DocketNumber： Crim. 6127
Judges： Schauer, Carter
Filed Date： 3/26/1958
Status： Precedential
Modified Date： 11/2/2024
I dissent.
This case demonstrates, more than any other which has come under my observation, the abuse of our conspiracy stat
The majority has quoted extensively from the testimony of some of the witnesses, but in all of this testimony there is not even a suggestion that there was an agreement or understanding between the defendants that any of them would commit a crime or that there was a plan, design or scheme to violate any law in any respect whatsoever, and the majority opinion does not refer to any evidence in the record which even remotely gives rise to an inference that a conspiracy existed between the defendants to violate a law.
True, a misdemeanor may have been committed by one or more of the defendants, but it requires something more than
The record shows that a jurisdictional dispute existed in San Diego County between the local butchers’ union and the local retail clerks’ union. The butchers’ union was of the opinion that its members should handle certain merchandise such as frozen TV dinners rather than members of the clerks’ union. Defendant Osslo was secretary-treasurer of the butchers’ local, McFaden and Meyer were business agents for the same union. Four of the other five defendants were members of the Sailors Union of the Pacific and Caeio was a member of the Teamsters Union who had come from San Francisco to San Diego to accompany and protect the business agents of the butchers’ local. The five defendants arrived in San Diego several days prior to October 22, 1955 and were in contact with Osslo, McFaden and Meyer; they attended a butchers’ union meeting on October 21st. The record shows that these five defendants were paid weekly by the butchers.
The altercation out of which this case arose took place in Ferguson’s Market in Chula Vista. The facts giving rise to the fight in which one Maurer, a retail clerk, was struck and injured are hotly disputed and present a very close question.
Defendants’ major contentions are these:
(1) That there is no evidence that they conspired to commit assault;
(2) That the district attorney was guilty of prejudicial misconduct in numerous instances ;
(3) That the court committed prejudicial error in the admission and exclusion of certain evidence;
(4) That the punishment imposed as to defendants Osslo, McFaden and Meyer is improper, excessive and unauthorized under the laws of the state and constitutes cruel and unusual punishment in violation of the Constitution.
The evidence, fairly stated, is as follows:
Early in September, 1955, there had been a strike of the butchers at the Food Basket Market in Pacific Beach which was authorized by Osslo, who was secretary-treasurer of the local union as well as the President of the Western Federation of Butchers, and the executive board. This strike arose over some 23 disputed items containing meat which were handled in the grocery department. After the strike in which about
On October 22nd, Osslo, McFaden and Meyer, accompanied by the five other defendants, visited several markets in San Diego. They arrived at Ferguson’s Market at about 11 o’clock in the morning for the purpose of seeing one Linnville, partner and manager of the market. They were told to return at 1 o'clock. At 1 o’clock Dimitratos, Cacio, Hazel, Jackson, Meyer, Woodard, Dempster, Tucker and McFaden returned and went into the market. McFaden, Jackson and Meyer stayed near the entrance talking to Linnville; Hazel went to the back to talk to a young lady in the delicatessen department (the young lady testified that Hazel was with her at the time of the assault) ; Dimitratos went to the back and observed the meat department at the right; Tucker and Cacio, who had been to Tia Juana the night before and who had been drinking heavily, went in search of buttermilk and when they did not find it turned back and came across Maurer and Montgomery who were representatives of the Clerks from outside San Diego. Defendants claim that as Dempster walked past them, followed by Tucker and Cacio, Maurer put his foot out; that Dempster saw it and stepped over it, but that Tucker, thinking Maurer was trying to trip him, stepped on Maurer’s foot; that Maurer struck at Tucker and missed and
Dempster took Caeio whose trousers were torn and who was in pain to one of the two ears. He then asked McFaden for the keys and Dimitratos, Hazel, Caeio and Dempster then drove off looking for the Ace Motel where they were staying. They lost their way and were picked up by the police who found that Cacio and Tucker had been drinking and noted Caeio’s condition and that of Tucker’s hands. Maurer arrived at the police station that afternoon and identified them.
