People v. Thompson

43 P. 748, 111 Cal. 242, 1896 Cal. LEXIS 571

• Court: California Supreme Court
• Decided: February 10, 1896
• Docket: Crim. No. 72
• Status: Published

Opinions

Garoutte, J.

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:

“Every person who shall unlawfully throw out a switch, remove a rail, or place any obstruction on any railroad in the state of California, with the intention of derailing any passenger, freight, or other train; or who shall unlawfully board any passenger train with the intention of robbing the same; or who shall unlawfully place any dynamite or other explosive material, or any other obstruction, on the track of any railroad in the state of California with the intention of blowing up or derailing any passenger, freight, or other train; or who shall unlawfully set fire to any railroad bridge or trestle, over which any passenger, freight, -or other train must pass, with the intent of wrecking said train, upon conviction shall be adjudged guilty of felony, and shall be punished with death or imprisonment in the state prison for life, at the option of the jury trying the case.”

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 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 train.”

It is now insisted that the information charges two offenses, and that such duplicity compels a reversal of the judgment. The question presented for solution is not an easy one, and we will at the outset enter into a somewhat detailed analysis of the act here involved. Tho act is not well drawn. Upon the contrary, it is crude—entirely too crude to leave the hands of a state legislature, especially when we consider the importance of the legislation with which that body was then dealing. We cite a single instance in illustration of these remarks, and then leave the act with the present code commission, as furnishing ample material for substantial reconstruction. One clause provides that any person is guilty “ who shall unlawfully board any passenger train with the intention of robbing the same.” The meaning of the phrase “unlawfully board any passenger train,” by reason of its indefiniteness and uncertainty, but serves the purpose of giving work to the lawyers and worry to. the courts; but the last part of the clause, to wit: “ with the intention of robbing the same” (passenger train), is worse than the first. As to what is meant by robbing a passenger train, we will not now indulge in surmise.

This act arose from the necessity of the times, and was created for the purpose of stopping train wrecking and punishing train wreckers. The act so declares its purpose in terms, and, aside from one clause thereof, such purpose is patent upon the most casual inspection of its provisions. It covers four distinct and separate branches of the subject, to wit: 1. Every person who shall unlawfully throw out a switch, remove a rail, or place any obstruction on any railroad in the state of California, with the intention of derailing any passenger, freight, or other train; 2. Who shall unlawfully board any passenger train with the intention of robbing the same; 3. Who shall unlawfully place any dynamite or other explosive material, or other obstruction, on the track of-any railroad in the state of California, with the intention of blowing up or derailing any passenger, freight, or other train; 4. Who shall unlawfully set fire to any railroad bridge or trestle, over which any passenger, freight, or other train must pass, with the intent of wrecking said train.

The whole tenor and purpose of the act is directed against train wrecking, and this is true as to subdivision 2 equally with all- other subdivisions. At first glance that clause would seem to be directed toward the suppression of the crime of robbery, but the offense of robbery is only incidentally involved, and the prevention of the wrecking of the train, and the consequent and natural results following, of injury and death to the passengers, is its prime purpose. Whatever else the clause means, it imports acts of violence upon' the train. It imports to a more or less degree the subjection of the employees to the robbers, the menace and duress of the employees, a loss of control of the train by them, fright upon their part, and even death. These things being so, the probabilities of destruction to the train and passengers follow nearly as necessarily as such probabilities would follow from the misplacing of a switch or the removal of a rail. Hence we say that every part and clause of the act is directed toward the suppression of train wrecking.

Does the information charge two offenses? In other words, may the prosecution charge the defendant with the four distinct acts, to wit: Throwing out a switch, with the intention of derailing a passenger train; unlawfully boarding the said passenger train, with the in* tention of robbing the same; placing dynamite upon the track, with the intention of blowing up the said train; and setting fire to a bridge over which said train must pass, with the intent of wrecking said train. In the present case the defendant is charged with but two of these acts, and it naturally and ordinarily follows in statutes similar to this one that, if more than one of the acts may be charged, all or any number less than all may be charged.

