The defendant was convicted upon a charge of derailing a railroad train, and unlawfully boarding a train with intent to rob the same. This appeal is from an order refusing a new trial, and the only points made are that the court erred in giving certain instructions.
An appeal from the judgment was separately taken, and there being no bill of ..exceptions to be settled—as the points arose upon the demurrer—that appeal reached here first, and was long since decided. (People v. Thompson, 111 Cal. 242.)
On the former appeal from the judgment no points were made with reference to the instructions, and, as there was no bill of exceptions, such points could not have been presented to the best advantage. Still, the defendant might have had a bill of exceptions on the appeal from the judgment, in which so much of the evidence as was necessary to illustrate his points could have been set out.
The code expressly provides (Pen. Code, sec. 1176) that the instructions given or refused, whether in writing or taken down by the reporter, with the indorsements thereon (showing whether given or not) constitute a part of the record, and the rulings may be reviewed on appeal as though embodied in a bill of exceptions.
In criminal cases, if a motion for a new trial is made, it must be denied before judgment is entered against the defendant. Section 1172 of the Penal Code provides for an exception to an order denying a new trial. The order denying a new trial is therefore an order made before judgment, and may be reviewed on an appeal from the judgment. There is, therefore, no real necessity for an appeal from an order denying a new trial. Still the code provides for an appeal from the judgment and from an order denying a new trial. (Pen. Code, sec. 1237.) Now it is suggested that because there has been an appeal from the judgment, upon which the alleged errors in giving the instructions might have been considered, they cannot be considered on this *162That is to say, a defendant is at liberty to present such questions either upon an appeal from the judgment, or upon an appeal from an order refusing a new trial, but be cannot do both. Furthermore, it is contended an affirmance of the judgment on appeal is final as to questions which were or might have been presented on that appeal. It would, therefore, follow that if he could have had a record which would have presented his point and did not, he has lost his right to be heard.
Such, as I understand the suggestions, are the reasons urged for refusing to consider the exceptions on this appeal; in reference to which it may be said that both methods are provided by the statute. The motion for a new trial is an independent proceeding in the case, and it often happens, in civil cases, that a judgment is set aside on a motion for a new trial after it has been affirmed on appeal. It could not be so vacated by the trial court in a criminal case, simply because the judgment cannot be entered until the motion for a new trial has been disposed of. But, as there may be an appeal from the judgment and afterward an appeal from the order refusing a new trial, the judgment might be affirmed here on an appeal from the judgment, and afterward set aside on an appeal from an order denying a new trial, as in civil cases.
It is entirely a matter of statutory control, and, since both appeals have been provided, I can see no reason why the court should refuse to hear either. It would be going beyond any case within my knowledge, to hold that a determination of an appeal is conclusive upon all questions which might have been raised upon any record which, under the rules of practice, might have been made.
If conclusive as to the instructions, it would be equally conclusive as to every question which might be made on a motion for a new trial, for, as already stated, every point made on a motion for a new trial could be considered on an appeal from the judgment with a proper record.
*163The true rule, in my opinion, is that defendant may prosecute both appeals, but can have but one decision of the same point.
This precise question has, I think, been decided by this court, after most mature consideration, in Sharon v. Sharon, 79 Cal. 633. That was a civil case, but so far as affects this question I see no difference in principle. The reasoning there adopted applies with at least equal force here. The court said: “The law of this state permits two appeals in the saíne case—one from the judgment, and the other from the order denying a new trial. Both of these appeals have a direct effect on the judgment, and, if successful, may vacate it entirely or modify it, as the court may determine. These appeals may both be prosecuted and be pending in this court at the same time, as was the case here until the appeal from the j udgment was disposed of. The fact that this court has declared a rule of law in deciding the appeal first reached for decision, and upon which no action has been or can be taken until the second appeal is also disposed of, cannot, by reason of the rule invoked by the respondent, prevent the court from fully investigating and deciding the second appeal to the extent of modifying or wholly changing its former decision, if it be satisfied that an error has been committed. The case must be regarded as within the control of this court until both appeals are determined.”
The questions now raised as to the instructions were not presented on the appeal from the judgment, and, as to one instruction at least, could not have been fully presented without a bill of exceptions.
On the appeal from the judgment it was decided that the information in charging that the defendant willfully, unlawfully, and feloniously threw out a switch with intent to derail a passenger train, and “ did then and there willfully, unlawfully, and feloniously board a passenger train .... with intent then and there to rob said passenger train,” did not charge two offenses.
