People v. Dail , 22 Cal. 2d 642 ( 1943 )

GIBSON, C. J.

In an indictment containing seven counts, the defendants were charged with offenses connected with the activities of a labor union in and about the city of Los Angeles.

Count one charged conspiracy to commit assaults by means of force likely to produce great bodily injury and to commit extortion by obtaining property of persons with their consent induced by the wrongful use of force and fear. Five other counts charged certain defendants with having assaulted persons by means of force likely to produce great bodily injury, and the remaining count charged defendants with the crime of extortion.

Defendant Burris became a witness for the State and all charges against him were dismissed. At the commencement of the trial, defendant McKnight changed his plea of not guilty to guilty to count one. The other charges against him were dismissed and he became a witness for the State. Defendants Dail and Lewis were acquitted on all counts except the first, charging conspiracy. Defendants Belanger and Copelan were acquitted on all counts except two and three, under which they were convicted of simple assault, a misdemeanor. The remaining defendants were acquitted on all counts. Dail, Lewis, Copelan and Belanger appealed from the judgments and orders denying a new trial. Dail has since died and his appeal must therefore be dismissed.

Appellants contend that the verdicts and judgments are without support in the evidence and are based on accomplice testimony which was impeached. They also contend that the court committed prejudicial error in giving and refusing instructions and in commenting on the evidence at the conclusion of the trial.

During the period involved here, rival unions representing the American Federation of Labor and the Congress of Industrial Organizations were engaged in a struggle to organize truck drivers on the Pacific Coast and bring them within their respective unions. The campaign for membership was hotly contested by the opposing groups and in many instances places of business employing members of a rival union were picketed. At this time Lewis was acting president of Local 208 of the Teamsters’ Union (an affiliate of the A. F. of L.) in Los Angeles. Dail was a national officer of the union, assigned to advise and assist local unions in Southern California. As part of a program to strengthen the union and increase its membership, Local 208 employed men to work as “checkers” and “organizers” whose duties were to collect dues and obtain new members. They received their instructions from Lewis and reported back to him.

The charges in this case are related to the organizational activities of Local 208 and were based on assaults alleged to have been authorized by Lewis and committed by the defendant checkers and organizers, among whom were Belanger, Copelan, McKnight and Burris. As before stated, although five charges of assault by means of force likely to produce great bodily injury were listed in the indictment, the jury found only two instances (counts two and three) of the commission of simple assault by Copelan and Belanger. The evidence relating to those two counts will be discussed later.

In support of the conspiracy charge upon which Lewis was convicted the prosecution called as witnesses the defendants McKnight and Burris and two other men, Williams and Johnson, all of whom were designated as accomplices by the trial court in its instructions. McKnight, against whom a criminal charge (not connected with union activities) was then pending in the superior court, testified that Lewis told him his duties were to try to get nonunion men to join the union and if they “got tough” to use his own judgment. He testified further that he aided in “dumping” or “beating up” several persons, and that on one occasion Lewis criticized him for not having taken part in a fight between another checker and a truck driver who had been asked to join the union. He also testified that he had seen certain other defendants, including Belanger and Copelan, engaged in fighting nonunion truck drivers and members of the C.I.O. In his testimony Lewis denied that he ever advocated or authorized the use of force and stated that he instructed the checkers and organizers working for Local 208 not to use violence at any time. He testified that the only altercation of which he had personal knowledge was the Calkins-Copelan incident (hereafter referred to) and that the only reports he received of fights were in connection with occasions when “the C.I.O. had attacked some of these defendants.” Other witnesses corroborated the testimony of Lewis that he had warned members of the union against the use of violence.