A bakery clerk at the market said that Tucker, Cacio and Dempster were the ones responsible for the beating. Maurer’s testimony implicated Dimitratos in the fight; and showed that he thought he had hit Cacio in the stomach; that up until the time he was called a foul name and had been hit he did nothing at all to provoke a fight; that he and Montgomery had been trying to leave the store when they were “surrounded” by men. An organizer for the Clerks testified that Dempster was also in the fight; that Dimitratos and Hazel attempted to “get” Montgomery by chasing him.
The record contains testimony from both members of the clerks’ and butchers’ unions who were working in the market. A member of the Butchers testified that Maurer was “looking for trouble” on the day in question. The Clerks, on the other hand, testified that Maurer was just standing and minding his own business. It is obvious from the record that the testimony from both sides of the controversy was diametrically opposed.
The police officers testified that they had been alerted by radio from the Chula Vista police department; that when they stopped the car, Cacio, Dempster, Dimitratos and Tucker got out; that Caeio and Tucker said that “someone” had been reaching for a gun; that Tucker’s hand was red and swollen; that Caeio’s trouser leg was torn in two places at the thigh and that the men had been drinking. Dempster stated to the police that he had come from San Francisco on a vacation with his friends Tucker and Caeio; that he knew Dimitratos was in San Diego; that he did not know anything about a
The People allege the following overt acts with respect to the conspiracy to commit assault count:
(1) That Osslo had a conversation with Harry Lundeberg, on or about October 13, 1955, in San Diego;
(2) That Dimitratos and Hazel met in San Diego on or about October 15, 1955;
(3) That McFaden, at Osslo’s request, made reservations for three rooms at the U. S. Grant Hotel in San Diego on or about October 14, 1955;
(4) That McFaden, Dimitratos and Hazel met at the U. S. Grant Hotel on or about October 15, 1955;
(5) That Dimitratos and Hazel met at Butchers’ Local 229, 227 É. Street, San Diego, on or about October 17, 1955;
(6) That Dimitratos, Hazel and Meyer, and other representatives of butchers’ local met at Tang’s Market, 4508 Cass Street, San Diego on or about October 18, 1955;
(7) That Dempster, Cacio and Tucker met in San Diego, on or about October 21, 1955;
(8) That Dempster, Cacio, Tucker, Dimitratos and Hazel met at the Ace Motel, San Diego, on or about October 21,1955;
(9) That Dempster, Cacio, Tucker, Dimitratos and Hazel accompanied McFaden and Meyer to Ferguson’s Market in Chula Vista on or about October 22, 1955;
*112 (10) That Dempster, Cacio, Tucker, Dimitratos and Hazel were in a certain Ford sedan leased by butchers’ local in San Diego on October 22nd;
(11) That Osslo and/or McFaden agreed to pay Dimitratos his expenses and a weekly salary on or about October 15, 1955;
(12) (13) (14) (15) That there was a similar agreement with Hazel, Tucker, Dempster and Cacio.
The People argue that from the above alleged overt acts, a jury could reasonably infer that a conspiracy to commit assault existed between the defendants; that the jury could reasonably determine that Osslo, with the knowledge and approval of McFaden and Meyer procured the services of the five sailor defendants for the purpose of intimidating the Clerks ‘ ‘ by their appearance and that if this was not sufficient, of perpetrating an assault upon a clerk who should happen into their proximity.”
