plainly expressive of an intent, rendered du- | expression. Calder v. Bull, 3 Dall. 386 [1 bious by context, the interpretation must L. Ed. 648]; United States v. Wilson, 32 U. conform to and carry out that intent. S. [7 Pet.] 150 [8 L. Ed. 640]; Martin v. Where, by the use of clear and un- Hunter, 14 U. S. [1 Wheat.] 304 [4 L. Ed. 97]; equivocal language capable of only one mean- Cohens v. Virginia, 6 Wheat. 264 [5 L. Ed. ing, anything is indicated by the Legislature, 257]; United States v. Dickson, 40 U. S. [15 it must be enforced, even though that be ab- Pet.] 141 [10 L. Ed. 689]; Prigg v. Pennsylvasurd or mischievous. If the words go be- nia, 41 U. S. [16 Pet.] 539 [10 L. Ed. 1060]; yond what was probably the intention, the Cooley v. Philadelphia, 53 U. S. [12 How.] effect must nevertheless be given to them." 299 [13 L. Ed. 996]; Hahn v. United States, 107 U. S. 402 [2 Sup. Ct. 494, 27 L. Ed. 527]; Burrow Co. v. Sarony, 111 U. S. 53 [4 Sup. Ct. 279, 28 L. Ed. 349]; Brown v. United States, 113 U. S. 568 [5 Sup. Ct. 648, 28 L. Ed. 1079]; McPherson v. Blacker, 146 U. S..1 [13 Sup. Ct. 3, 36 L. Ed. 869]" State of New Jersey, by Morris, v. Wrightson, 56 N. J. Law, 126, 28 Atl. 56, 22 L. R. A. 548.

The fact that the Legislature of 1911 passed an address, and that it was acted upon by the Governor precisely as in this case, cannot be considered as of any weight in the construction of the amendment by the court, because the Legislature may suspend laws by virtue of the Constitution, but it cannot suspend the Constitution, nor can it authorize any department of the government to suspend it. "We are bound to take judicial notice of the doings of the executive departments of the government, and, when called upon by proper authorities, to pass upon their validity." Opinion of the Justices, 70 Me. 609.

* *

The rule of law that where clear and unambiguous language is used in a statute that admits of only one meaning, that that meaning must be accepted by the court as the meaning intended, was clearly established in Heydon's Case, 3 Coke, 76, cited in Abbott v. National Bank of Commerce, 175 U. S. 409, 20 Sup. Ct. 153, 44 L. Ed. 217, and the doctrine that the court cannot allow an exception not expressed in the statute containing the exception, subject to the qualification

"Where its terms are plain, clear, and determinate, they require no interpretation, and it should therefore be admitted, if at all, with great caution, and only from necessity either to escape some absurd consequence or to obviate a construction which would be unto guard against some fatal evil. Contemporaneous construction is properly re-tablished beyond all controversy in the case just, oppressive, and unreasonable, was es

sorted to, to illustrite and confirm a context,
to explain a doubtful phrase, to expound an
obscure clause.
* It can never abro-

*

gate the test; it can never narrow down its true limitations; it can never enlarge its

of Stowell v. Lord Zunch, Plowd. 350, de-
cided in the year 1569, in which suit there
was involved the title to 80 messuages and
2,280 acres of land, was argued in the
Exchequer Chamber before all the justices of

England, presided over by Chief Baron Saun-
ders.
the consultation several of the justices oc-
So important was the case that at
cupied a whole day in stating their views

and reasons.

There is an unbroken line of decisions fol

have been followed in all common-law courts,

natural boundaries." 1 Story Const. $$ 405 407. Consequences for no length of time can legalize a clear usurpation of power where the people have plainly expressed their will in the Constitution, and appointed judicials to enforce it. The power is sufficiently yielded to merely cause its claim, and it may be exercised for a long period in violation of lowing the rule laid down in those two cases. constitutional prohibition without the mis-Only a few of them are cited above, but they chief which the Constitution was designed and unless some valid reason can be given to guard against appearing, or without any one being sufficiently interested in the subject to raise the question; but these circumstances cannot be allowed to sanction a clear infraction of the Constitution. We think we allow a contemporaneous and practical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve in its own favor the doubts which arise on reading the instrument to be construed." Cooley's Const. Limitations, 84, 85.

"An examination of the cases in the Supreme Court of the United States will dis. close the fact that long usage, contemporaneous construction, and practical interpretation have been resorted to in construing statutes and constitutional provisions only to ascertain the meaning of technical terms, or to confirm a construction deduced from the language of the instrument, or explain a

for a change, neither the legislative, executive, nor judicial departments of the government should disregard those rules of law enforced by the court for more than three centuries, to defeat the will of the people plainly expressed in the Constitution (for the alleged reason that they did not mean what they plainly expressed), by reading into the Constitution words that changed the meaning as therein expressed and thereby take from the people power they reserved to them selves.