McKnight, who was dismissed from the union on charges preferred by Lewis, admitted on cross-examination that he had been “mad at him since.” Shortly after the indictment, McKnight was questioned, and answered as follows: “Q. So you didn’t talk to . . . Lewis ... at all about any of these fights at any time? A. No. Q. In other words, all of your fights resulted from some particular occasion at the particular time? A. That is right. ... Q. You weren’t out looking for a fight? A. That is right. ... Q. You were not under orders to go out and beat anybody up? A. No.” It was also brought out on cross-examination of McKnight that he left Los Angeles at approximately the time the other defendants were arrested. He was apprehended in Kansas City and admitted that while he was there he had sent a telegram to a Los Angeles newspaper in which he stated, “. . . Would you be interested in a story that would convict Harry Dail and Dexter L. Lewis and others, and. if so what price for same ? Must be reimbursed for same because I will be a fugitive from justice tomorrow morning at 9:30." McKnight further admitted sending a postal card to Lewis in which he said, “I am afraid you are going to be sorry for not accepting those telephone charges. . . . You have made a rat out of me. I will make just as good a rat as I did a union man. ’ ’

The accomplice Burris testified for the prosecution that on several occasions he had received orders from Lewis to “go out and beat people up"; that in November, 1937, he made a trip to Delano in an automobile with the acquitted defendants King and O’Brien; that later that night they followed the automobile of a man who had spoken at a meeting in Delano and when they passed the other car he, Burris, threw a five-pound rock through its windshield. King and O’Brien denied that any such incident ever took place. Burris was also dismissed from the union on charges preferred by Lewis and shortly thereafter wrote letters to union members and officials which revealed a feeling of bitterness and animosity towards Lewis. There was also testimony that Burris had stated he had “engineered the break between the Teamsters Union in Wilmington and Local 208" and that it “was his ambition to become head of Local 208. ..."

The two accomplices, Williams and Johnson, testified they had received instructions from Lewis that “there were men that had to be ‘dumped’ . . . men who went through picket lines, C.I.O.’s and nonunion men," and that they had participated in altercations and had struck persons while working as organizers for the Teamsters’ Union. Lewis testified that these men were never employed by Local 208, and denied that he ever gave them instructions. It appears they had done some work for other locals and that they were frequently around Local 208.

In addition to the testimony of accomplices the prosecution introduced documentary evidence consisting of teletype messages and memoranda exchanged between Lewis and Dail with reference to the business of the union and labor conditions generally in the Los Angeles area. These messages and memoranda contained no reference to acts of violence and were apparently introduced in evidence for the purpose of showing the relationship between Dail and Lewis and Local 208. There was also introduced in evidence an expense item filed by one of the employees covering meals for members of a “goon squad.” It appears that a cheek was issued by Lewis covering this item. In this connection Lewis stated, and his testimony was corroborated by other witnesses, that all expense items were first submitted to the treasurer for approval and the checks were then made out by a clerk and were presented to Lewis for signature without any accompanying memoranda, and that the original expense slips and office vouchers were not attached to the checks until they were canceled and returned to the office.

The evidence on which Copelan and Belanger were convicted of simple assault is also conflicting. As to count two, the evidence shows that the prosecuting witness Calkins, a member of Local 208, had been in arrears in his dues for several months prior to October 29, 1937, and that contrary to union regulations he had been driving a truck for a company operating as a union shop. Complaint also had been made that he had attempted to compel truck drivers to patronize a cafe owned by his wife. On the day of the assault alleged in count two, Copelan, Belanger and Lewis were at the Evans Freight Lines in Los Angeles where Calkins was employed. Calkins testified that while he was talking to Lewis he was struck by Copelan, and that in the scuffle that followed Belanger joined Copelan in attacking him. Other prosecution witnesses testified to having seen Copelan and Belanger fighting or scuffling with Calkins. Copelan claimed he and Calkins had an argument about the latter being in arrears in his dues and that Calkins threatened to strike him, whereupon they exchanged blows. Belanger claimed he did not enter the affray until Calkins picked up a dating stamp and raised it above Ms head and that he then struck Calkins to cause him to let go of the stamp. Other defense witnesses corroborated the testimony of Copelan and Belanger. Lewis testified he had left the loading dock prior to the affray, and that when it was called to his attention he ordered Belanger to stop the fight.