There is evidence in the record which tends to prove all of the alleged overt acts. As I read the record, however, there is no evidence (and the People point to none) that the fight was planned, or premeditated, or that any of the proved overt acts lead to that conclusion. Assuming that Cacio provoked the altercation and that Maurer did not (although the evidence is extremely close on that point) telephone calls between the defendants, payment of expenses, salaries, and the making of hotel reservations, do not lead to the conclusion that the defendants were engaged in a conspiracy to commit an assault. The People argue, by quoting from the remarks made by the trial court, that because the five defendants were furnished bail, counsel, and their salaries were paid after the assault, that the assault had been planned between all defendants prior to its commission. In People v. Williams, 30 Cal.App.2d 234 [85 P.2d 974], relied on by the People, there was direct evidence that a conspiracy existed to commit assault. The same is also true of the case of People v. Dail, 22 Cal.2d 642 [140 P.2d 828], relied upon by the People. It is my conclusion that the alleged and proved overt acts charged against these defendants do not support the judgment convicting them of conspiracy to commit assault.
Misconduct of District Attorney
It is the defendants’ contention that the district attorney engaged in a course of prejudicial misconduct during the course of the voir dire examination of prospective jurors,
On voir dire examination, prospective jurors were asked whether they felt that “any segment of our society should be immune from the law” or “should take the law unto themselves” and whether they felt that because a person was a “member of a labor union, [he] deserves to get beat up once in awhile”; whether (after the sustaining of an objection) the prospective juror felt that “might makes right”; whether because the Clerks and Butchers had settled their difficulties it would cause the prospective juror to adopt a “let’s forget it” attitude; whether the prospective juror felt that “the community might have some interest in the matter”; whether the prospective juror had read “Victor Riesel’s column ‘Inside Labor ’ ”; whether any of the people in the jury box had read the column; whether the prospective juror realized that every time the district attorney introduced a “bit of evidence in this ease that in some way or other I am going to be prejudicing these defendants in your eyes”; that the juror realized “don’t you, that we are not up here in a criminal department to elect Mr. San Diego”; that “if in the course of this trial and as you examine the facts surrounding the beating of the clerk in Chula Vista, if you become aroused, and as a public citizen as to what happened, will you try and remove that from your mind and just try the ease on the evidence and the Court’s instructions and use that to arrive at your conclusion”; whether the prospective juror had heard that Mr. Osslo was a member of the grand jury that indicted him. (An objection was sustained to the last question.) It should be here noted that defense counsel objected throughout the course of the questioning that the questions were argumentative; that the district attorney was attempting to prejudice the jury; that the questions were irrelevant and immaterial; that the questions were for the purpose of inflaming the minds of the jurors.
During the opening statement, the district attorney again referred to the fact that Osslo had been a member of the grand jury that indicted him and defense counsel’s objection was overruled. The district attorney then stated that the evidence would show that “in the middle of October, 1955, another person was worried about Osslo and worried about goons.” When defense counsel asked what the last word was, the district attorney replied: “Goons, Another man was worried
Prior to the taking of testimony, the trial court inadvertently started to instruct the jury concerning assault with a deadly weapon. When defense counsel objected that no use of a weapon had been charged and that the evidence would show that no weapon had been employed, the district attorney asked his co-counsel in the hearing of the jury: “A prize fighter is a weapon ? ’ ’ Also assigned as misconduct is the fact that before the court had ruled on the matter, and during a conference in chambers concerning the admissibility thereof, a board containing photographs of all the defendants, some of which were taken on the day they were arrested, was so carried and placed in the courtroom that it was visible to the jury.