We think this information is not susceptible to the charge of duplicity, and base our conclusion upon the general principle declared in Bishop’s New Criminal Procedure, section 436: “A statute often makes punishable the doing of one thing, or another, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a p u’son who in one transaction does all violates the statute but once and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore, the indictment on such a statute may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has ‘ or,’ and it will not be double, and it will be established at the trial by proof of any one of them.” This principle of law is universally recognized as sound, and the application of it to the facts of this case presents the only point of difficulty. If persons, for the purpose of wrecking a certain passenger train, should: 1. Throw out a switch; 2. Place dynamite upon the track; 3. Burn a bridge over which the train would pass—it wmuld not be an open question but that those acts could be properly charged in one information, and the proof of any of them support a judgment of conviction; and the reasons why the legal soundness of such a pleading is so apparent would be because the three acts charged were forbidden by the same provision of law, because they were all directed toward one certain passenger train, and because all were done for the purpose of wrecking that train, and thus done as part of one and the same transaction. But when we come to consider clause No. 2, as to boarding a passenger train with the intention of robbing the same, we meet with more difficulty, for there the intention with which the act of hoarding is done is to rob, and not to wreck. Yet, as we have already said, the intention of robbery carries with it the probable result of wrecking, and it was the wrecking and not the robbing that the act was primarily aimed to prevent. If the act had said boarding the train with the intention of wrecking it, instead of boarding it with the intention of robbing it, the entire act would have been in perfect harmony, and clearly the four specific acts could have been joined in the one charge as one offense. And we think that the mere fact that the boarding of the train is done with the specific intent of robbery, a different intent from that accompanying the other acts specified, is not sufficient to take it out of the rule we have quoted from Mr. Bishop. We hold it is not necessary that the acts coupled together should all be required by the statute to be done with the same intent, before they may he joined as one offense. This act is essentially one to prevent train wrecking. The law-making power concluded that certain acts, done with certain intents, would result in the wrecking of trains. That body in effect created a new crime known as train wrecking, and declared it a felony. While in terms it did not give such name to these acts, yet the statute taken altogether fully supports that construction; and if such be its construction we think but one result can follow, and that is the validity of the information here involved.

If the law-making power should declare that every person who unlawfully removes a rail from a railroad track, or burns a railroad bridge, or places dynamite upon the track, or turns a switch, or forces the employees of the train to leave their posts of duty, or kills the engineer, or gags and binds the conductor of the train, shall be guilty of a felony known as train wrecking, "we are clear that one or two or all of these acts, if directed toward the same train and in the same transaction, could he, and, if the facts shown justified it, should be, charged in one information as one offense. It should he so charged, for such form of information would thus limit the rascal’s opportunity of escajDe from the clutches of the law to the smallest possible compass.

In the foregoing illustration we have a series of acts prohibited, without mention by the statute of any specific intent in the doing of any of them; yet, if committed, they would constitute a felony. It is thus observable from what we have said that a series of prohibited acts maybe joined together and charged as one offense, where the statute fixes the same specific intent in the doing or all of them; and, further, that they may he joined when the statute specifies no specific intent for the doing of any of them. And there is no reason in principle why the rule should be different when some of the acts prohibited by the statute must be done with a certain specific intent, and the others with no specific intent; or where some of the acts must be done with a certain specific intent, and others with a different specific intent. The question of intent with which the prohibited acts are done does not furnish tbe test by which the charge of duplicity in pleading is determined. We think that the boarding of the train, if done with a different intent from the act of burning the bridge or removing a rail, does not prevent the application of the principle laid down by Mr. Bishop. The specific intent or intention mentioned in the statute is an essential and material part of the felony. It is but a part of the description of the offense. It is just as essential to make out the felony as the doing of the abstract act, and the act and intention must be joined, or there is no offense. Hence it follows that the acts of themselves may be perfectly harmless, or they may constitute other offenses, but they are only enjoined by.this statute when coupled with certain specific intents. As illustrative of this matter of intention: In Angel v. Commonwealth, 1 Va. Cas. 231, defendant was charged under a statute with unlawfully shooting, “ with the intention to maim, disfigure, disable, and kill,” and a conviction was sustained.

