Lovren

The defendant has been convicted of violating an act of the legislature commonly known as the "train wrecking act.” He was charged by the information with unlawfully boarding a certain passenger train with intent to rob said train.

It is claimed that the act is unconstitutional in this, that it violates that provision of the constitution which declares that every act of the legislature shall embrace but one subject, which subject shall be expressed in its title. By its title this act is designated as an act "relating to train wrecking”; and in the body of the act we find the provision which declares a party to be guilty who unlawfully boards a passenger train with intent to rob the same. The defendant is here charged with violating this particular provision of the act, and it is now claimed that such provision bears upon train robbery, and not train wrecking, *90 and for that reason is objectionable to that portion of the constitution to which reference has been made. The contention has no force. This court has held that every provision of the act directly applies to train wrecking, and that the provision quoted does not apply to train robbery. Indeed, robbery.of a train is not…

I dissent from the order denying a rehearing of this case, because I think the superior court erred in a manner extremely prejudicial to the defendant in admitting over his objection hearsay evidence tending to connect him with the conspiracy. The evidence of Britt and Haynes clearly established the fact that they had entered into a conspiracy with McCall to commit the robbery. Haynes alone gave direct evidence that the defendant had afterward acceded to the conspiracy. But he and Britt were both allowed, against the objection that it was hearsay, to testify to declarations of McCall to the effect that Lovren was aiding and assisting them. The evidence was clearly incompetent. The declarations of a conspirator that someone else is also a conspirator do not come within the rule that one conspirator is bound by acts and declarations of his co-conspirator in furtherance of the objects of the conspiracy. The. fact that one is a conspirator must be proved by competent evidence; and hearsay declarations of others are not competent evidence.