As to count three, the evidence shows that on November 3, 1937, the prosecuting witness Norman Smith was seated in a truck near the loading platform of the Arrowhead Freight Lines, where he was employed. Belanger asked Smith to let him see his union card. Smith said he had none because he owned his own truck, and he invited Belanger to check the registration certificate on the steering wheel. According to Smith, Belanger then opened the door of the truck and hit him, and he put his feet in Belanger’s stomach and pushed him away and alighted from the truck. Smith says he was then attacked by Belanger and two or three men. Belanger testified that as he opened the truck door to look at the registration card on the steering wheel Smith kicked him in the stomach and knocked him down. According to Belanger, Smith then got out of the truck and was about to strike him again and he hit Smith in the eye. The accomplice Burris and another prosecution witness testified that Copelan struck Smith after the latter had been hit by Belanger. Copelan, on the other hand, denied taking any part in the affray, claiming he was upstairs in an office when it took place. Several witnesses testified that shortly after the fight Smith attempted to have Belanger arrested, claiming the latter had “hit him in the eye,” but made no statement about having been struck by Copelan or anyone else.

As has been been shown, the evidence relating to all three counts is conflicting. The evidence as to the first count was based largely upon the testimony of accomplices who were impeached. The reviewing court is bound, however, to view the evidence in the light most favorable to the respondent, and applying this well established principle to the record in this case, we must hold that the evidence is sufficient to support the verdict. 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].)

We turn now to a consideration of the appellants’ contentions that the trial court committed prejudicial error in giving instructions and in commenting on the evidence. Some of the instructions claimed to be erroneous are as follows:

(1) . . an agreement by persons to picket a place of business and to use in picketing large numbers of pickets for the purpose of intimidating or threatening the employers or employees in such place of business, . . . constitutes unlawful picketing, and the same is true of a boycott carried on by such means”;

(2) “. . . intimidation includes persuasion by or on behalf of a combination of persons resulting in coercion of the will by mere force of numbers”;

(3) “. . . even a simple request to do or not to do a thing made by one or more of a body of persons under circumstances calculated to convey a threatening intimidation, with a design to hinder or obstruct workmen, is unlawful intimidation, and is not less obnoxious than the use of physical force for the same purpose”;

(4) "... any action having in it the element of intimidation or coercion, or abuse, physical or verbal, or of invasion of rights of privacy, when not performed under sanctions of law or those lawfully empowered to enforce the law, is unlawful; ...”

(5) “. . . every act of speech, of gesture, or of conduct which any fairminded man may reasonably judge to be intended to convey insult, threat, or annoyance to another, or to work . . . abuse upon him, is unlawful, and any group of men pursuing by agreement such unlawful conduct when engaged in the pursuing of an act lawful in itself fall within the definition of a conspiracy by performing a lawful act in an unlawful manner.”

These instructions erroneously advised the jury that all concerted activities by combinations of workmen are illegal. The rule stated therein is plainly erroneous and contrary to that announced by this court in Shafer v. Registered Pharmacists Union, 16 Cal.2d 379 [106 P.2d 403], and McKay v. Retail Automobile Salesmen’s Local Union No. 1067, 16 Cal.2d 311 [106 P.2d 373]. The right to picket peacefully and truthfully is guaranteed by the Constitution as an incident of freedom of speech. (Carlson v. California, 310 U.S. 106 [60 S.Ct. 746, 84 L.Ed. 1104]; Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093]; A. F. of L. v. Swing, 312 U.S. 321, 325 [61 S.Ct. 568, 85 L.Ed. 855]; Hotel etc. Employees’ Local v. Wisconsin Rel. Board, 315 U.S. 437 [62 S.Ct. 706, 86 L.Ed. 946].) It cannot be said that the instructions were unrelated to the facts developed at the trial and therefore without influence upon the jury, as urged by respondent. Count one of the indictment (under which Lewis was convicted) charged a conspiracy “to commit assaults . . . and ... to obtain property of other persons . . . with consent of said other persons which was induced by the wrongful use of force and fear, ’ ’ while counts two and three (under which Copelan and Belanger were convicted) charged assaults “connected in [their] commission with Count I.” Labor controversy, jurisdictional disputes and organizational activities of rival unions were the background and framework of the charges upon which the appellants were convicted.

The record contains many references to strikes and picketing in connection with the efforts of Local 208 to obtain new members and unionize truck drivers. The efforts were directly related to the offenses charged and the erroneous instructions may have misled the jury to conclude that appellants were guilty because they had engaged in activities wrongfully characterized therein as unlawful.