The plain and obvious language of the Constitution, as amended, sustains the posi tion of the relator. The intent of the amendment is as plain as the English language can make it. To hold the address proceedings valid, we must disregard the rules of law for the construction of statutes and Consti

without exception, for centuries, and disre- [6. CRIMINAL LAW (§§ 763, 764*)—INSTRUCTIONS-DYING DECLARATIONS. gard the warning so clearly set forth in the In a murder case, it was not error to inauthorities above cited. In view of the clear-struct, relative to dying declarations, that the ness of the statement and force of the rea- theory of the law is that a person is apt to soning contained in the eminent authorities tell the truth in such a solemn moment; but the fact that a man is dying when he makes a cited, this court may well hesitate to enter a declaration of any kind must be considered in field so speculative and dangerous. the light of all the conditions and circumstances surrounding him. '

The constitutional question is clearly before the court, and, as the Constitution prohibits address proceedings in the manner they were passed by the Legislature and acted upon by the Governor and Council, it is the duty of the court to declare them void and the relator entitled to judgment of ouster.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 3114-3123; Dec. Dig. § 11662.*]

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.*]

Appeal from Court of Oyer and Terminer, Lackawanna County.

John Chiemilewski was convicted of murder of the first degree, and appeals. Affirmed.

From the record, it appeared that the deceased, McAndrew, who was a patrolman, had gone to the house of defendant on the night of the killing, in company with two other officers, for the purpose of arresting two companions of defendant for robberies in which defendant had participated.

The court charged the jury, inter alia, as follows: "I need not comment on the dying declaration of the deceased. You heard the statement, and you are in duty bound to give it the weight it deserves. The theory of the law is that a person is apt to tell the

2. JURY (8 116*) VENIRE GROUND FOR truth in such a solemn moment; but the fact QUASHING.

That an executed writ of venire is improperly attested, due to the use of an old blank containing the name of a former judge, will not require that the array of jurors be quashed. [Ed. Note.-For other cases, see Jury, Cent. Dig. § 542, 543; Dec. Dig. § 116.*] 3. JURY (8 67*)-WRIT OF VENIRE-AMEND

MENT.

Where a writ of venire otherwise correct is improperly attested, due to the use of an old blank containing the name of a former judge, the court may allow it to be amended

after its execution.

that a man is dying when he makes a declaration of any kind must be considered by the jury in the light of all the conditions and all the circumstances surrounding the dying man" (31).

Other facts appear by the opinion of the Supreme Court. Verdict of guilty of murder of the first degree, upon which sentence of death was passed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

Clarence Balentine and P. C. Foley, both of Scranton, for appellant. David J. Reedy, Dist. Atty., and Thomas A. Donahoe, Asst. Dist. Atty., both of Scranton, for the Com

[Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 291-302, 306; Dec. Dig. § 67.*] 4. JURY (§ 58*)-DRAWING PANEL-STATUTE. Under Act April 10, 1867 (P. L. 62) § 3, providing that the jury commissioners and the sheriff, "or any two of them," shall draw panels of jurors, the jury wheel may be open-monwealth. ed in the presence of the sheriff and but one commissioner; such provision of the statute not being changed by Act March 18, 1874 (P. L. 46), providing that a new panel may be chosen if the wheel "has been opened, unlocked or unsealed, except in the presence of such sheriff and jury commissioners," and a challenge to the array sustained therefor.

[Ed. Note.-For other cases, see Jury, Cent. Dig. § 266; Dec. Dig. § 58.*]

5. HOMICIDE (§ 172*) EVIDENCE OF OTHER OFFENSES-ADMISSIBILITY.

Where, in a prosecution for the murder of a patrolman, there was evidence that defendant, at the time of the killing, was attempting to avoid arrest for certain robberies, evidence of the robberies, and of defendant's participation therein, was admissible to explain the murder, and show the motive which prompted its commission, and that the killing was willful and intentional, and not accidental.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 372, 373; Dec. Dig. § 172.*]

POTTER, J. [1-3] In the first assignment of error here filed, counsel for appellant urge that the trial court erred in refusing to quash the array of jurors.