During the course of the trial, a witness was asked if he knew that Harry Lundeberg supplied “strong arm men in the labor movement.” When an objection was sustained, the district attorney again asked if the witness knew whether or not on any prior occasion Lundeberg sent strong arm men into jurisdictional disputes or disputes with management. When a witness referred to Cacio as the “second gentleman there ...” the district attorney said, “I object to the use of the word ‘gentleman.’ ” The district attorney also managed to get in evidence the general strike in Oakland in 1948, or 1949, the Wall Street strike in 1948, the Western Union strike in 1952, the United Financial Employees strike in 1948, in an attempt to show that Harry Lundeberg furnished “strong-arm” men from the Sailors of the Pacific to aid in the strikes. To all of this evidence, defense counsel’s objections were overruled. The district attorney in his questioning referred to sending two sailors out to “bird dog Anderson”
During closing argument to the jury, the district attorney stated “Incidentally, let me say this: a man died in the gas chamber not too long ago for just this type of conduct. He beat a woman in the face and when she fell he kicked and killed her and he died for that.” He also stated: “Incidentally, while mentioning him, let me say this: one or more of the jurors may say, ‘Well, that Jackson was in this thing and he was at the scene and he did as much as some of the other people. Why isn’t Jackson indicted? Why isn’t Lundeberg indicted?’ Those are unindicted coconspirators. That shouldn’t concern you here. In other words. ...” After objection, the court stated that the district attorney’s “remarks weren’t directly in conformity with the Indictment. The indictment does not name them as unindieted co-conspirators, but if he feels under the evidence they are co-conspirators he may so state.” After other objections, the court again stated that if the district attorney felt that ‘ ‘ some of his witnesses were co-conspirators he may so tell the jury, if he bases it on the evidence.” The district attorney also told the jury “You hear about the great man, Harry Lundeberg, that is clearing the waterfront of Communists. Let me say this: Harry Lundeberg, Barney Mayes and Harry Bridges were all bed fellows at one time. ...” After being told by the court to proceed with his argument, the district attorney said: “The water tenders, the firemen and what have you is an independent union and Lundeberg, in his grab for power, has used that old slogan to grab these unions, so that is malarky when they try to inject Communism in this case. It has been something Lundeberg used to control the docks. It is two percent his fight against Communism and ninety eight per cent his grab for jurisdictional power. That is what it amounts to. So don’t let them get you off base on this
“The Court: Mr. O’Laughlin, I kept that out of evidence.
“Mr. O’Laughlin: Well, where were the Communists in the Western Union strike? When old Thompson got beat up because he happened to cross a picket line? None of that at all. Lundeberg—and the reason we were bringing it in, counsel says what has Wall Street to do with it and the general strike in Oakland, or what has the Western Union strike to do with it. It shows a pattern that Lundeberg supplies the noise and the muscle. He can swing a jurisdictional dispute; he can swing an election. You and I might be members of a union and be sore at the particular administration and we might want it out for one reason or another, but if the pack that is in brings down the muscle, brings down some of Lundeberg’s boys, we are going to be silenced because we are going to be afraid of our lives, afraid to open our mouths, because if we do we might get the treatment Maurer and Thompson got.” When this was objected to by defense counsel as unsupported by the evidence and as improper and inflammatory, the court merely told the district attorney to “Proceed.”
While numerous additional instances of the same type of conduct could be cited, it appears that the above is sufficient to show that the district attorney was guilty of prejudicial misconduct insofar as all of these defendants are concerned. As we said in People v. Dail, 22 Cal.2d 642, 650 [140 P.2d 828], “It is also true, however, that in a close ease where the evidence is sharply conflicting, substantial and serious errors vital to defendant that may have resulted in a miscarriage of justice must be regarded as prejudicial and grounds for reversal. (People v. Silver, 16 Cal.2d 714, 723 [108 P.2d 4].)” In the case at bar, the district attorney managed to interject much immaterial and irrelevant matter concerning strikes, the use of pickets, and assaults in other strikes which could not have had any other effect than to prejudice these defendants who were not claimed to have taken part therein. Further, the numerous references to the defend
Admission and Exclusion of Evidence
It is first claimed by the defendants that the court erred in admitting the testimony of Captain Hodson. This testimony included the admission in evidence of part of the log book of the steamship Luckenbach concerning a fight in 1952 in which defendants Dimitratos and. Dempster were involved.