The act. under which the prosecution was had was an *164act adding one section to the Penal Code. It was said by the court on the former appeal that “ this act arose from the necessity of the times, and was created for the purpose of stopping train-wrecking and punishing train-wreckers. The act so declared its purpose in terms, and, aside from one clause thereof, such purpose is patent upon the most casual inspection of its provisions.” Again, speaking of this one clause in which the purpose was less manifest, the court said: “ The whole tenor and purpose of the act is directed against train-wrecking, and this is true as to subdivision 2 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 incidentally involved, and the prevention of the wrecking of the train, and the consequent and natural results following of injury and death to the passengers, is its prime purpose. Whatever else the clause imports, it means acts of violence upon the train. It .imports to a more or less degree the subjection of the employees to the robbers, the menace and duress of the employees, a loss of the control of the train by them, fright upon their part and even death. These things being so, the probabilities of destruction to the train and passengers follow nearly as necessarily as such probabilities would follow from the misplacing of a switch or the removal of a rail. Hence we say that every part and clause of the act is directed toward the suppression of train-wrecking.”
To charge, then, displacing a switch with intent to derail a train and to board the same with intent to rob the same, is to charge but a single offense, because the probable, or at least the possible, effect of each act is to wreck the train. The one offense charged is trainwrecldng. Furthermore, the act is not designed to prevent or punish robbery, save when that is an incident in train-wrecking. We also derive from this a definition of the phrase “ robbing a train.” It is to take from the persons having charge of the train, by violence *165and intimidation, the control and management thereof, with intent to take from it, or from a person upon it, something of value. Train-wrecking must be such a destruction of a train as will endanger human life. It must be of an operative train, one being used.
Upon the former appeal the court was considering the demurrer alone, and, of course, understood the information to charge that the defendant boarded such a train. The evidence discloses, however, without conflict, that the defendant did not board or attempt to board the train until after it had been wrecked. At that time the train was not an operating train and could not have been wrecked. Therefore, when the defendant boarded the train with the intent to rob it—if he can be said to have done so—the act could not, by any possibility,-have contributed toward wrecking the train.
This would not necessarily have prevented the conviction of the defendant. He could still have been convicted and punished for throwing out a switch for the purpose of wrecking the train. The evidence was sufficient to sustain a conviction upon that ground. But unfortunately the jury was instructed by the court as follows: “If the jury believes from the evidence that the defendant, W. H. Thompson, with Alva Johnson, at the county of Los Angeles, in the state of California, on the fifteenth day of February, 1894, 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 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 the former appeal-, boarding a train, under such circumstances as the evidence in this case tends to prove, could not constitute the crime of train-wrecking. The jury were told that *166they 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 not then a part of a train which could have been operated or wrecked, and by putting 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.
That is to say, although they should find that defendant did not derail the train, and had not interfered with it until after it had been wrecked, still they must find him guilty of this offense if, after the train had been wrecked, he robbed the express messenger while on the car. The so-called train was not then in reality a train. It had no engine and could not have been operated or wrecked. The express car did not then constitute a part of a train. Judged by the opinion rendered on the former appeal, as well as by general rules of law, the above instruction is wrong.
There are additional objections to the third instruction. In it the jury were told that if Alva Johnson threw out a switch with the intent to derail a train, and if he unlawfully boarded the train with intent to rob the same, and' in the perpetration of such offense one Masters was killed, and defendant aided and abetted, they must find the defendant guilty.
Evidence of the killing of Masters was objected to at the trial, and admitted over defendant’s objection.
By this instruction the attention of the jury is called to it as a material circumstance tending to show the guilt of the defendant. The jury were told that if Johnson boarded the train with the intent to rob it, and the train was thereby ditched and Masters killed, defendant, if he aided and abetted, was guilty. There was no evidence which tended to show that Johnson boarded the train with intent to rob it, and that in the perpetration of that offense the train was ditched. On the contrary, the evidence shows,without contradiction, that Johnson did not board or attempt to board the train until after it had been ditched. The instruction *167was, therefore, erroneous, in that it assumed the existtence of evidence which had not been given, and because it was not applicable to any fact in the case.
For these reasons the judgment is reversed and a new trial ordered.
Henshaw, J., concurred.
McFarland, J., dissented.