When the writ of venire was issued, it was attested in the name of "the Honorable R. W. Archbald, President Judge of our said court at Scranton," etc., whereas, in fact, Judge Archbald was not at that time a judge of the court below. The error resulted from the use, by the clerk, of an old blank in which the name of Judge Archbald was printed, and his name was not erased therefrom when the writ went out, nor was the name of the present judge inserted. Subsequently the court below permitted the writ to be amended in these particulars; but this was

* * *

[4] It appears, also, from the record in this case, that the jury wheel, which was sealed by the sheriff and both jury commissioners, there being three seals, was opened at the proper time in the presence of the sheriff and one commissioner. The other commissioner was kept away by illness. This was alleged as an additional reason in support of the motion to quash the array of jurors. It was urged that the wheel could not be legally opened except in the presence of the sheriff and both commissioners.

not done until the writ had been executed, | a trial on the merits, or pleading guilty on and after the motion to quash had been the general issue, shall be a waiver of all made. With the exception noted, the writ errors and defects in or appertaining to the was correct in every respect. It followed the precept, venire, drawing, summoning, and form prescribed by the act of assembly, was returning of the jurors. We do not issued in the name of the commonwealth, think this decision is applicable to a case signed by the clerk of the court, and sealed where the prisoner makes his objections at with the seal of the court. In Com. v. Smith, first to the panel of jurors, and, on their be2 Serg. & R. 300, decided in 1816, in the blank ing overruled, takes a proper bill of excepleft in the printed form of venire, for the tions; but the decision is strongly illustraname of the president judge, no name was tive of the unwillingness of courts to sustain inserted. For this reason, it was urged that objections to the jury, grand or petit, after a the array of jurors should be quashed. It full and fair trial on the merits." was held that the venire was superfluous, as the precept of the court was sufficient authority for the drawing of the jury. Defects in the venire were therefore immaterial. The act of April 14, 1834 (P. L. 333), prescribes the writ for the first time. But in the decision in Com. v. Smith, supra, Chief Justice Tilghman said: "What weighs greatly with the court is that the errors assigned do not affect the merits of the case." So in the present instance the failure of the clerk to substitute the name of Judge Edwards for that of Judge Archbald in the attestation of The act of April 10, 1867 (P. L. 62) § 3, prothe writ does not in any way affect the mer- vides that the jury commissioners and sherits of the case. The alleged defect was at iff, "or any two of them," shall draw from most a clerical error, and the writ, having the proper wheel panels of jurors, etc. The been properly executed, was amendable. The terms of this act were met in the present venire was only a precept to the sheriff to case. But it is contended that the act of summon the jurors drawn, and, having an- March 18, 1874 (P. L. 46), which was a supswered its purpose, it cannot now be assail-plement to the act of 1867, changed the law. ed for any mere irregularity not affecting substantial justice. The general principle is thus stated in 12 Ency. L. & Pr. 300, where it is said: "Unless the form or sufficiency of the order (to the officers charged with the duty of procuring jurors) is essential to the validity of the action of the commissioners or other like officers, mere informalities or irregularities which do not cause a positive violation of statute may be disregarded."

In Rolland v. Com., 82 Pa. 306, 322 (22 Am. Rep. 758), where the jury commissioners omitted to make any return to the venire, Mr. Justice Paxson said: "This omission could and ought to have been supplied by the court below as soon as its attention had been called to it by an order upon the jury commissioners to return the venire. It was but an amendment of the record, and a record may be amended even after writ of error or certiorari lodged in the office. In re Sheppard's Election, 77 Pa. 297. The error is more formal than substantial, and the court below appears to have had such evidence before it as satisfied its conscience that the law had been complied with in all important particulars."

In Brown v. Com., 76 Pa. 319, 336, Mr. Chief Justice Agnew said: "In Dyott v. Com., 5 Whart. 67 (cited in the paper books), it was held that, after a prisoner stands mute, a plea of not guilty is entered for him, and he participates in the trial, and is convicted, the case falls within the act of February 21,

The act of 1874 provided for the selection of a new panel when a challenge to the array of a former panel has been sustained, or the array quashed. In the first section, enumerating the instances in which a new panel may be chosen, it is said: "If by accident, mistake or neglect of the sheriff or jury commissioners of any county, or either of them, the wheel aforesaid has been opened, unlocked or unsealed, except in the presence of such sheriff and jury commissioners, and a challenge to the array has been sustained for any of the last-mentioned cause." This language, it is suggested, changed the requirements of the act of 1867, and permits the wheel to be opened only in the presence of the sheriff and two commissioners. We do not see in it any intention to repeal or amend the act of 1867 in this respect. Its purpose is to provide a method of supplying jurors when a previous array has been quashed. That is not the case here. The jury commissioners may be regarded as a body, and as such the act of 1867 authorizes one of them representing the body, and acting with the sheriff, to draw panels of jurors from the wheel. The power to draw from the wheel includes manifestly the right to open it. We are of the opinion that the court below was right in refusing to quash the array of jurors.

[5] In the second and tenth assignments of error, counsel for appellant complain of the admission of evidence of robberies at Simpson and at Throop, and of appellant's par

In an action for the death of a pedestrian from collision with an automobile on a crowded street, it was not error to submit to the jury the question whether, considering the congest-timony was conflicting, and it was submitted ed condition of the street, the automobile was being run at a negligent speed.

Appeal from Court of Common Pleas, Al- parts of the charge bearing upon the same legheny County.