Thompson

A few years past the legislature enacted what is popularly known as the train-wrecking act. It is entitled, an act to add a new section to the Penal Code of the state of California, “tó be known as section 218, relating to train wrecking and the punishment thereof,” and the act provides:

Defendant Thompson was charged by information and convicted of violating certain provisions of this act, and sentenced to be hanged. He now brings this appeal from the judgment rendered against him. A demurrer to the information was overruled, and the reversal or affirmance of this judgment is dependent upon the legal soundness of the action of the trial court in that behalf. The *245 material part of the information charged: “The said Kid Thompson, on the fifteenth day of February, A. n. 1894, at the county and state aforesaid, did willfully, unlawfully, and feloniously throw out a switch, at Roscoe station, on the railroad known as the Southern Pacific Railroad, with intent then and there to derail a passenger train; and did then and there willfully, unlawfully, and feloniously board a passenger train on said railroad, at said station, with intent then and there to rob said passenger…

I dissent from the conclusion reached by the court in this case.

The charging part of the information is that defendant “ did willfully, unlawfully and feloniously throw out a switch at Roscoe station „ „ „ , with intent then and there to derail a passenger train, and did then and there willfully, unlawfully, and feloniously board a passenger train on said railroad at said station with intent then and there to rob said passenger train.”

Defendant demurred on several grounds, one of which •was that the information charges more than one offense, to wit: Throwing out a switch with intent to derail a passenger train; and 2. Boarding a passenger train with intent to rob the'same.

Both these acts are charged in the information, and except by the use of the words “then and there” it is not shown that the two acts have any reference to each other. It does not appear that any train was derailed, or, that if so, it was derailed that defendant might board it, nor that he boarded it that he might derail it; nor is it charged that the acts were in pursuance of a common intent—as to wreck the train. In fact it does not appear that he boarded the same train that he attempted to derail. In no…

I concur in the dissenting opinion of Mr. Justice Temple.

To what he has said it may be added that there is involved in this dissent no doubt of the power of the legislature to pass the statute under review, nor any doubt of the validity of the statute as a penal law.

The legislature might by a single enactment provide, for example, that every person who commits a murder, every person who commits treason against the state, every person who bears false witness against another by means of 'which that other loses his life, upon conviction shall be adjudged guilty of felony and shall be punished with death. Such a law would violate no rule applicable to the enactment or interpretation of penal statutes. These offenses are all now punishable by death; yet would anyone assert that under a system of criminal pleading such as ours, which commands that the indictment shall charge but one offense, these acts a or any two of them might be charged in one indictment? With deference to the reasoning of the prevailing opinion I think until it became the law of the state he would have been deemed a rash advocate who would have dared so to argue»

*256 And the reason is not far to seek. Such a…