The herald., 1896-02-15
IN INTERESTING DECISION
The Supreme Court on Kid
Thompson's Case
IS A LEARNED ANALYSIS
Three Justices Dissent From the Opinion
Of Justice Garoutte
The Governor Will Not Take the Respon sbility
Of Naming TIL. Day for TIN om 2s on's
Executioa-The Opinion


There Is question as to whether or no.
Kid Thompson, the murderer ana train
wrecker, will ever So to the gallows. The
opinion of the supreme court affirming the
judgment of the superior court of this
county was received here yesterday. The
opinion is written by Justice Garoutte,
Justice Van Fleet, Mcfarland and Harri.
son concurring.
But there is a dissenting opinion by JUS
tice Temple and Justice Henshaw, in whic b
Justice Beatty concurs.
Under these circumstances it is doubtful
whether or not Governor Budd will ever fix
day for Thompson's execution. The ST.
preme court will probably grant rehear.
ing.
The opinion Of Justice Garoutte is as fol-
lows:
few years past the legislature enacted
what is properly known as the Francis
wrecking act, and it provides:
"Every person who shall unlawfully
throw out a switch, remove rail or place
any obstruction on any railroad in the state
of California, with the intention of derail-
ing any passenger train with the intention
OF robbing the same; or who shall uniaw-
fully place any dynamite or other explosive
material or any other obstruction on the
track of any railroad in the state of Cali
fornia. 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 trestie over which
any passenger, freight or other train must
pass, with the intent of wreckng said
train, upon conviction shall be adjudged
guilty of felony, and shall be prosecuted
with death or imprisonment in the state
prison for life, at the option of the jury try
ing his case"
Defendant Thompson was charged and
convicted OF violating certain provisions of
this act and sentenced to be hung He now
brings his appeal from the judgment rem
dered against him. A demurrer to the in
formation was overruled, and the revisal or
ahrmance of this judgment is dependent
upon the legal soundness of the action of
the trial court in that behalf. The materi-
al part of the information charged: "The
said Kid Thompson, on the 25th day of
February, A. ID. S94, at the county and
state aforesaid, did wilfully, unlawfully
and feioniously throw out a switch at Ros-
coe Station, on the railroad known as the
Southern Pacific railroad, with intent to
thus and there derail a passenger train,
and did then and there willfully ,uniawfully
and feloniously board passenger train on
said railroad at said station, with intent
then and there to rob said passenger
train"
1t is nav insisted that the information
charges two offenses, and that such dupli-
cation compels revisal of the judgment.
The question presented for solution is not
an easy one, and we will at the outset enter
into somewhat detailed analysis of the
act here involved. The act is not well
drawn. Upon the contrary, it is crude
entirely too crude to leave the hands of
slider the Importance of the legislation
with which that body was then dealing
We cite single instance in illustration of
these remarks, and then leave the act with
the present code commissioner, as fur
nished ample material for substantial re-
construction. One clause provides that
any person is guilty ''who shall unlawfully
board any passenger train with the inten-
ton OF robbing the same" The meaning
OF the phrase. ''unlawfully board any pas
senger train" by reason of its Indefinite
ness and uncertainty, but serves the pur-
pose of giving work to the lawyers and
worry to the courts; but the last part of
the clause, to wit, with the intention of
robblng the same" passenger train, is
worse than the first. As to what is meant
by robbing passenger train, we will not
now indulge in surmise.
the times, and was created for
the purpose of stopping train wreck
ing and Furnishing train wreck
ers. The act SO declares its purpose in
term. and aside from one clause thereof,
such purpose is patent upon the most
casual inspection of it's provisions. 1t
covers four distinct and separate branches
of the subject, to-wit:
l. Every person who shall unlawfully
throw out 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 pas
senger train with the intention of robbing
the same.
g.. Who shall unlawfully place any dy.
namlte 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 anv
passenger, freight or other train must
pass, with the intent Of wrecking said
train.
The whole tenor and purpose of the ar.
is directed against train wrecking, and this
is true as to subdivision two 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 inciden. !
eoiiy iHNONeo duu tue prevention or the /
of the train, and the consequent /
and natural results following, of injury |
and death to the passengers, is it's prime |
purpose. Whatever else the clause means, |
II imports acts of violence upon the train. |
It imports to more or less degree the sub
lection of the employees to the robbers. the |
menace and duress of the employees, loss |
Of control OF the train by them, tight upor, |
their part. and even death. These things !
being SO, the probabilities of destruction |
10 train and passengers follow as necessar-
lily as such probabilities would follow from |
the misplacing of switch, or the removal |
Of u rail. Hence,we say that every part and |
clause of the act is directed toward the |
of train wrecking.
Does the information charge two Of !
lenses? In other words. may the prose-
,ution charge the defendant with the four
distinct acts, to-wit: throwing out switch |
with the intention of deraling a passen-
yer train; unlawfully boarding the said pas
senger train With the intention of robbing
he same; placing dynamite upon the |
rack with the intention of blowing up the |
,aid train. and setting fire to bridge over
which said train must pass, with the intent |
II wrecking said train. In the present
,ase the defendant is charged with but two
It these acts, and it naturally and ortli-
narily follows in statutes similar to this
1ne that, ii more than one of the acts NAV
- charged, all or any number less than all |
nay be charged. We think this informA-
iOn is not susceptible to the charge of
Implicitly
This principle of law is universally rec.
>unize6 a sound. and tho applioa t;or -