The above evidence was held admissible by the trial court on the theory that a conspiracy had been charged even though the People did not contend that the conspiracy had dated back to 1951 and 1952. Defense counsel’s motion to strike was denied by the trial court. From the trial court’s remarks, it is obvious that the evidence was held admissible on the theory that a conspiracy presently existed between all defendants.
The evidence was inadmissible on any theory and its prejudicial effect is at once apparent.
The admission of evidence concerning the Wall Street strike, the general strike in Oakland and the Western Union strike has heretofore been commented upon in the discussion concerning the prejudicial misconduct of the district attorney. The trial court’s statement that “The reason I let this testimony in was to show other instances where the members of the Sailors Union were used and what transpired, to show the demeanor of the sailors used on the picket lines. In this conspiracy count you are entitled to know all the surrounding circumstances of the people that were employed in the incident down here, if one happened,” and the court’s later ad
Defendants contend that the court erred in excluding testimony offered by them to show that threats had been made against some of them which necessitated the request to Lundeberg for bodyguards to accompany the Butchers’ business agents on their rounds. Inasmuch as the evidence is in sharp conflict as to which side started the fight, this testimony should have been admitted. If threats had been shown to have been made against the business agents of the Butchers by members of the clerks’ union, the evidence would be admissible as tending to prove the defense theory that the five defendants were summoned to San Diego to act as bodyguards only and to disprove the People’s theory that a conspiracy to commit assault existed between all eight of the defendants.
Punishment of Osslo, McFaden and Meter as Improper, Excessive and Unlawful
Osslo and McFaden were each fined $1,500 to be paid from their own funds; Meyer was fined $750 to be paid from his own funds.
Osslo and McFaden were ordered to serve six months in the county jail; Meyer was ordered to serve three months in the county jail.
These three defendants were placed on 10 years’ probation, during which time they could hold no union office and receive no salary for any union services, or participate in any union negotiations. In addition, these defendants were required to fill out an annual affidavit that the fine payments were made from their own funds and that they held no union office, etc., and “further, that this Court and Judge shall retain jurisdiction of this matter throughout the said period of probation and no other department of the Court or other Judge shall modify this order without notice to the Judge who tried the case. ...”
While these three defendants were found guilty of both conspiracy to commit assault, and assault with force likely to produce great bodily harm, it is apparent from the record that they were not involved in the actual assault. Defendants claim, with merit, that it is impossible to determine whether they were convicted of a felony or a misdemeanor since they were charged with and found guilty of conspiracy to commit assault and charged with, and found guilty of, assault with force likely to produce great bodily injury.
Defendants’ arguments in this respect have merit. It appears that the terms of probation are such as would deprive defendants of their means of livelihood and also violate the principles of probation. The purpose of probation is not to impose penalties (In re Hays, 120 Cal.App.2d 308, 310 [260 P.2d 1030] ; In re Martin, 82 Cal.App.2d 16, 22 [185 P.2d 645]). It is my opinion that the trial court was guilty of an abuse of discretion with respect to the terms and conditions of probation imposed on defendants Osslo, McFaden and Meyer.
