On the appeal from the judgment against the defendant (People v. Thompson, 111 Cal. 242), the instructions to the jury were not considered or passed upon by this court. The sufficiency of the information, as tested by the demurrer, was the only matter of law then considered or determined. In the prevailing opinion it was said: “ A demurrer to the information was overruled, and the reversal or affirmance of this judgment is dependent upon the legal soundness of the action of the trial court in that behalf”; and Mr. Justice Henshaw said, in his dissenting opinion: “ This hearing is on demurrer only.” It follows that only the propositions of law presented by the demurrer and then determined fall within the rules governing the “ law of the case.” These rules rest upon the principles of an estoppel, and it is evident tliat, as the action of the trial court which is now under review was had anterior to the decision of this court upon the appeal from the judgment, none of the elements of an estoppel can be invoked for the purpose of preventing a review of its action. The “ law of the case” is properly invoked when upon a former appeal, in the same action, this court has declared the rule of law governing the rights of the litigants in that action. But, as the judgment of this court upon the other appeal was rendered without determining, or even considering, the directions to the jury, and would not have even .the force of a precedent in another case involving the correctness of the same instructions, much less can it be held conclusive in the same case, when their correctness is for the first time directly challenged.
The court erred in giving to the jury the third instruction, but in my opinion, for a different reason from that assigned by Mr. Justice Temple. This instruction is as follows: “If the jury finds from the evidence that Alva Johnson, at the county of Los Angeles, state *169of California, on the fifteenth day of February, 1894, did willfully, unlawfully, and feloniously throw out a switch at Roscoe station, on the Southern Pacific Railroad, in said county, with intent then and there to derail a passenger train, and did then and there willfully, unlawfully, and feloniously board said passenger train, with intent then and there to rob the same, and in the perpetration of said offense said train was ditched, and one Masters was killed, and that the defendant, W. H. Thompson, was present then and there, aiding, abetting, and counseling said Johnson in the perpetration of said offense, then you will find the defendant guilty as charged in the information.”
The instruction follows the language of the information, and, as it was held on the appeal from the judgment that the facts set out in the information charged the defendant with but a single offense, that portion of the instruction which refers to the ditching of the train and the killing of Masters, “ in the perpetration of said offense,” was authorized by the evidence connecting the defendant with the ditching of the train; and the “offense” referred to in the instruction must have been understood by the jury as including the throwing out of the switch, as well as boarding the train. The fact that the train had been ditched before the defendant boarded the express car was immaterial if the two acts were part of a single transaction, and done in pursuance of an original purpose; and, if the defendant threw out the switch for the purpose of enabling him the more readily to board the train for the purpose of robbing it, it was immaterial that the train had been brought to a standstill before he actually got upon the car. Neither would a temporary purpose of abandoning the original plan, after the train had been brought to a stop, change the character of the offense, if such original plan was resumed and carried into effect.
The instruction assumes that there was evidence that Johnson threw out the switch, and that the defendant , was merely present, aiding, abetting, and counseling *170him in the perpetration of the offense, whereas, the only evidence in reference thereto was that of Johnson himself, who testified that the switch was thrown out by the defendant. This portion of the instruction could not, however, have prejudiced the defendant; but the former portion was clearly prejudicial to him, in presenting to the jury the fact that Masters was killed, and thus indirectly charging him with a homicide. ■ No charge of this nature was made in the information, and, although evidence of the killing of Masters was introduced before the jury against the objections of the defendant, there was no issue upon that fact, which he was called upon to meet, and the jury should not have been allowed to consider that fact for the purpose of determining his guilt.
The order denying a new trial should be reversed and a new trial granted.