Opinion by
Mr. Chief Justice Maxey,
On the evening of March 5, 1948 the appellant and a companion burglarized the unoccupied home of Roy Klinzing in Bethel Township. Their presence was noticed and the police were called. Two officers entered the house, arrested appellant and his accomplice, and then ordered them to precede the officers out of the house. Right after they did so, one of the prisoners remarked, “Stay where you are. Don’t anyone move.” DiPofi covered the officers with a gun and then backed away and directed the officers to enter their car. The officers made a break and DiPofi fired at them, fatally wounding officer Chemelynski, who died four days later.
On the trial, before the. defendant took the stand, the Commonwealth offered in evidence the criminal record of the defendant showing 16 or more prior convictions or pleas, all on indictments for burglary. The
offer was objected to. The objection was overruled and the evidence was admitted, accompanied by the following instruction by the judge: “These other records, 15 of them,
have been received in evidence for another reason altogether and I will stress that again in connection with my charge, but I want you to have it in mind at this point. You are not under any circumstances to treat these 15 cases as in any way indicating the guilt of this accused in this case. You are only to treat them as an aid to you, if so they be, if you find the defendant guilty of first degree murder, and then in consideration of the penalty that you will impose for that offense, if you so find. Please keep that definitely in mind.” In his charge to the jury, the judge stated that the records “were received in evidence solely for the purpose of assisting you in determining the penalty to be inflicted upon the defendant, if you find him guilty of murder in the first degree and to enable you to know what manner of man he is. They are in no circumstances to be considered in weighing the question of the defendant’s guilt or innocence, or the degree of the offense. You must not take account of them at all unless you first find that the defendant is guilty of first degree murder.”
The jury returned a verdict of murder in the first degree and fixed death as the penalty. Sentence was imposed, a new trial was refused, this appeal followed.
The admission of the records of fifteen burglaries unrelated to the crime charged and the above instructions of the court in respect thereto are assigned as error.
At common law, evidence of the commission of a distinct crime was not admissible in the absence of a connection between the two crimes. This is still the law in Pennsylvania. This Court said in
Commonwealth v. Williams,
307 Pa. 134, 151 (1932), 160 A. 602: “there can be little doubt that the admission of a prior conviction trenches very strongly on the fundamental rule of evidence, that a distinct crime unconnected with that on trial cannot be given in evidence against a prisoner as proof of the crime on trial.” But in the same case we considered the Act of May 14,1925, P. L. 759, which gave a jury adjudging a defendant guilty of murder in the first degree the right to fix the penalty of death or life imprisonment, and we said: “That act introduced a new feature in the procedure of homicide trials . . . Does the Act of 1925 open a new field of evidence to the extent here claimed? . . . Obviously, the legislature, in directing the jury to fix the penalty and providing a new penalty, intended that the jury should have some guide in determining which punishment to inflict.” We held that evidence as to prior convictions might be offered “in aggravation of the penalty”, but that this evidence “must be strictly limited” to that purpose. “But in no case should a record of such criminal acts such as pickpocketry, adultery, embezzling, perjury, or others of a similar nature be used in aggravation of the penalty.” We added: “Where the trial judge is convinced that such [previous] crime was committed for profit, such as the crimes of highway robbery, burglary, murder for life insurance, bank holdups, and the like, and that the criminals are habitual offenders against society, then prior convictions may properly be received by the jury as an aid in determining the penalty to be inflicted.” In that same case we discussed the Act of March 15, 1911, P. L. 20, which reads as follows:
“An Act Regulating in criminal trials the cross-examination of a defendant, when testifying in his own behalf.
“Hereafter any person charged with any. crime, and called as a witness in his own .behalf, shall not be asked, and, if asked, shall not be required, to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than, the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation; unless,— .
“One. He shall have at such trial,, personally or by his advocate, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character, or reputation; or,
“Two. He shall have testified at such trial against a co-defendant, charged with the same offense.”
We said: “this act extends only'to the cross-examination of the accused, as the title and the body of the act specifically applies, to such examination. It is ‘an act regulating in criminal trials the cross-examination of a defendant when testifying in his own behalf,’ and does not relate to affirmative proof by the Commonwealth already admissible under the exceptions above listed.”
