The herald., 1896-02-15

support a judgment of conviction; and the
reason 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 transac-
ton. But when we come to consider clause
=, 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 boarding 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 robbug that
the act was primarily aimed to prevent.
If the law making power should declare
that every person who unlawfuliy removes
rail from railroad track. or burns a rail-
road bridge, or places dynamite upon the
track, or turns a switch, or forces the en-
ployeS of the train to leave their post of
duty, or kills thu engineer, or gags and
binds the conductor of the train, shalt be
gGilty of felony known as train wrecking,
we are clear that one or two of all these
acts, if direc;ed toward the same train,an
in the same transaction, could be, and if
the facts shown justified it, should be,
charged in one Information as one o1fense.
1t should be so charged, for such form of
information would thus limit the rascal's
opportunity of escape from the clutches of
the law to the smallest possible compass.
As supporting generally the information
here under consideration. against the
charge of duplicity, we cite Hnkle vs.. Com
monwealth, Ny. 5l9. Defendant was
there charged under statute with having
"set up and kept a gaming table and in
duced others to bet at it." The court said: /:
"Although the setting up of a gaming
IA ind oh off
the keeping of such table and the inducing
of any person to bet upon it, another, when
each shall have been committed by differ
ent persons or at different times; never
theless, as they are cooperative acts, con-
stitutlng altogether one offense when COM
mitted by the same person and 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 pun
ishment can be inflicted for one offense."
In Commonwealth VS.. Miller, 10Y Pa.
st. 2I6, an indictment was sustained
charging forcible entry and detaiEe-. In
State vs.. Murphy, AZ Mo. 214, an inGict-
ment was sustained charging 1.-THE keeping
open tipping shop and grocery, and SELL
ing to divers persons intoxicating liquors
on the first day of the week." The court
said: "Wben statute in one clause for
bids several things, or, creates several
offenses in the alternative not repugnant
treated in pleadings as though it created
but one offense; and they all may be united
conjunctvely in one count, and the count
is sustained by proof OF one of the ofenses
charged
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 I'M
lawful acts charged against defendant
were directed. But we think such fact
fairly inferable from the pleading. and
the entire record indicates the case o have
been tried upon such assumption. The fur
ther point is made that there can be no such
thing as robbing passenger train, and that
the statute in that regard is meaningless.
"Robbing a store," "robbing a safe" and
''robbing 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
But aside from this the trial
court told the jury what constituted rob-
bling train, and no complaint is here
made that such instructions as to the law
was not sound.
Justice Temple, in concluding dissent
ing opinion on the points raised, says:
"How can this court affirm the judg-
ment to such an appeal without determin-
ing what robbng passenger train means,
and that it means just what the trial court
said it did,"