatory stage. If the hacksaw blades were in fact procured by the appellant for use in an intended prison breach, appellant would have had sufficient time to withdraw before the commission of the offense.” 222 Pa. Superior Ct. at 245, 294 A. 2d at 781.

In the instant case, the evidence on the record indicates that appellant scaled a fence within the prison walls that led to the recreation yard and then to the prison wall. Appellant testified that “I went over the fence. I was in the yard.

“Q. Well, when you say you went over the fence, this is still in the prison?

“A. This is still in the prison, yes, sir. . .”

The Commonwealth’s evidence supports the appellant’s claim that he went only as far as the yard before giving *583up his plan to escape. Guard Szmulo testified that “We checked the trip wire. We couldn’t find nothing broke. And then when I got to the gate that goes into the recreation yard between center and left wing, I found one barbed wire was cut.” Thus appellant was still within the prison, still only contemplating a prison breach, and not yet attempting the act. He was thus in a position to abandon the criminal offense of attempted prison breach voluntarily, thereby exonerating himself from criminal responsibility.

Judgment of sentence is vacated and appellant ordered discharged on the conviction of attempted prison breach.

Watkins, P. J., and Jacobs and Spaeth, JJ., join in this opinion.

Van dee Voort, J., concurs in the result.

Concurring Opinion by

Cercone, J.:

I agree with the majority that appellant’s conviction for attempted prison breach should not be permitted to stand. However, I disagree with the basis for the majority’s conclusion, that the acts done by appellant prior to his decision to abandon his escape were insufficient to constitute an attempt. I would have found little difficulty, for instance, in affirming appellant’s conviction had he been apprehended by the guards immediately after he had snipped the barbed wire and crossed the inner fence. To hold otherwise is to require that prisoners must literally be plucked from the prison wall before their conduct may be characterized as attempted prison breach.

I respectfully suggest that the majority has fallen into a trap peculiarly common to the law of attempts. As Professor Perkins has stated in discussing when conduct ceases to be merely preparatory and becomes perpetration:

“The preparatory-perpetrating dichotomy is useful in discussing situations of a rather general nature, but the actual dividing line between the two is shadowy *584in the extreme. There is reason to believe that in close cases the decision is based wpon other considerations and that the label attached is that appropriate to the conclusion reached — after it is reached.” R. Perkins, Criminal Law 561 (2d ed. 1969). [Emphasis added.]

The “other consideration” which has influenced the majority herein is appellant’s voluntary abandonment of his escape plan. In my opinion, appellant’s abandonment of his plan is a sufficient defense to the crime of attempted prison breach and should be recognized as such.

As a practical matter, it has long been recognized that plans voluntarily abandoned are less likely to be found to be attempts than are plans carried to the same point, but interrupted by the apprehension of the perpetrators. Unfortunately, in jurisdictions where voluntary abandonment or renunciation of a criminal purpose has not been recognized as an affirmative defense, the courts have sought to give effect to the defendant’s abandonment, sub silentio, by characterizing his conduct as “preparatory.” See Model Penal Code §501, comment 19 at p. 70 (Tent. Draft No. 10, 1958). That is precisely the error which the majority has made in the instant case. The difficulty with this position is that, with regard to the preparation-perpetration dichotomy, it breeds results superficially inconsistent. If voluntary abandonment is to be given effect in attempt cases, it should not be done covertly.

For some time the trend in the law has been to recognize voluntary abandonment as an affirmative and complete defense to a charge of attempt, despite the exhortations to the contrary by some commentators.1 Id. And, in *585following this trend our legislature substantially adopted section 5.01 of the Model Penal Code in drafting the attempt provisions in our recently enacted Crimes Code.2 Our Code now recognizes that abandonment under circumstances indicating voluntariness, is a complete defense to a charge of attempt. Appellant, however, was charged under our old Penal Code which did not speak to whether voluntary abandonment was a defense to a charge of attempt.3

In one of the first cases ever decided by this court, we stated:

“In the case under consideration, Johanna Tadriek left her mother’s house, intending to steal the prosecutor’s money, entered the house of the prosecutor and seated herself on the bed where she knew the money was concealed. Nothing remained to be done save to insert her hand and secure the money. Each of the three acts mentioned was intended to be, and actually was, a step towards the consummation of her felonious purpose. Taken together and in connection with the uninterrupted intent existing in her mind, we are compelled to hold that they constituted an attempt at larceny which would have been punishable had she gone no further. If the offense of larceny were not completed, we must assume, from the evidence, that *586the failure was not owing to a change of purpose, which of course would leave her guiltless, but to extraneous circumstances, over which she had no control. An overt act is one which manifests an intention to commit the crime: Bouvier’s L.D. 267. It need not be the last proximate act prior to the consummation of the attempted crime, if the latter be a felony: Uhl v. Commonwealth, 6 Grattan, 706; 1 Bish. Crim. Law, sec. 764.” Commonwealth v. Tadrick, 1 Pa. Superior Ct. 555, 566 (1896) [Emphasis added.]

It is clear that this court long ago perceived voluntary abandonment to be an affirmative defense to the crime of attempt; and, I have not been referred to any Pennsylvania authority which persuades me that this court’s implicit conclusion was then erroneous, nor any authority to indicate that this court’s observation in Tadrick has not withstood the test of time. On the contrary, as aforementioned, voluntary abandonment is now recognized in Pennsylvania as a statutory defense to an attempt charge.

Sound policy reasons also underlie the recognition of voluntary abandonment as an affirmative defense. As the drafters of the Model Penal Code have pointed out, the defense of complete and permanent abandonment should be allowed because voluntary abandonment negates the conclusion that the accused continues to be dangerous; and, the knowledge that voluntary abandonment exonerates one from criminal liability provides a motive to desist prior to completion of the crime. Model Penal Code §5.01, comment 19 at pp. 71-72 (Tent. Draft No. 10, 1958). See also Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Co-lum. L. Rev. 571, 617 (1961).4

*587Thus, I have concluded that the law in Pennsylvania recognized voluntary abandonment as an affirmative defense even prior to the adoption of the Crimes Code. In any event, the trend in the United States is so profoundly in favor of such a defense that we should have recognized its existence in the instant case even had the Crimes Code not been enacted. Furthermore, I think it would be erroneous to construe the attempts provision of the Crimes Code as somehow implying that the law was otherwise prior to the Code’s adoption. On the contrary, I think the adoption of that provision only fortifies the conclusion I have reached herein.

Therefore, I would not rest the decision of this case on the basis that appellant’s acts prior to renunciation of his criminal purpose were merely preparatory; for, as has my brother, Judge PRICE, I have concluded that appellant had clearly gone further than preparation. Rather, I would rest the instant decision on appellant’s unequivocal and undisputedly voluntary abandonment of his criminal purpose. Thus, I only concur in the result reached by the majority herein.

Spaeth, J., joins in this opinion.

Dissenting Opinion by

Price, J.:

I cannot agree with the majority’s conclusion that appellant’s acts were confined to preparation and contemplation, therefore, I must respectfully dissent.

The facts are fully set forth in the majority opinion and need not be repeated. The evidence is sufficient to establish that appellant went over a forbidden fence, albeit still within the physical confines of the prison, cut a piece of barbed wire and tripped the alarm system designed and equipped to alert the authorities to attempts *588at prison breach. Any one of these three acts "would, in my opinion, take appellant beyond preparation and contemplation. Accordingly, there is more than sufficient evidence to sustain appellant’s conviction.

I would affirm the judgment of sentence.