It is further urged by appellants that the court in commenting on the evidence erroneously instructed the jury on matters of law as follows: (1) that the fact that the accomplice witness McKnight pleaded guilty to one count of the indictment should not discredit his testimony; (2) that the credibility of the accomplice witnesses was to be judged by the same standard as that of other witnesses. After commenting upon the testimony of the accomplice witnesses McKnight and Burris, the court instructed the jury as follows: “And in this connection, ladies and gentlemen, the credibility of all of these witnesses is to be judged by you by the same standard as that of any other witness. The fact that the witness McKnight has entered a plea of guilty to one count of the indictment or that all charges against the witness Burris have been dismissed by the Court on motion of the District Attorney, standing alone, should not discredit these witnesses or their testimony, unless, in addition thereto, there is something about their testimony or their manner of testifying or their interest in the case, or their bias or prejudice against one or any or all of the defendants which casts suspicion upon it in your minds. In the Court’s opinion the testimony of the witnesses McKnight and Burris was given in a calm and dispassionate manner; their answers were well considered, and on the face of their testimony and in their demeanor upon the witness stand, there was no evidence of animosity.”

It was clearly error for the court to instruct the jury that the fact that the witness McKnight had entered a plea of guilty to one count of the indictment (a felony) should not discredit his testimony. A witness may be impeached by showing a prior conviction of felony (Code Civ. Proc. 2051). For impeachment purposes, a plea of guilty is equivalent to proof of conviction. (People v. Jacobs, 73 Cal.App. 334, 351 [238 P. 770] ; 27 Cal.Jur. 142.) The trial court in effect advised the jury that as a matter of law McKnight’s plea of guilty, which was entered in the presence of the jury, was not to be regarded as tending to impeach him, and this was an incorrect statement of the law.

A further claim of error is that the court instructed the jury that the credibility of accomplice witnesses is to be judged by the same standard as that of other witnesses. This instruction was in direct opposition to the statutory provision that the testimony of an accomplice should be viewed with distrust. (Code Civ. Proc. see. 2061, subd. 4.) The giving of a formal instruction which stated the statutory rule did not cure the error, but instead created a serious conflict, which would normally have the effect of misleading the jury. It must be remembered that the strongest witnesses for the prosecution were the accomplices, and without their testimony the conviction could hardly have been possible. This being so, it was of the utmost importance that the jury be correctly advised as to the standards by which such testimony was to be weighed. Instead, the jury was misdirected by a clear and specific statement which in effect nullified the previous formal instruction, and no attempt was made to relate the two or explain the inconsistency. The result must inevitably have been a confusion in the jurors’' minds on a matter vital to the judgment. Inconsistent instructions have frequently been held to constitute reversible error where it was impossible to tell which of the conflicting rules was followed by the jury. (See for example: Wells v. Lloyd, 21 Cal.2d 452, 457 [132 P.2d 471]; Jolley v. Clemens, 28 Cal.App.2d 55, 73 [82 P.2d 51]; Soda v. Marriott, 118 Cal.App. 635, 643 [5 P.2d 675] ; 8 Cal.Jur. 633.)

