Opinion of the Court. present Constitution, is very much strengthened by the variance which is disclosed by comparison with Section II of Article I, of the Constitution of 1802. The last-named section is substantially the same as the one now in force, except in the last clause which is as follows: "and shall have all other powers necessary for a branch of the Legislature of a free and independent state." It is certain that if the doctrine of inherent powers of legislative bodies ever had any existence under a constitutional government it was recognized and granted in this broad language of our former Constitution, and that it was not included in the grants of the present Constitution; but without attempting to define the extent of powers conferred by this clause of the Constitution of 1802, it is obvious to the most casual reader that it is much broader than the grant of power in the present Constitution. It is inconceivable that a convention called "to revise, amend or change the Constitution of this state" should not have noticed the difference in the language of the two Constitutions and should not have appreciated the significance of the change. The conclusion would, therefore, seem to be irresistible that the framers of the Constitution designedly narrowed the grant of powers to each house of the General Assembly to those which are expressly mentioned. But it is said that even if it be so that a single branch of the General Assembly could not by itself constitutionally appoint an investigating committee for purposes such as proposed here, it is nevertheless authorized to do so by an act of the whole General Assembly and that this com Opinion of the Court. mittee was expressly appointed by the Senate under and by virtue of Sections 50 to 55, inclusive, of the Revised Statutes of Ohio. If a single branch of the General Assembly has no constitutional power to appoint this committee, it must be obvious that the whole Legislature can not authorize it to do so. The Constitution is above the Legislature, and the legislative power which may be delegated to the General Assembly can not be redelegated to some other body. We do not, however, accept the construction of the statute which is contended for by the relator. The Sections 50 to 55, inclusive, of the Revised Statutes, may be found as originally enacted March 30, 1872, in 69 O. L., 61, where the act is entitled "An act to authorize committees of the General Assembly to compel the attendance of witnesses, and for other purposes.' From the title of the act and from its purview, it is apparent that the thought of authorizing the appointment of standing or select committees by the General Assembly itself or by a single branch thereof was not in the mind of the Legislature; but that, assuming them to have been already appointed (and nobody ever questioned the right of either branch of the General Assembly to appoint such committees in regard to matters over which such house has express authority in the Constitution) the General Assembly proceeds to provide for their greater efficiency in the discharge of their functions, by providing a mode and authority for compelling the attendance of witnesses, the punishment for contempt, etc. We are entirely unable to see how the construction of these sections of the Revised Statutes as contended for by the re Opinion of the Court. lator can be fairly put upon them; and if they could be so construed, then, entertaining the views which we have already expressed as to the constitutional powers of a single branch of the General Assembly, we would feel compelled to declare this legislation to be unconstitutional. We prefer a construction which would allow the statute to stand with the Constitution, by applying it only to matters or procedure by committees which have been otherwise duly and constitutionally appointed. It was suggested in argument that the appropriation (98 O. L., 42) by the concurrent action of both houses of the General Assembly is a ratification of the Senate resolution. It is perhaps a sufficient answer to this to recall once more the indefinite character of the appropriation. It is not a definite appropriation for the use of the committee appointed by the Senate resolution, but for the use of "committees." Nor can it be said that the making of an appropriation to the Senate contingent fund for a stated purpose is in the nature of a bill authorizing the committee; because it does not profess to authorize the committee or ratify the resolution of the Senate and because the resolution being void under the Constitution it could not be ratified. In behalf of the respondent it has been argued with much force and keen analysis that upon the face of the Senate resolution the scope and purpose of the inquiry is an exercise of judicial power, which is expressly forbidden by Article II, Section 32, of the Constitution, and therefore that it is beyond the power of the General Assembly. Opinion of the Court. It is not necessary to decide this question in this case and therefore we do not pass upon it. People, ex rel., v. Keeler, 99 N. Y., 463, has been vigorously pressed upon our attention, by counsel for the relator, as decisive of this case; but we do not regard it as controlling or even persuasive, for several reasons, the chief of which are: First, that the Constitution of the state of New York contains no such distinct distribution of powers as is found in the Constitution of this state; and, second, that the court in that case expressly held that certain powers in their nature judicial belong to the Legislature of the state of New York, and that therefore a statute is not necessarily void which involves action on the part of either house which is in its nature judicial. Such a decision could not have been made under the provisions of the Constitution of Ohio to which we have referred, especially Article II, Section 32. the The demurrer to the petition is sustained and Petition dismissed. SHAUCK, C. J., PRICE and SUMMERS, JJ., conCREW and SPEAR, JJ., dissent. cur. Statement of the Case. CONRAD, alias CASTOR, V. THE STATE OF OHIO. Killing during perpetration of a crime-Is murder in first degree, when-Penal statutes strictly construed-Section 6808, Revised Statutes-When two together commit burglary and one kills an arresting policeman-Both burglars are equally guilty-Interpretation of statutes-Res gestae-Criminal law. 1. The rule as to strict construction of penal statutes does not require the courts to go to the extent of defeating the purpose of the statute by a severely technical application of the rule. 2. Where one starts to carry out the purpose to commit a rape, . arson, robbery or burglary, and kills another under circumstances so closely connected with the crime which he has undertaken as to be a part of the res gestae thereof, he is guilty of murder in the first degree, within the meaning of Section 6808 of the Revised Statutes, whether the crime which he originally undertook has been technically completed or not. 3. When two, in furtherance of a common design, enter upon the perpetration of a burglary armed and prepared to kill if opposed, and while so engaged are discovered, and in the effort to escape one of the burglars kills one who is trying to arrest him, both burglars are equally guilty of the homicide, although one of them was not armed with a deadly weapon, and although such killing was not part of the prearranged plan. 4. When under such circumstances one of the burglars, at a short distance from the building and on another lot, shot and killed a police officer, who had commanded him to halt, the court properly found that the killing was in the perpetration of the burglary, and that it was murder in the first degree. (No. 10048-Decided October 16, 1906.) ERROR to the Circuit Court of Franklin County. The plaintiff in error, Frank Conrad, alias Frank Castor, was indicted with one John Doe, whose real name was unknown, and charged with having on or about the seventh day of June, 1905, committed the crime of burglary in and upon a certain dwelling-house in the city of Columbus, and that while engaged in the perpetration of the |