The herald., 1896-12-04
kid" THOMPsON'S LUCK
Three Concurring Opinions Of the Su-
preme Court

The decision of the supreme court in
the case of kid" Thompson came to
hand yesterday. The defendant was
convicted upon a charge of derailing a
train with intent to rob it. The appeal
was taken from an order refusing new
trial. and the only point made was that
the court erred in giving instructions.
An appeal from the judgment was sepa-
rately taken, and there being no bill OF
exceptions to be settled, that appeal
reached the supreme court first and was
long since decided
The act under which the prosecution
was had was an act adding one sectlon
to the penal code. This act arose from
the necessity of the times. and was Gre
ated for the purpose of stopping train
wrecking and furnishing train wreckers.
The evidence discloses without conflict
that the defendant did not board or at
tempt to board the train till after ii hai
been wrecked. At that time the train
was not an operating one and could not
have been wrecked Therefore. when
the defendant boarded the train with
intent to rob tiff he can be said to have
done so--the act could not by any possi-
bility have contributed towards wreck
ing the train.
This" says the court. would not
necessarily have prevented the convic-
tion of the defendant He could still
have been convicted and punished for
throwing out a switch for the purpose =
wrecking the train. The evidence was
sufficient to sustain a conviction upon
that ground. But unfortunately the
jury was instructed by the court as fol-
lows:
IF the jury believes from the evil
dence that the defendant, w. Fl. Thomp-
son, with Alva Johnson. at the county of
I In, ba -fo 10 nf ro1i 10
on the 18th day of February 1894 bccrd-
ed an express car in passenger train, on
the Southern Pacific railroad at Ros
coe Station. in said county, and by force
and violence, or by putting in fear of
some injury to the person of the messen-
ger in charge of said car did rob, steal
and carry away any money of any value
then in the custody or under the care
or in the control of said messenger. then
the jury should find the defendant
guilty"
Under the opinion rendered upon
former appeal boarding train under
such circumstances as the evidence in
this case tends to prove could not con-
stltute the crime of train wrecking. The
jury were told that they must convict
the defendant of the offense of train
wrecking if they found that he boarded
an express car. which. without conflict.
the evidence shows was rot there, when
it. part Of train which could have
been operated or wrecked and by put
ting in fear the messenger in charge of
the car-not of the train--did rob or
steal anything OF value in the custody of
the messenger.
Other Instructions of the court are
analy2ed and held to have been erron-
eous, and for these reasons the judg-
ment is reversed and new trial or
dered
The opinion is written by Justice Tenn
pie concurred in by Henshaw and dis
sented from by Mcfarland. Chief Jus
tice Beatty and Justice Harrison each
shave written concurrent opinions.
The former makes reference to
the novel practice pursued in
TINS case of bringin up the ap-
peals from the Judgment and
from the order denying a new trial sep
arately and upon sufficient records.
Ihls case says the chief justice, fully
illustrates the proposition that such
practice is productive of delay and un-
necessary expense, and that it is as in
convenient as it is unusual. For the
purpose OF preventing such proceedings
in the future | would suggest that this
may easily he done by following the oil
rections contained in Section 1913 OF the
Fenal Code, which impose upon the coun-
ty clerk the duty of printing and trans
nitting the record in criminal cases.
justice Harrison in his opinion de-
votes II entirely to an examination CT
the third instruction given in the lowe-
court relating to the throwing of the
switch. etc. Justice Harrison draws AZ
tention to the fact that the instruction
assumes that there was evidence that
Johnson threw out the switch. and thar
the defendant was merely present. aid
ing, abettng and counseling him in the
preparation of the offence, whereas.
the only evidence in reference thereto
was tnat or johnson himself. who tes-
tined that the switch was thrown out
by the defendant. While this portion Of
the instruction could not, however. have
preJudiced the defendant the latter nor
ton was clearly so. in presenting to the
jury the fact that Masters was killed
and thus directly charged him with hom-
| icide. No charge of this nature was
| made in the information.