In
Commonwealth v. Parker,
294 Pa. 144 (1928), 143 A. 904, this Court said in an opinion by Chief Justice Moschzisker : “The Act of 1925 was not passed to help
habitual criminals, and we take judicial knowledge of the fact that offenders of that designation have become so general that the law, not only lex scripta but non scripta, must advance to protect society against them. This being so, in a case like the' present, where the trial judge was convinced from the confessions of the defendants, as the court below evidently was, that they were habitual offenders' against society, — robbers, burglars, and, as occasion arose, murderers, — Lwhere the evidence indicated such to be their general manner of life, and where the defendants asked that, if convicted, the jury, in assessing punishment, extend mercy to them, we cannot say it was reversible error to receive their full confessions in evi'dencé, even though it is possible that the admissions therein of other offenses may have militated in a general way against defendants.” We reiterated this in
Commonwealth v. Mellon,
294 Pa. 339, 144 A. 534.
In
Commonwealth v. Dague,
302 Pa. 13, 152 A. 839, this Court in an opinion by Justice Schaffeb said, in discussing the Act of May 14, 1925, that the jury is entitled to know what manner of man the defendant is. In that case the court below had stated that it was “convinced, from the admissions of the defendant and the other evidence in the case, that the defendant is an habitual offender against society, a robber of the type that would commit murdér, when necessary, to accomplish his purpose.” .
In
Commonwealth v. Kurutz,
312 Pa. 343, 168 A. 28, the Court in an opinion by Justice Kephaet in discussing the Act of 1925: “In such cases the jury may have before it the past deeds of the accused that it may be fully advised of his nature and deserts when it fixes the penalty, to be suffered by him.”
Appellant contends that the rule enunciated in the above cases no longer prevails since the passage of the Act of July 3, 1947, P. L. 1239, “amending” the Act of 1911, supra. The Act of 1947 bears this title: “ ‘An act
regulating in criminal trials the cross-examination of a defendant, when testifying in his own behalf’, by further providing what evidence is or is not admissible.” There are two substantial differences between the Act of 1911 and the Act of 1947. The subject matter of the Act of 1911 is the
cross-examination
of a defendant when testifying in his own behalf. The subject matter of the Act of 1947 is
affirmative proof
by the Commonwealth at the. trial of
any person charged with crime
whether or not he is called as a witness in his own behalf. The third paragraph of the Act of 1947 is entirely new.
Some commentators have assumed that subsection 3 of the Act of 1947 is “a new addition to the Act. of 1911; it is, in substance, an exact reproduction of §1 f (i) of the English Criminal Evidence Act of 1898, the omission of which section from the Act of: 1911. caused Dean Wigmore to term it a ‘vicious piece of legislation’, for he thought that by omitting §1 f (i), the Pennsylvania General Assembly intended to keep out evidence of all of those crimes having an independent relevancy.” There is a vital difference between the Act of 1947 and the English Criminal Evidence Act of 1898. The English
Act applies
only
when a person who is charged with a crime
becomes a witness in Ms own behalf
and it relates solely to the questions that may be asked him on
cross-examination.
The Pennsylvania Act of 1947 applies
to
any person charged with
crime
whether he testifies in his own behalf or not, and defines what
affirmative
evidence may be used against him. While §1 f (i) of the English Criminal Evidence Act reads somewhat like the last subsection of the Pennsylvania Act of 1947, a comparison of the corresponding sections shows a substantial difference between them.
The meaning of sub-section 3 of the Pennsylvania Act of 1947 is obscure and has already caused confusion in the administration of criminal law in Pennsylvania.
