The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-02-11
THE TRAIN-ROBBERS' ACT
1t Is Found to Be Good Law
But Very Clumsily
dawn.
AFFIRM THoMPS0Ns SENTENCE
Four Judges Upheld the Law and
Three Opposed 1t, With Two
Dissenting Opinions.
AFFIRM THoMPsoNs SENTENCE

without bit to spare. Four Judges think
it isa good law, albeit clumslly and care
tessly drawn, and three Judges dissented
so violently that two of them wrote dis
senting opinions.
The case came before the court on an
appeal from the judgment Of death passed
upon w. II. Thompson, or kid" Thomp-
son, for robbing a train at Roscoe station
in February, 1894. The information
charged that ''The said Kid Thomson
on the 18th day of February, A. D., 1891.
at the county and State aforesaid, did will
fully, unlawfully and feloniousiy throw
out switch at Roscoe station. on the rail-
road known as the Southern Pacific Rail-
road, with intent there and then to derail
passenger train; and did then and there
willfully and uniawfully and feloniously
board passenger train on said railroad.
at said station. with intent then and there
to rob said passenger train.''
The law under which he was convicted
reads as follows:
Every person who shall unlawfully throw
out switch, remove q rail or place any oh
strucuon on any railroad in the State of Cali
fornla with the Intention of derailing any pas
senger, freight or other train; or who shall I'M
lawfully board any passenger train with the
intention of robbing the same; or who shall
unlawfully place any dynamite or other ex-
ploslve material, or any other obstruction, on
any railroad in the State of California, with
the intention OF blowing up or derailing any
passenger, freight or other train: or who shall
unlawtully set fire to any 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 a felony. and shall be punished with
death or by imprisonment in the State prison
Tor lie, at the option OF the jury trying the case
Thompson was charged with willfully
and unlawfully throwing out a switch at
Roscoe station on the Southern Pacific
railroad with the intent to derail pas
senger train, and also with boarding pas
senger train with the intent to rob it. 1t
was pleaded that the information charged
MIN with two separate offcnses, and that
his conviction upon it was unwarranted
and unlawful, but the Supreme Court.
quoting from Bishops New Criminal
Procedure, says:
A statute often makes punishable the
doing OF one thing or another sometimes
thus specifying considerable number OF
things Then by proper and ordinary construc-
ton person who in one transaction does all
violates the statute but once and iucurs ONLY
one penalty. Yet he violates it equally by do
ing one OF the things. Therefore the indict-
ment upon such statute may sllege in sim
gle count that the defendant did as many. of
the forbidden things the pleader chooses,
employing the conjunction "and" where the
statute has "or,'' and ii will not be double, and
1t will be tablished at the trial by proof OF
any one OF them.
In the opinion the court thus pays its
respects to the law:
The act is not well drawn. Upon the con-
trary, II is crude-entrely too crude to leave
the hands of the State Legislature especially
when we consider the importance of the legis-
lation with which that body was then dealing
We cite single instance in illustration OF
these remarks, and then leave the act with the
epresent Code Commission as furnishing ample
material Tor substantial reconstruction. One
clause provides that any person is guilty "who
fra IN
with the intention OF robbing the same" The
meaning OF the phrase, ''unlawfully board any
passenger tra1n,' by reason OF its indefinite
ness 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 passenger train
we will not indulge in surmise.
The act arose from the necessity of the time
and was created for the purpose of stopping
tra1n-wrecking and Furnishing 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. 1t covers four distinct and sepa-
rate branches of the subject, TO wit:
l. Every person who shall unlawfully throw
out switch, remove rail place any OBJ
struction upon any railroad in the State of
California, with the intention of derailing any
passenger, freight or other train.
2. Who shall unlawfully board any passen-
ger train, with the intention of robbing the
same.
3. Who shall unlawfully place any dynamite
or other explosive material or other obstruc-
ton on the track of any railroad in the State
of California, with the Intention of blowing up
or deralllng any passenger, freight or other
train.
4 Who shall unlawfuIly set fire to anv rail
road bridge or trestle over which any passen-
ger, freight or other train must pass with the
intent OF wrecking said train.
Inc whole purpose and tenor of the act is
directed against train-wrecking, and this is
true as to subdiYfsiOnE2, equally with ell other
subdivisions. AT first glance the clause would
fntuo ND
the crime of robbery, but the offense of rob-
berry is only incidentally involved and the
prevention OF the yreeking OF the train, and
of injury and death to its passengers-is its
prime purpose. Whatever else the clause
means, 1t imports acts of violence upon the
tram. IL imports to more or less degree the
subJectlon OF the employees to the robbers the
menace and duress of the employees loss of
control OF the train by them, fright upon their
part and even death. These things being so,
the probabilities OF destruction of the train
ana passengers follow as necessarily as such
probabilities would follow the misplacing of a
switch or the removal of a rail. Hence we saw
that every part and clause of the act is directed
toward the suppression of train-wrecking.
Inc information in this case is elumsily
drawn IN TINS, that 1T is not directly and spe-
clhcAlly shown that 1t was the same passenger
tIaln toward which the two unlawful acts
charged against the 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 assump-
lion. The further point is made that there Is
no such thing as robbing a passenger train.
and that the statute in that regard is meaning,
less. "Robbing store" 'robbing safe" and
"robbing train are everyday, ordinary and
common expressions. Very possibly it is in
this sense that the Legislature used the verb
rob- and not in connection with the tech
nical meaning of the offense of robbery But
aside from this the trial court told the Jury
what was meant by robbing train, and no
complaint is here made that such constru ction
OF the law was not sound.
The opinion was written by Justice Ca
route and was concurred in by Justices
Mcfarland Van Flee and Harrison. JUS
tice Temple wrote dissenting opinion, in
which he said the information was fatally
defective, as it should so charge the crime
that conviction would inevitably follow
were its charges proved. Justice Hen
shaw also wrote an opinion of the same
nature. There was a demurrer to the in
formation submitted in the lower court,
which was overruled, and the appeal was
from this judgment as well as from the
judgment in the case. All this means that
Thompson is in imminent danger of being
hanged.
q 80 Ira Rnd