As supporting generally the information here under consideration against the charge of duplicity, we cite Hinkle v. Commonwealth, 4 Dana, 519. Defendant was there charged under a statute with having “set up and kept a gaming table and induced others to bet at it.” The court said: “Although the setting up of a gaming table may alone be an indictable offense, the keeping of such table and the inducing of any person to bet upon it, another, when each shall have been committed by different persons or at different times; nevertheless, as they are co-operative acts, constituting altogether one offense when committed by the same person at the same time, an indictment for that combined act in violation of law may properly charge the whole in one count, and but one punishment can be inflicted as for one offense.” In Commomvealth v. Miller, 107 Pa. St. 276, an indictment was sustained charging a forcible entry and detainer. In State v. Murphy, 47 Mo. 274, an indictment was sustained charging “ the keeping open a tippling shop and grocery, and selling to divers persons intoxicating liquors on the first day of the week.” The court said: “ When the statute in one clause forbids several things, or creates several offenses in the alternative, which are not repugnant in their nature or penalty, the clause is treated in pleadings as though it created but one offense; and they may all be united conjunctively in one count, and the count is sustained by proof of one of the offenses charged.” In State v. Cooster, 10 Iowa, 454, an indictment was sustained charging the defendant with keeping a gambling house, and permitting other persons in a place under the control of defendant to play for money and other things. The court said: “The objection has its origin in the idea that there is such a difference in the essential qualities of these, two acts as to make, them separate offenses. But is this true? They are found in the disjunctive clause of the same section of the code, visited with the same penalty, and it is the better opinion that in their essence they are one and the same offense, the guilt of which may be incurred in one or the other of these methods.” In State v. Nelson, 29 Me. 329, an indictment was sustained charging defendant “ with buying, receiving, and aiding in concealing stolen goods, knowing the same to have been stolen.” To the same effect is Stevens v. Commonwealth, 6 Met. 241, where the court said: “ There is but one count in which the defendant is charged, and there is but one offense with which he is charged. It is made but one offense by the statute, although according to the language used it may be committed in one of three modes; that is, by buying, receiving, or aiding in the concealment of stolen goods. Whether charged to be done in one, two, or all three of the modes mentioned, it is still but one offense, and the general finding of the jury is that the offense was committed as charged.” In Wingard v. State, 13 Ga. 396, an indictment was sustained charging that certain defendants “ did play and bet with cards for money at a game of poker, whist, faro, seven-up, three-up and other games played with cards." It will be noticed that in the cases we have cited the various acts are charged in one and the same count of the indictment.

The authorities of our own state go to the full lengths of those cited from sister states. In People v. De La, Guerra, 31 Cal. 459, a case involving a statute which declared it a felony for certain county officers to issue, have in their possession with intent to circulate, or put in circulation certain licenses, it was charged that the defendant had in his possession, with intent to circulate, and did actually put in circulation, one of these licenses. The court upheld the indictment against the charge of duplicity, and reversed the judgment. Here one of the acts was done with a certain specific intent, and the other was done without any specific intent whatever. Various violations of the gaming statute may be charged in one indictment. (People v. Gosset, 93 Cal. 641.) It is conceded that under the act declaring who are vagrants, and prescribing the punishment therefor, the entire series of acts there laid down may be charged in one complaint. (Ex parte McCarthy, 72 Cal. 384.) This is so though the act mentions no such offense as vagrancy; and it might be suggested that in nearly all of the statutes from which we have quoted, like the case at bar, the offense is given no technical name. In People v. Frank, 28 Cal 513, the defendant was charged with falsely making a draft, and also with passing the draft knowing it to be forged, and the indictment was sustained. Such an indictment would be good, even though the false making was done upon one day and the passing was done months subsequent thereto; and even though the false making was done with intent to defraud A, and the passing was done with intent to defraud B, (People v. Harrold, 84 Cal. 567.)

The information in this case is clumsily drawn in this, that it is not directly and specifically shown that it was the same passenger train toward which the two unlawful acts charged against defendant were directed. But we think such fact fairly inferable from the pleading, and the entire record indicates the case to have been tried upon such assumption. Indeed, appellant’s counsel make no point that the information is defective in this respect. The further point is made that there can be no such thing as robbing a passenger train, and that the statute in that regard is meaningless. “ Robbing a store,” “ robbing a safe,” and “ robbing a train ” are every-day, ordinary, and common expressions. Very possibly it is in this sense that the legislature used the verb “ rob ” and not in connection with the technical meaning of the offense of robbery. But aside from this the trial court told the jury wdiat constituted robbing a train, and no complaint is here made that such instruction as to the law was not sound.

For the foregoing reasons the judgment is affirmed.

McFarland, J., Van Fleet, J.a and Harrison, J., concurred.