Appellant contends that the Pennsylvania Act of 1947 had no place in the trial of this case because he at the trial did not attempt to establish his own good character or reputation and did not testify against a co-defendant charged
with the same offense and the proof that he committed other offenses had no relevancy as to his guilt of the crime charged. Judge McNatjgher in overruling this contention held that the phrase “degree of the offense” in the Act of 1947 meant the heinousness of the offense and that therefore the jury was justified in considering evidence of these other crimes in order to ascertain what sort of. a man the defendant was to the end that appropriate punishment might be
inflicted as between death and life imprisonment. As we have already pointed out, Judge McNaugher in admitting the record of the 15 unrelated burglaries instructed the jury that they were not to consider that evidence as in any way indicating the guilt of the accused but only in determining the proper penalty in the event the jury should find him guilty of murder in the first degree. In his charge to the jury he said as to these prior convictions: “They are in no circumstances to be considered in weighing the question of the defendant’s guilt or innocence, or the degree of the offense.”
In his opinion refusing a new trial Judge Mc-Naugher interpreted the third paragraph of the Act of 1947 as permitting “the introduction of the records of prior convictions . . . to shqw aggravation of the penalty for first degree - murder.” He said: “The language, ‘degree of the offense’ cannot and does not in the third exception (Act of 1947) refer to first or second degree murder.” In other words, the trial judge after instructing the jury as to what constituted murder in the first degree and what constituted murder in the second degree, charged the jury in effect that subsection 3 of the Act of 1947 divided murder in the first degree into two degrees for the purpose of making a difference in the penalties to be imposed, the penalty of death or the penalty of life imprisonment, depending upon the record of the defendant in respect to being a previous offender against society.
The appellant’s and Judge,McNaugher’s opposing interpretations of subsection-3 reveals how ambiguous and confusing this subsection is. Logic appears to be on the side of the appellant, who contends that evidence of other crimes cannot under subsection 3 of the Act of. 1947 be admitted unless they are relevant to the guilt of the accused, and since it is' the established law that
evidence of unrelated crimes are not admissible to prove the guilt of an accused, the admission in this case of the evidence of the unrelated crimes was in error. But the trial judge said: “The word ‘degree’ as used in the Act of 1947 means a grade of punishment”, depending upon the heinousness of the murder.
We find no justification for this interpretation either in any dictionary or in any authority or in any case. In none of the numerous opinions handed down by this Court discussing the Act of 1925 did it ever use the phrase “degree of the offense” in attempting to define the difference between those first degree murders which call for the death penalty and those which call for life imprisonment.
In all those cases the court emphasized that in fixing the penalty for first degree murder in a given case the jury was not to be influenced so much by the character of the
crime
as by the character of the
criminal
and that if his record showed that he was an habitual offender against society he would not be entitled to the comparatively merciful sentence of life imprisonment. We find nowhere in the opinions of this Court discussing the Act of 1925 any reference to the comparative heinousness of two distinct murders in the first degree.
Every
wilful and deliberate and premeditated murder is a
heinous
offense. It is with the exception of treason the highest offense known to the law, and it would be to introduce an absurd anomaly into the law to divide murder in the first degree into
first degree
first degree murder and
second degree
first degree murder. It is now sometimes difficult for juries to comprehend the difference between first degree murder and second degree murder. It would certainly add to their confusion if the court was obliged to tell the jury that after it decided the defendant guilty of murder in the first degree, it should then decide whether
that
“murder in
the first degree” was murder in the . first degree
of the first degree,
or murder in the first degree,
of the second degree
for the purpose of fixing the appropriate penalty.
There is only one crime known to Pennsylvania law in which there is any “degrees”. That crime is murder. The phrase “degree of offense” as applied to murder has a meaning which has been long established and never departed from since'murder was by statute divided into murder in the first degree and murder in the second degree (a distinction which did not exist at common law).
The difficulty which the Act of 1947 raised for the trial judge is manifest both in his charge to the jury, and in his opinion refusing a new trial. His interpretation of “degree of the offense” as used in the Act of 1947 was manifestly strained and it was forced because of the fact that the phrase “degree of the offense” as applied to murder has for a long period of time had an established meaning and it has never before been used as having any reference to the comparative heinousness of
two
“degrees” of the crime of murder in the first degree, which the court below believed subsection 3 of the Act of 1947 had created.