The error was further emphasized here by reason of the fact that the erroneous instruction was given by the court in connection with its comments made on the testimony of the accomplices. The fact that a person is an accomplice in the commission of a crime goes to his credibility as a witness and to the weight of his testimony. In discussing the effect and weight of such testimony state and federal courts have on numerous occasions emphasized its questionable character. (People v. Coffey, 161 Cal. 433 [119 P. 901, 39 L.R.A.N.S. 704]; People v. Braun, 31 Cal.App.2d 593, 603 [88 P.2d 728] ; People v. Ross, 46 Cal.App.2d 385, 397 [116 P.2d 81]; Arnold V. United States (C.C.A. 10th), 94 F.2d 499; Craig v. United States (C.C.A. 9th), 81 F.2d.816, 827; Shields v. United States (C.C.A. 3rd), 17 F.2d 66, 68.) In Crawford v. United States, 212 U.S. 183, 204 [29 S.Ct. 260, 53 L.Ed. 465], the Supreme Court of the United States said with reference to the testimony of an accomplice witness that “the evidence of such a witness ought to be received with suspicion, and with the very greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses.” In 20 Am.Jur. 1087 it is said: “The facts that the testimony of accomplices is not of the most satisfactory character and that it is attended with serious infirmities are matters recognized by the decisions and are too obvious and well understood to call for exposition. Such considerations go to the credibility of the evidence, and the law requires that such testimony be closely scrutinized and accepted with caution. Indeed, it has long been the custom, both in England and in the United States, for the court not only to caution the jury as to the danger of acting upon the unsupported testimony of an accomplice, but to advise them not to convict in the absence of some corroborating evidence.” In People v. Coffey, 161 Cal. 433 [119 P. 901, 39 L.R.A.N.S. 704] at 438, the court said that at common law it was recognized that “evidence of an accomplice, coming from a tainted source, the witness being, first, an infamous man, from his own confession of guilt, and, second, a man usually testifying in the hope of favor or the expectation of immunity, was not entitled to the same consideration as the evidence of a clean man, free from infamy. Hence, it soon became the practice of the common law judges, in the wide latitude allowed to them in the instruction of their juries, to advise the latter that the testimony of an accomplice, for the reasons indicated, was to be viewed with care, caution, and suspicion (see Code Civ. Proc., sec. 2061), that the accomplice stood before them as a witness entitled to little credit, and that the surest way of establishing his credit in their eyes was for them to note whether his testimony was corroborated in any material matter by independent evidence, and that if it were so corroborated they might put faith in all that the accomplice had said ...” Section 2061, subdivision 4, was, in its present form, a part of the Code of Civil Procedure when it was enacted in 1872, and it was apparently an attempt to codify the common law.

The prosecution in support of the contention that the court here correctly stated that the credibility of accomplice witnesses was to be judged by the same standard as that of any other witness relies upon Hirshfeld v. Dana, 193 Cal. 142, 160 [223 P. 451], It was there held that subdivision 4 of section 2061 of the Code of Civil Procedure, authorizing the trial court to instruct the jury that “the testimony of an accomplice ought to be viewed with distrust ...” is unconstitutional, because it charges the jury on matters of fact, contrary to the provisions of article VI, section 19, of the state Constitution (as it then read). (See, also, People v. Northcott, 209 Cal. 639, 653 [289 P. 634, 70 A.L.R. 806].) Several decisions of this court rendered prior to the Hirshfeld case indicate that the court was not then in accord on the question whether subdivision 4 of section 2061 was unconstitutional. (See People v. Ruiz, 144 Cal. 251 [77 P. 907]; People v. Moran, 144 Cal. 48, 63 [77 P. 777]; People v. Buckley, 143 Cal. 375 [77 P. 169]; see, also, People v. Silva, 121 Cal. 668, 670 [54 P. 146].) Chief Justice Beatty expressed the minority view in People v. Ruiz, supra;at page 255, as follows: “The legislature has the undoubted power to declare what shall not be competent evidence. In the exercise of this power it might have excluded absolutely the evidence of an accomplice or the evidence of verbal admissions of a party. Having the power to exclude altogether, it has the power to admit subject to conditions or qualifications; and clause 4 merely states the qualification subject to which this kind of testimony is admissible—the condition upon which it is allowed to go to the jury at all.”

The requirement of section 1111 of the Penal Code that accomplice testimony must be corroborated is a convincing indication of the legislative intent and policy that such evidence is to be regarded as untrustworthy and not to be believed unless fortified by other evidence tending to connect a defendant with the commission of the offense charged. The power of the Legislature so to provide is not questioned and if it may thus stigmatize accomplice testimony and completely deny it credence unless corroborated, no valid reason exists why the Legislature may not declare, as it has done in subdivision 4 of section 2061, that the jury is to be instructed to view such accomplice testimony with distrust. The difference is merely one of degree. To require such an instruction on proper occasions is not to charge the jury upon matters of fact. It merely serves to state the legislative condition upon which the jury is permitted to hear that class of evidence.