Errors in the Majority Opinion '
The Evidence :
I have heretofore set forth a fair statement of the evidence as it relates to the ease at bar. We are here concerned with evidence to support a judgment of conviction of conspiracy to commit assault. There is no doubt that an assault was, committed by some of the defendants. Defendants Osslo, Mc-Faden and Meyer were not involved in the actual assault and the People do not so argue. The majority opinion quotes at length from the testimony of one Jackson, a business agent for the Butchers. Nothing said by the witness, or quoted in the majority opinion, leads to the conclusion that these defendants were engaged in a conspiracy to commit assault. The
Because defendant Osslo said he was “top man” on the west coast and “that was it” and because he said the Butchers would “show” the Clerks, the majority infers that Osslo “set up a situation which inferentially was designed to, and which clearly did, increase the likelihood of violence in the jurisdictional dispute. On a view of the evidence favorable to the prosecution, which the law at this stage of the proceeding requires of us, it is fairly inferrible that Osslo, McFaden, and Meyer at least tacitly understood, anticipated that the remaining five defendants would not merely be present to act as ‘observers’ and protect the Butchers from violence, but would and should initiate the violence, which they subsequently did initiate, to ‘show’ the Clerks that Osslo indeed ‘was boss of the West Coast and he would fight for jurisdiction’ and ‘that was it.’ ” No such inferences can be fairly drawn from the record. It should be borne in mind that the conspiracy charged here was to commit assault—not a conspiracy to make Osslo “boss” of the west coast! There is absolutely nothing in the record from which an inference may be drawn that Osslo intended the five defendants to “initiate” violence and
Admission and Rejection op Evidence :
The majority feels that the admission of evidence concerning other and remote labor disputes in which other members of the sailors’ union were involved was not prejudicial error when considered in the “light of other circumstances, including the prior activities of Osslo, McFaden and Meyer” to show that these men “contemplated that the employment of the sailor defendants probably would result in acts of violence by” the other five defendants. First we are told to rely on the asserted violent tendencies of other members of the sailors’ union to show that Osslo, McFaden and Meyer are guilty as charged and, secondly, that “the prior [unexplained] activities” of the three men made such evidence admissible because it showed their knowledge that violence would result. There is absolutely nothing in the record to show any connection between the other strikes in which other members of the sailors’ union participated and any of these defendants except that some of them belonged to the sailors’ union.
The majority finds that the jury could not have been misled because of the admission of evidence of fights, unconnected
Concerning the admission of evidence of telephone calls between the defendants and other members of their organizations of which the defendants complain, the majority says “This evidence was properly received to show defendants’ association; that that association was criminal is shown by the other evidence, viewed as a whole.” This statement assumes the answer to the main question involved—whether defendants conspired to commit the assault and battery which occurred. Mere association and telephone calls, the subject matter of which is completely unknown, have never, until now been sufficient to show that a conspiracy to commit a crime existed. Under the holding here, no association, no telephone call, can be innocent and immune from a later charge of conspiracy if one of the parties should later be accused of a crime of any type.
With respect to the admission of evidence of the arrest of two members of the clerks’ union after the assault and battery involved here occurred, and of which defendants complain, the majority says that “This testimony tends to show that defendant Osslo, after the assault, attempted to harass the Clerks by unsubstantiated accusations and to distract emphasis from the charges against him by countercharges; it was thus admissible as tending to show that Osslo was a conspirator carrying on an effort to make good his declaration that he ‘was boss of the West Coast and he would fight for jurisdiction, ’ and not, as he argues, the innocent employer of persons who were to act as ‘observers’ or at the most to show the Clerks that the Butchers were protected, without the exercise of force.” The conspiracy charged here was that
The majority holds that the exclusion of evidence concerning McFaden’s report to Jackson and Osslo that he had been frightened by the Clerks could not, in the “light of the record” have prejudiced defendants. This evidence was patently admissible under the defendants’ theory and should have been admitted. It is clearly seen that evidence damning to them is held properly admitted while evidence in their favor is held properly excluded. A fair trial encompasses all the relevant and material admissible evidence whether favorable, or unfavorable, to either side. A fair trial does not mean a trial where the prosecution uses every means, whether fair, or foul, to gain a conviction and no court should condone such a practice. As we said in People v. Lyons, 47 Cal.2d 311, 317 [303 P.2d 329], it would be an impeachment of the legal learning of counsel for the People to intimate that he did not know that what he was doing was improper, wholly unjustifiable and peculiarly calculated to prejudice the appellant before the jury. Counsel for the People knew, or should have known, that his conduct and a great deal of the evidence produced by him was wholly irrelevant and that it was “peculiarly calculated to prejudice” the defendants in the eyes of the jury. He should also have known that evidence relevant to defendants’ side of the ease was admissible and a part of the entire background of the American system of jurisprudence —a fair trial.