In order that the Act of 1947 should not be used to
prevent
the introduction of evidence of the defendant’s long criminal record (to the end that appropriate punishment could be imposed) the court was obliged to give to the phrase “degree of the offense” a
strained
construction, one that was a complete departure from the meaning long attached to a well-known technical phrase. Since murder is the
only
crime which in Pennsylvania is divided into degrees, the phrase “degree of the offense” as used in the Act of 1947 must mean the degree of the
murder
found to have been committed! To interpret the phrase the “degree of the offense” to mean the heinousness of the crime is without warrant in any statute or
in any decision of this court. It is also made in contravention of Section 33 of Article III of the Statutory Construction Act of May 28, 1937, P. L. 1019, 46 PS 533, which provides that “Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this act, shall be construed according to such peculiar and appropriate meaning or definition.” In
Smrekar v. Jones &
Laugh
lin Steel Corporation,
137 Pa. Superior Ct. 183, 8 A. 2d 461, the Superior Court said that “words having precise and well settled meaning in the jurisprudence of a country have the same sense in its statutes unless different meaning is plainly intended”.
If we construe subsection 3 of the Act of 1947 according to the above canon of construction, that Act would prohibit the introduction in the trial of a person accused of murder, of evidence of any other crime for the purpose of fixing the appropriate penalty. So interpreted the Act of May 14,1925, P. L. 759, as interpreted and applied by this Court in
Commonwealth v. Williams
and in
Commonwealth v. Parker
and in
Commonwealth v. Dague,
supra, is of negligible value, for any jury in fixing the penalty for first degree murder would not be permitted to know anything about the defendant’s criminal record. The fixing of the penalty would therefore be largely an arbitrary matter instead of being based as it should be upon a determination of the question of whether or not the defendant was a first offender or had a long record of crime.
That subsection 3 of tbe Act of 1947 is ambiguous and a prolific source of trouble in tbe administration of criminal justice is obvious. Tbe able trial judge in tbe instant case apparently found tbe Act troublesome. In tbe first degree murder case of
Commonwealth, v. Darcy,
tbis day decided by us, 362 Pa. 259, 66 A. 2d 663, tbe trial judge characterized tbe Act (of 1947) as “vague, indefinite, and uncertain” and be said that “tbe most that can be expected of decisions based on it would be a mere guess as to tbe legislative intent in tbe adoption of tbis peculiar amendment”.: His “guess” as^ to tbis subsection 3 of tbe Act was that it meant that “tbe prosecution may still introduce proof of other crimes having an independent relevancy for tbe purpose of proving that tbe defendant is guilty of tbe crime with which he is charged”. He also said: “If, as was strongly urged by tbe defendant’s counsel at tbe argument, tbe legislature, in passing tbe Act of 1947, clearly intended to bar all affirmative proof by tbe commonwealth of independent crimes or convictions, other than tbe crime for which tbe defendant is on trial, then tbe Act of 1925, as re-enacted, supra, becomes ineffectual and, since we have no statute in Pennsylvania permitting piece-meal verdicts, our juries Would be deprived of tbe evidence, so necessary, to properly fulfill their function of assessing the penalty.”
In
Commonwealth, v. Robinson,
163 Pa. Superior Ct. 16, tbe Superior Court, speaking through Judge Arnold, said: “Dean Wigmore said of it [tbe Act of 1911, P. L. 20] that Pennsylvania ‘has now permitted . . . vicious legislation to slip in and thus tenderly to make it easier
for astute defenders to juggle their clients out of legal danger.’ The amendment of 1947 is subject to even greater criticism.”
But the above do not constitute all of the ambiguous and confusing features of the Act of 1947. Subsections 1 and 2 of the Act are connected by the conjunction “or” while subsections 2 and 3 are
not
so connected. Subsection 1 and subsection 2 are obviously related, because just before the word “or” at the end of subsection 1, there is a semicolon, while at the end of subsection 2 there is a period. Since in the English Act, which the Act of 1947 resembles in its' phraseology, the three sections are all connected by the conjunction “or”, the question arises whether or not subsection 3 is to be read as a categorical imperative or whether it is to be read as subject to the restrictive conjunction “unless”
which appears at the end of section 1. It may be argued that the conjunction “or” was
inadvertently
omitted after subsection 2, but it can just as plausibly be argued. that the word “three” was inadvertently placed before subsection 3. If the last subsection is to be read as a categorical imperative it makes proof of the commission of other offenses admissible evidence of a defendant’s guilt of the crime charged against him. Under such interpretation subsection 3 would violate defendant’s right to due process of. law.