The somewhat analogous situation in People v. Lucas, 16 Cal.2d 178,182 [105 P.2d 102], presented the question whether the defendant was entitled to a cautionary instruction in a sex case to the effect that “such a charge is easily made and difficult to disprove for which reason the testimony of the prosecuting witness should be examined with caution.” This court there said, “the objection ... to such an instruction, that it contains ‘statements of fact, not of law,’ would appear to have spent much of its force in view of the recent amendment to section 19 of article VI of the Constitution authorizing a trial court to comment on the facts. ...” (See, also, People v. Stangler, 18 Cal.2d 688, 694 [117 P.2d 321]; People v. Roberts, 50 Cal.App.2d 558, 569 [123 P.2d 628].) If in a case of that type a defendant is entitled to a cautionary instruction, by analogy he is entitled to a cautionary instruction in a case involving the testimony of an accomplice, particularly when, as here, the statute directs that such an instruction be given.

It has been suggested that the 1934 amendment to section 19 of article VI of the Constitution referred to in the Lucas case cannot validate or revive section 2061, subdivision 4, supra, if it were void when enacted. This does not, however, state the problem before us. We are not required to revive a statute previously declared unconstitutional for lack of constitutional authority. The real question is whether the statute was in fact void, as held in the Hirshfeld case. In our considered opinion the Hirshfeld case was based upon a misconception, and to the extent that it purported to make improper the ordinary cautionary instructions on doubtful evidence it must be overruled. The statute was never void, under our present view, and needs no “revival.” The subject of the statute—a rule of procedure—involves no problems of retroactive effect which occasionally arise when a decision declaring unconstitutionality is overruled, (See e.g., Rottschaefer on Constitutional Law (1939) 37; (1937) 37 Columb. L. Rev. 1017.) The result of our present decision is that such instructions are necessary in a proper case and the failure so to instruct may be reversible error. (See, also, People v. Weitzman, 362 Ill. 11 [198 N.E. 711, 716].)

For these reasons, therefore, it was error for the trial court under the guise of comment to instruct the jury, contrary to the statute, that the credibility of accomplice witnesses “is to be judged ... by the same standard as that of any other witness. ’ ’ An erroneous instruction on the law given to the jury by the trial court while “commenting” on the evidence is subject to challenge on the same grounds as when included among the formal instructions. As said in People v. Costello, 21 Cal.2d 760, 765 [135 P.2d 164], an erroneous instruction upon the law cannot be deemed a justifiable comment on the evidence and credibility of a witness.

The errors in the instructions concerning the credibility of accomplice witnesses were accentuated by the comments of the trial judge concerning the testimony of accomplices McKnight and Burris. The court told the jury that in its opinion their testimony was given “in a calm and dispassionate manner”; that their answers were “well considered”; and that “on the face of their testimony and in their demeanor upon the witness stand, there was no evidence of animosity.” The court made no reference to the facts that after charges were preferred by Lewis both of these witnesses were dismissed from the union, that McKnight stated under oath that he had been “mad at him since,” and that there was presented in evidence a letter written by Burris containing inflammatory accusations and embittered statements against Lewis. By such one-sided comment the court drew the attention of the jury to an asserted lack of animosity toward the defendants observable in the accomplices while testifying, without mentioning the undisputed evidence that such animosity did exist. The court also in commenting upon the conflicting statements made by the accomplice McKnight, stated to the jury that “. . . the witness McKnight admits he told an entirely different story . ... in the statement he gave shortly after the indictment was returned than the story he told you from the witness stand. . . . One circumstance you are entitled to take into consideration is the fact that he testified that at the time of his (first) statement ... he was preparing a defense to the charges, and he had no intention of pleading guilty to any of the charges, as he subsequently did.” This may have served to east doubt on the credibility of McKnight’s previous statements favorable to defendants and to invest with veracity unfavorable statements made while testifying. The trial court made slight, if any, comment on the defense evidence, but it indicated that the accomplice testimony was entitled to full credence in spite of the statutory requirement that it be viewed with distrust, and despite the fact that it was thoroughly impeached. While a trial court is not necessarily required to comment on all of the evidence, nevertheless its comment should be “temperately and fairly made. . . . Trial courts should be cautious in the exercise of this power [of comment] with a view to protecting the rights of defendants.” (People v. De Moss, 4 Cal.2d 469, 477 [50 P.2d 1031].) In the present case, however, the quoted comments standing alone would not require a reversal, but when considered in connection with the accompanying erroneous instructions relative to the credibility of accomplice witnesses they serve to accentuate and emphasize the error in those instructions.