Misconduct op the District Attorney :
I have heretofore set forth in detail some of the instances in which the district attorney was guilty of prejudicial misconduct and the majority has cited some additional examples all of which were calculated to and did inflame the minds of the jurors. The majority, however, finds that “the evi
It can hardly be doubted that the interjection of Communism in the case was prejudicial to the defendants as was the use of the words “goon,” “finger man,” “strong-arm men,” and “toughs.” All of these things tended to attack the character of the defendants so as to prejudice them in the minds of the jurors and from the state of the record were obviously calculated to do just that by the prosecutor.
An admonition to the jury to decide the case on the evidence produced is insufficient to cure the errors and misconduct which occurred in this case. A reading of the record shows that from the voir dire examination of prospective jurors, throughout the trial, and until its close, the prosecution was guilty of a deliberate attempt to harass, embarrass, and prejudice these defendants. The majority finds nothing wrong with the trial judge permitting counsel for the People to “yell” at one of the defendants while on the stand. It is said that the record does not show that the “yelling” intimidated the witness. The district attorney is a representative of the People and as such is not “at liberty to strike foul” blows. Here, as in People v. Teixeira, 136 Cal.App.2d 136 [288 P.2d 535], “. . . it is hard to believe that this expe
Conditions op Probation:
I have heretofore discussed these conditions and my reasons for feeling that they were excessive and in violation of the principle of probation. The majority cites People v. Frank, 94 Cal.App.2d 740, 741-742 [211 P.2d 350], as authority for its holding that the punishment imposed was perfectly proper. In the Frank case the defendant was himself guilty of committing a crime. In the case at bar, defendants Osslo, Mc-Faden and Meyer were not guilty of the actual assault and it is only by means of the improper use of the conspiracy statute that they are in any way involved. As I have pointed out the record shows a total lack of evidence that these defendants conspired with the others to commit the crime with which they were charged and a majority of this court, in affirming the judgments of conviction and the terms of probation, has deprived these three defendants of their means of earning a livelihood since they may not even work as the most menial of laborers in their own union and cannot receive remuneration “from any union.” The terms of probation are wholly out of line with the cases holding that probation is an act of grace and clemency for the purpose of permitting rehabilitation of a defendant who is “seemingly deserving” and for the purpose of permitting him to “escape the extreme rigors of the penalty imposed by law for the offense of which he stands convicted” (People v. Hainline, 219 Cal. 532, 534 [28 P.2d 16]; Lee v. Superior Court, 89 Cal.App.2d 716, 717 [201 P.2d 882]).
Summation
In my opinion:
1. The judgment should be reversed with directions to dismiss the charge of conspiracy to commit assault as to all defendants because of the total lack of evidence in the record to support the charge.
2. The record shows that only the defendants, Cacio, Tucker and possibly Dempster and Dimitratos, could have engaged in the assault. There is no evidence to show that it was other than a spontaneous assault and, in view of the sharp conflict in the evidence as to the person responsible for starting the altercation and the prejudicial misconduct of the district attorney, as well as the highly prejudicial character of the evidence erroneously admitted (as heretofore discussed), the*127 judgments should be reversed as to them in order that they may have a fair trial on the merits. We held in People v. Lyons, 47 Cal.2d 311, 319 [303 P.2d 329], that “It is axiomatic that when an accused is denied that fair and impartial trial guaranteed by law, such procedure amounts to a denial of due process of law (Powell v. Alabama [1932], 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527]).”
3. Since there is no evidence which tends to connect defendants Osslo, McFaden, Meyer and Hazel with the actual assault, the trial court should be directed to dismiss as to these defendants the charge of assault by means of force likely to produce great bodily injury.
Gibson, C. J., and Traynor, J., concurred.
Appellants’ petition for a rehearing was denied April 23, 1958. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.