In
Miller v. Belmont P. & Rubber Co.,
268 Pa. 51, 63, 110 A. 802, this Court said in an opinion by Justice Moschzisker : “Where a statute is ‘so vague, indefinite and uncertain that the courts are unable to determine, with any reasonable degree of certainty, what the legislature intended, or is so incomplete or conflicting and inconsistent in its provisions that it cannot be executed, it will be declared inoperative’ . . .” This Court in an opinion by Mr. Justice Horace Stern reiterated that in the case of
Willcox v. Penn Mutual Life Insurance Co.,
357 Pa. 581. Because of the indefiniteness and uncertainty of the Act of 1947 we declare it inoperative.
The Act of 1947 is unconstitutional for another reason: Article III, Section 3, of the Pennsylvania Constitution provides: “No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.”
The Act of 1947 purports to be an amendment to the Act of 1911 which latter act- relates only to the cross-examination of a defendant, in criminal cases. Since the Act of 1947 applies to
all defendants in, criminal cases,
it is in effect a
new
act which should be entitled: “An act prohibiting the admission in criminal trials of a defendant’s criminal record except under certain contingencies.”
An attorney engaged to defend a person accused of crime and who did not plan to call his client to the wit
ness stand would, if lie read the title to the Act of 1947 which purports to be only an amendment to the Act of 1911, conclude that he had no occasion to examine the body of the Act of 1947.
If we add to the title of the Act of 1911 the amending part of the title to the Act of 1947, we have a complete title reading as follows: “An act regulating in criminal trials the cross-examination of a defendant when testifying in his own behalf, by further providing what evidence is or is not admissible.” This title to the Act of 1947 is clearly of a hybrid nature —the first part referring
exclusively
to the cross-examination of a defendant and the new portion referring to the “admission of evidence”. Since evidence is never “admitted” on cross-examination, the amending portion of the title is not germane to the title it purports to amend. Neither is the 1947 “amendment” to the Act of 1911 germane to the Act of 1911. An act relating to the
admission of evidence
in criminal trials is no more germane to an act relating to the
cross-examination
of a defendant than would a text-book on the
admissibility
of evidence be germane to the title, “The Limits of Cross-Examination of Defendants in Criminal Cases”. If an act had been passed in 1911 regulating the use of explosives in the
demolition
of buildings an act passed in 1947 prescribing what material could or could not be used in the
construction
of buildings would certainly not be germane to the earlier act. The “admission” of evidence refers to the admission of affirmative evidence in chief and not to what may be asked of a defendant on cross-examination. An amendment to any Act must be germane to the subject matter of the amended Act. The subject matter of the “amending” Act of 1947 is
not germane to the subject matter of the Act of 1911, which it purports to amend.
In
Dorsey’s Appeal,
72 Pa. 192 (1872), the title of an act was “An Act relating to the liens of mechanics, material-men and laborers upon leasehold estates, &c. one section extended to the liens to freeholds. The Act was held unconstitutional. In that case Justice Agnew said: “the title should be so certain as not to mislead. . . . To be ‘clearly expressed’ certainly does not mean something which is dubious, and therefore is not clearly expressed. If then the title seems to mean one thing while the enactment as clearly refers to another, it cannot be said to be clearly expressed.”
In re Road in the Borough of Phoenixville,
109 Pa. 44 (1885), this Court said: “. . . the title must not only embrace the subject of proposed legislation, but also express the same so clearly and fully as to give notice of the legislative purpose to those who may be specially interested therein. Unless it does this it is useless.”
