The only question in this case is whether Justice Allen had authority to preside in the court of oyer and terminer at which the plaintiff in error was convicted. His authority was denied, upon the ground that he had been selected under the constitution and laws to be a judge of the court of appeals during the year in which the prisoner was convicted, and that by such selection his authority to act in the judicial capacity of presiding judge in the oyer and terminer was suspended. The decision of this question depends entirely upon the terms of the constitution.
Section 2 of art. 6, declares "there shall be a court of appeals, composed of eight judges, of whom four shall be elected by the electors of the state for eight years, and four selected from the class of justices of the supreme court having the shortest time to serve," and that "provision shall be made by law for selecting such justices of the supreme court from time to time." The 4th section of the same article fixes the number of the justices of the supreme court, but does not point out their duties. The 6th section is as follows: "Provision may be made by law for designating, from time to time, one or more of the said justices who is not a judge of the court of appeals, to preside at the general terms of the said court, to be held in the several districts. Any three or more of the said justices, of whom one of the said justices so designated shall always be one, may hold such general terms; and any one or more of the justices may hold special terms and circuit courts, and any one of them may preside in courts of oyer and terminer in any county." In the first sentence of the section, the whole body of justices of the supreme court, as well those selected to be judges of the court of appeals as the others, are included under the term, "the said justices;" for from that body, one or more, who is not a judge of the court of appeals, may be designated to preside at general terms. The expression in this sentence, therefore, does not furnish any ground upon which we can limit the generality of the authority to *Page 76 preside in courts of oyer and terminer, conferred by the last sentence in the section. Any one of the justices may preside in courts of oyer and terminer, is the language of the constitution. It includes every justice of the supreme court; and we have no authority to deny to the language used, its obvious meaning.
The judgment should therefore be affirmed.