I dissent from the conclusion reached by the court in this case.
The charging part of the information is that defendant “ did willfully, unlawfully and feloniously throw out a switch at Roscoe station „ „ „ , 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.”
Defendant demurred on several grounds, one of which •was that the information charges more than one offense, to wit: Throwing out a switch with intent to derail a passenger train; and 2. Boarding a passenger train with intent to rob the'same.
Both these acts are charged in the information, and except by the use of the words “then and there” it is not shown that the two acts have any reference to each other. It does not appear that any train was derailed, or, that if so, it was derailed that defendant might board it, nor that he boarded it that he might derail it; nor is it charged that the acts were in pursuance of a common intent—as to wreck the train. In fact it does not appear that he boarded the same train that he attempted to derail. In no way is it shown that the acts charged were a part of the same transaction.
To derail a train may be one mode of wrecking a train, but to board a train for the purpose of robbing it cannot in the nature of things be either a mode or the means of wrecking it. Besides, the allegations of an information must be such that, if true, the guilt of the defendant inevitably follows. It must negative the possibility of innocence. That the defendant is guilty of any act which would tend to the wrecking of a train is not shown, for he is charged to have boarded the train for the purpose of robbing it while it was standing at a station or sidetracked waiting for its right of way, and *254when no engine was attached to it. If it was intended to charge an act which was liable to cause the wrecking of the train, all such possibilities should be negatived.
As long ago as 1865 this court considered the question as to what charges may be joined in an indictment. In People v. Shotwell, 27 Cal. 394, it was said, quoting from Wharton: “Where a statute makes two or more distinct acts connected with the same transaction indictable, each one of which may be considered as representing a stage in the offense, it has in many cases been ruled that they may be coupled in one count.”
It has been held that where an offense consists of various acts which may be said to constitute different phases or ingredients of an offense, or, as is said in the above quotation, different stages in its commission, the legislature may provide that the commission of any one of these acts shall constitute the offense. In such case they may be joined and proof of any one act will justify a verdict of guilty. Further than this, in my opinion, the rule relied upon to uphold this information has never been carried in any well-considered case.
In considering authorities from other states it must be borne in mind that our statute expressly provides that the indictment or information shall charge but one offense (Pen. Code, sec. 954), while elsewhere different offenses may be joined, provided they are charged in different counts, and they are of the same general character and the mode of trial the same. (Wharton’s Criminal Pleading and Practice, sec. 285.)
The only authorities from other states, therefore, which will be of value here are those referring to the joinder of different offenses in the same count.
One point made on this appeal by the defendant is that robbing a train means nothing, and therefore the charge is not of an offense. In the leading opinion it is said: “As to what is meant by robbing a passenger train we will not now indulge in surmise.” Yet the defendant has been convicted of robbing a passenger train and sentenced to be hanged. He appeals to this *255court, as was his right, and makes the point that it is not a public offense.
The court below instructed the jury that “ if they believed from the evidence that defendant boarded an express car in a passenger train on the Southern Pacific Railroad at Roscoe station in said county, and by force and violence, or by putting in fear of some injury to the person of the messenger in charge of said car, did rob, steal and carry away any money of any value then in custody or in the control of said messenger, then the jury should find the defendant guilty.”
How can this court affirm the judgment on such an appeal without determining what robbing a passenger train means, and that it means just what the trial court said it did?