In
Philadelphia to use of Nestor v. Spring Garden Farmers’ Market Co.,
161 Pa. 522, this Court passed upop the constitutionality of “A supplement to an act, entitled ‘An act to incorporate the Union Passenger Railway Company,’ approved April 8, 1864, authorizing said company to extend their track,” and providing also that the company “shall not be chargeable with the cost or obliged to pay the cost of paving any street which has never been previously paved.” This Court in an opinion by Justice Mitchell held that the title of the supplementary Act violated the constitutional requirement that each act shall contain but one subject, which shall be clearly expressed in the title. In his opinion Justice. Mitchell said.: “It is true that under this clause of the constitution the rule is well settled that the title need not be an index to the contents of the bill, and that, in general, entitling an act a supplement to another will be sufficient to cover any subject that is
reasonably germane to the purpose and scope of the latter. But all our cases are clear and emphatic that the title, whether full or meagre, must not be misleading.” Likewise in the instant case, when the Act of 1947 purported to amend the Act of 1911 which related solely to the cross-examination of a defendant, it “limited the notices to that particular feature” of the Act of 1911 and for that reason it was not only defective, but misleading, and should be stricken down as unconstitutional. See also
Beckert et al. v. City of Allegheny et al.,
85 Pa. 191 (1877).
In
Commonwealth v.
Kebort, 212 Pa. 289 (1905), 61 A. 895, this Court held that the Act of June 26, 1895, P. L. 317, entitled “An act to provide against the adulteration of food, and providing for the enforcement thereof,” was unconstitutional in so far as it related to drink. In the body of the law was a clause defining “food” to include all articles used for drink. It was here said that the usual meaning of food does not include drink, and that if the word was so used in the title there should have been some plain indication of the sense in which the term was employed. The purpose of the constitutional provision was to require that the title should inform legislators and others of the contents of the law, therefore the words used in the title must be understood in their common signification, and if any other meaning is to be given them by a definition adopted by the Legislature, there must be some indication of this in the title.
The title of the Act of 1947 is defective for still another reason. If we adhere to the canons of judicial construction the Act of 1947 must be interpreted as prohibiting the introduction of evidence of other crimes for the purpose of fixing the penalty to be imposed in cases of first degree murder. Section 3 of that Act bars evidence of the commission of other crimes except when that evidence is independently relevant to prove defénd
ant’s guilt of the crime charged or “the degree of the offense”, i. e. the degree of murder. Under this interpretation, the law established by this Court in interpreting the Act of 1925, supra, giving juries the right to fix the penalty in first degree murder cases, is super-, seded and evidence of such unrelated crimes for the purpose of fixing the punishment is prohibited. Surely, an act which makes such a radical departure from law established for nearly a quarter of a century should
by its title
give notice of its purpose to make such a departure. There is nothing in the title which indicates any such purpose.
Because the Act of 1947 is vague, indefinite and uncertain and because its title is defective we adjudge it to be unconstitutional and void. :
In the case now before us the trial judge admitted the evidence -as to the commission of other unrelated crimes by the defendant exactly the same as he would have done if there had been no Act of 1947. He admitted it for the purpose of enabling the jury to determine the appropriate penalty to be imposed upon the defendant in the event that he was. convicted of murder in the first degree. Since the Act of 1947 was unconstitutional and therefore inoperative the trial:judge was within his rights in admitting, this evidence of other crimes committed by the defendant for the purpose specified.
A few weeks after tlie argument on the appeal the defendant filed an additional assignment of error in which he contended that thé trial judge committed error in saying to the jury: “The Commonwéalth particularly asks you in this case to convict the defendant of murder in the first degree because it asserts that the facts show that, as provided by the statute; murder was perpetrated in the commission of the crime of burglary. As to burglary, it is provided by statute that ‘Whoever at any time wilfully and maliciously enters any building with intent to commit any felony therein is guilty of burglary.’ ... As burglary is a crime that might readily lead to the taking of human life, the law provides that a murder committed in the perpetration of or in the attempt to perpetrate it shall be deemed of the first degree.” :
The defendant himself admitted the fact that at the time he was apprehended by the officer later slain he was actually committing what is common law burglary.
Therefore, no prejudicial error can be predicated on the excerpt complained of.
The other assignments of error do not require discussion. They are overruled.
The judgment is affirmed and the record is remitted to the court below so that' the sentence imposed may be executed. •