I concur in the dissenting opinion of Mr. Justice Temple.
To what he has said it may be added that there is involved in this dissent no doubt of the power of the legislature to pass the statute under review, nor any doubt of the validity of the statute as a penal law.
The legislature might by a single enactment provide, for example, that every person who commits a murder, every person who commits treason against the state, every person who bears false witness against another by means of 'which that other loses his life, upon conviction shall be adjudged guilty of felony and shall be punished with death. Such a law would violate no rule applicable to the enactment or interpretation of penal statutes. These offenses are all now punishable by death; yet would anyone assert that under a system of criminal pleading such as ours, which commands that the indictment shall charge but one offense, these acts a or any two of them might be charged in one indictment? With deference to the reasoning of the prevailing opinion I think until it became the law of the state he would have been deemed a rash advocate who would have dared so to argue»
*256And the reason is not far to seek. Such a law, though cast in one enactment, declares against several separate and distinct crimes. Is it less plain that the act under consideration does the same thing?
Where a .statute makes penal a single act done with one of several unlawful intents (as the derailing of a train for the purpose of injuring property, or for the purpose of larceny, or for the purpose of killing or maiming its passengers: People v. Milne, 60 Cal. 71), or where it enumerates a series of acts done with a single unlawful purpose, either of which acts separately or all of which together constitute but the one offense (as making, altering, uttering, passing or attempting to pass a forged and counterfeit instrument: People v. Ah Wo, 28 Cal. 205), an indictment charging the single act with the multifarious purposes or the several acts with the single purpose is not objectionable.
This is as far as the rule goes, and from the illustrations which Mr. Bishop gives to support his text it is as far as the learned author ever meant to be understood as carrying it. He says in explanation of his statement, quoted in the prevailing opinion:
“ Thus, where the statute forbids the unlicensed sale of, for example, rum, brandy, whisky or gin, the interpretation is that the offense may be committed by selling any one or two of the specified liquors, or all of them; and whichever is done in one transaction there is but one crime. So it is not ill to charge in one count that the defendant did offer to sell and suffer to be sold intoxicating liquor. Under a statute the words of which are ‘ shall willfully destroy, deface or injure/ etc., one may be charged with * destroying, defacing and injuring' a register. Under a statute to punish one who ‘utters or passes or tenders in payment as true’ any counterfeit money, it may be charged that the defendant ‘did utter and pass as true/ etc. A statute made punishable any one who ‘ shall sell or offer for sale’ any lottery ticket, and it was adjudged not double to charge that the de*257fendant did unlawfully offer for sale and did unlawfully sell ’ a lottery ticket.”
After having given these examples the author is careful to point out that “ The natures of the offense and of the act should be considered in determining whether or not a charge is double.” (1 Bishop’s New Criminal Procedure, sec. 486, and notes.)
It is no answer to the contention that boarding a train for the purpose of robbery is a distinct offense from derailing it, to say' that the unlawful boarding may tend to derail it. Even a man accused of crime is only chargeable with the natural consequences of his act, and the legislature itself may not declare that to be a natural consequence which in fact is not. But, indeed, in this case it is not the legislature but this court which has done so. The legislature has said only that for his attempted robbery he is guilty of a felony; this decision in effect says that he must be presumed to have intended that his robbery should result in train wrecking. Yet the defendant might have entered the train for purposes of secret theft. He might have entered undetected and have escaped in like manner. It might have been furthest from his thoughts to disturb any person upon the train. It might have been his earnest wish and active endeavor to prevent the train from being wrecked or derailed while he was on it, since in that event he must share the common peril of the others. Still, for doing what he did, he would have violated this law, and his conviction under it would be justified. Yet can it be said that his act was train-wrecking” or had anything in common with the other acts and offenses enumerated in the statute? His acts do not import violence. And it is a part of common reading that when acts of violence are committed by robbers who are themselves upon a train, in consideration of their own safety they first bring it to a standstill that it may not be wrecked.
Nor can I perceive that it would have relieved the embarrassment which seems to have been felt in interpreting this statute if the legislature had in fact desig*258Hated the acts as “ train-wrecking.” Plenary are the powers of that body. Its ipse dixit may create a crime, but there is no such magic in a name as will enable even the legislature to make robbery or rape or perjury “ train-wrecking” merely because it calls them that.