The trial court also stated to the jury that ‘‘The defendants Lewis and Pitts (an acquitted defendant) have admitted to you from the witness stand their activities and control of the affairs of the organization and their consequent responsibility therefor. It is therefore not necessary for you to determine that responsibility, since it stands admitted, and should you find that the acts or activities of any of the other defendants constituted or amounted to criminal offenses, you would be warranted in finding the defendants Lewis and Pitts equally guilty of such offense or offenses.” Lewis admitted only that by virtue of his position he had control of the affairs of the organization but not that he was responsible for any unauthorized conduct of its members. As before stated, Lewis testified that he had never advocated the use of violence and had admonished the men against its use and his testimony in this regard was corroborated by others. The admission of control of the organization and responsibility for its affairs does not, of course, constitute an admission that a conspiracy existed or that violence was advocated. It was therefore an incorrect statement of fact for the court to tell the jury that Lewis had admitted ‘‘responsibility therefor. ” Furthermore, the latter part of the quoted statement amounted to an erroneous instruction to the jury on the law to find Lewis guilty if it found any of the other defendants guilty on any of the several charges contained in the indictment. Under this improper instruction the jury was told it could find Lewis guilty on any of the several charges even though it should fail to find the existence of a conspiracy between him and any of the other defendants to commit assaults. Such erroneous instruction served to deprive Lewis of the right to have the jury consider his individual criminal responsibility. The trial court, under the guise of comment, may not properly control the verdicts by a direction either directly or impliedly made. (People v. De Moss, supra, p. 477 ; People v. Ottey, 5 Cal.2d 714, 729 [56 P.2d 193].) People v. Eudy, 12 Cal.2d 41, 47 [82 P.2d 359], is cited by the prosecution to the effect that a trial court may express its opinion as to the guilt or innocence of a defendant. The qualification is there added, however, “provided the province of the jury is not invaded.” The court here incorrectly stated the facts, erroneously declared the law and improperly invaded the province of the jury.

It thus appears that the court misdirected the jury on matters of vital importance to the defendants. We have heretofore pointed out that the evidence is in substantial conflict, and that any serious error could under these circumstances have a prejudicial effect. The record in this case consists of approximately 6,545 pages. Much of the evidence is immaterial on this appeal since it relates to three of the counts charging assaults by means of force likely to produce great bodily injury of which defendants were acquitted. Although we have made a careful examination of the entire cause we have set forth in this opinion only so much of the evidence as appears necessary to show that it was sufficient to support the judgment, but was in substantial conflict. In considering the effect of article VI, section 4 ½ of the Constitution, “We are not substituted for the jury. We are not to determine, as an original inquiry, the question of defendant’s guilt or innocence.” (People v. O’Bryan, 165 Cal. 55, 66 [130 P. 1042]; see, also, People v. Roe, 189 Cal. 548, 561 [209 P. 560].) As stated in Tupman v. Haberkern, 208 Cal. 256, 263 [280 P. 970], “Whether the error found to be present ‘has resulted in a miscarriage of justice’ presents a question of law on the record before the court, and the purpose of the section [4 ½] was to require the court to declare as matter of law whether the error has affected the substantial rights of the party complaining against it, and not for the purpose of determining the evidentiary value of the testimony or where the preponderance of the evidence lies.”

The conclusion is inescapable that the errors in this case resulted in a miscarriage of justice within the meaning of article VI, section 4 ½ of the California Constitution.

All proceedings in this cause have permanently abated as to Bail by reason of his death pending appeal and the superior court is directed to enter its order to that effect. (People v. de St. Maurice, 166. Cal. 201, 202 [135 P. 952]; People v. Alexander, 101 Cal.App. 394, 396 [281 P. 697].) The judgments and orders denying new trials are, and each is, reversed as to appellants Lewis, Copelan and Belanger.

Carter, J., Traynor, J., and Schauer, J., concurred.