Thompson

The defendant was convicted upon a charge of derailing a railroad train, and unlawfully boarding a train with intent to rob the same. This appeal is from an order refusing a new trial, and the only points made are that the court erred in giving certain instructions.

An appeal from the judgment was separately taken, and there being no bill of ..exceptions to be settled—as the points arose upon the demurrer—that appeal reached here first, and was long since decided. (People v. Thompson, 111 Cal. 242 .)

On the former appeal from the judgment no points were made with reference to the instructions, and, as there was no bill of exceptions, such points could not have been presented to the best advantage. Still, the defendant might have had a bill of exceptions on the appeal from the judgment, in which so much of the evidence as was necessary to illustrate his points could have been set out.

The code expressly provides (Pen. Code, sec. 1176) that the instructions given or refused, whether in writing or taken down by the reporter, with the indorsements thereon (showing whether given or not) constitute a part of the record, and the rulings may be reviewed on appeal as though embodied in…

On the appeal from the judgment against the defendant (People v. Thompson, 111 Cal. 242 ), the instructions to the jury were not considered or passed upon by this court. The sufficiency of the information, as tested by the demurrer, was the only matter of law then considered or determined. In the prevailing opinion it was said: “ 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”; and Mr. Justice Henshaw said, in his dissenting opinion: “ This hearing is on demurrer only.” It follows that only the propositions of law presented by the demurrer and then determined fall within the rules governing the “ law of the case.” These rules rest upon the principles of an estoppel, and it is evident tliat, as the action of the trial court which is now under review was had anterior to the decision of this court upon the appeal from the judgment, none of the elements of an estoppel can be invoked for the purpose of preventing a review of its action. The “ law of the case” is properly invoked when upon a former appeal, in the same action, this court has declared the…

I concur in the judgment, and generally, in the opinion of Justice Temple, but I think a word should be added with reference to the novel practice pursued in this case, of bringing up the appeals from the judgment and from the order denying a new trial separately, and upon different records.

This case fully illustrates the proposition that such practice is productive of delay and unnecessary expense, and that it is as inconvenient as it is unusual. For the purpose of preventing such proceedings in the future, I would suggest that this may easily be done by following the directions contained in section 1246 of the Penal Code, which impose upon the county clerk the duty of printing and transmitting the record in criminal cases. The Penal Code, sections 1170-73, provides for various bills of exceptions to be settled before, during, and after the trial, all or any of which may be used in support of an appeal from the judgment, but “the bill of exceptions” especially referred to in section 1246 is that provided for in section 1171, viz., the bill of the exceptions taken at the trial, and which must be presented for settlement within ten days after the judgment.

If no such bill of…