If in the instance above cited the legislature had said that every person who commits murder, treason or perjury, which costs another his life, shall be guilty of the unpardonable crime and on conviction shall suffer death, a common name would thus have been conferred upon three distinct offenses. Could they for that reason have been charged in one indictment?
The suggestion of Mr. Justice Templé that it is incumbent upon this court to define w'hat is meant by “robbing a train” is treated in the last paragraph of the opinion. But even by it the phrase is given no interpretation. It is suggested merely that “ very possibly,” the legislature intended to use the word “rob,” not as it used it in creating and defining the crime of robbery, but as a mere colloquialism, and it is said that “robbing a store” and “robbing a safe” are every-day, ordinary and common expressions. But would an indictment charging a man with robbing a store be upheld ? And if so, what is the definition of the offense?
This is the precise question which the defendant in this case puts when he argues that there is no such crime known to the law as robbing a train, and if there be, he asks this court to define it and say whether it means burglary or larceny of goods in a train, or the robbery of some person upon the train.
It would seem that a defendant situated as is this one, under a sentence of death, and appealing to this court as is his right for an interpretation of the law under which he is to be hanged, sentenced under a law which now for the first time is before the court for construction, is entitled to a forthright answer, rather than to a mere conjecture as to what may or may not have been in the legislative mind. Nor is it an answer to say that he is foreclosed because he took no exception to the *259trial court’s instruction upon the question. He is here within his right in asking the court of last resort to define the law, and it seems hardly to fill the measure of his just demand to tell him that he did not object in .another forum to a definition given by somebody else. Moreover, it was not incumbent upon the defendant to take any formal objection and exception to the instructions. His rights in that regard are fully preserved by section 1176 of the Penal Code, which provides: “When written charges have been presented, given or refused, or when the charges have been taken down by the reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges of the report, with the indorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal in like manner as if presented in a bill of exceptions.” And when a defendant urges upon this court that the offense with which he is charged is not one known to the law, how it can be said that he is not objecting to instructions which purport to define the offense? The prevailing opinion may be taken as deciding, against defendant’s contention, that there is such a crime as “robbing a train”; but whether that crime be the one defined by the instructions or some other, appellant is not told.
To the further defect in the indictment which Mr. Justice Temple points out, namely, that it does not even appear that the attempt to rob and attempt to wreck were directed against the same train, it is answered, not that the pleading does so show, but that it is fairly inferable therefrom, and that the record discloses that the •case was tried upon that theory. But this defendant is demurring to the indictment, and an absence of necessary averment is conceded. Is its absence to be supplied by an inference ? Then it is not necessary, even against demurrer, to charge that a defendant committed a crime; it is sufficient to plead circumstances from which it may be inferred that he committed a crime,
*260This hearing is on demurrer only. What difference can it make to a logical decision of the question, to say that the case was tried upon one or another theory? When the defendant’s demurrer was overruled there was nothing for him to do but to submit to a trial upon any theory which met the views of the prosecution and judge.
But, if the prevailing opinion looks for support to the trial of the cause, there can be no objection to scanning the record. The state of things there disclosed shows what the trial court believed to be the scope of the indictment, proves that the defendant w-as in fact tried upon two (if not three or four) distinct and separate offenses, and demonstrates the vice of the ruling which upholds this pleading.
With the instructions as declarations of principles of law no fault need be found; but, as dealing with a single crime, they are anomalous in the history of the criminal jurisprudence of this state. The jury is instructed: 1. That if defendant threw out a switch with intent to derail a passenger train, he is guilty; 2. If he unlawfully boarded a passenger train with intent to rob said passenger train, he is guilty. (It is not charged to be the same train as that he attempted to derail.) 3. If he boarded an express train at Boscoe station, and by force or violence, or by putting in fear the messenger, robbed and stole money in his custody, he is guilty; 4. If defendant abetted one Johnson in derailing a train, whereby one Masters was killed, then he is guilty. Here there are instructions touching train wrecking, and an attempt at train wrecking; boarding a train with intent to rob it (whatever that may mean); robbery of a messenger-up on the train, and murder.
The indictment, double as it is, charges no more than the throwing of a switch with intent to derail a passen-. train, and the unlawful boarding of a passenger train at a station with intent to rob it.
These instructions are addressed to evidence admitted under the indictment. But can it be said that they are-*261applicable to a single crime, or to a series of acts having in view a single purpose? I am convinced that it cannot.
Beatty, C. J., concurred in the dissent.
Rehearing denied.