SCHAUER, J. Defendants were charged with (count I) “Conspiracy to Commit the Crime of Assault (PC 182) ” and (count II) “Assault by Means of Force Likely to Produce Great Bodily Injury (PC 245).’’ A jury found them guilty as charged. Imposition of sentence upon defendants Osslo, McFaden, and Meyer was suspended and they were granted probation. Judgments of conviction were entered against defendants Hazel, Cacio, Dempster, Dimitratos, and Tucker. Defendants’ motion for new trial was denied. Defendants appeal, respectively, from the probation orders and judgments, and from the order denying their motion for new trial. They present a multifold attack upon the orders and judgments. Defendants urge that the evidence is insufficient; that there was prejudicial error in the admission and exclusion of evidence; that the charge of conspiracy to commit the crime of assault is not a charge of a crime known to the laws of this state; that there was prejudicial mis[83]conduct of the prosecuting attorney; that the punishment imposed upon defendants Osslo, McFaden and Meyer is improper and excessive; and that the case was erroneously channeled into a particular department of the superior court. For the reasons developed in the ensuing discussion we have concluded that these contentions are without substantial merit except that one of the terms, hereinafter described, of the orders granting probation to Osslo, McFaden, and Meyer is erroneous, and that the orders should be modified by striking out the erroneous provision.
The conduct and incidents involved in this prosecution arose out of a jurisdictional dispute in San Diego County between the local Butchers’ Union and the local Retail Clerks’ Union. Preceding this dispute members of the Clerks’ Union employed in markets which stocked frozen and packaged dinners had handled the sale of such dinners. The Butchers’ Union determined that its members rather than members of the Clerks’ Union should have the handling of the frozen dinners which included a meat or poultry serving, and demanded that the markets govern their employes accordingly. The Butchers claimed “violation of contract” by the markets permitting Clerks to continue handling the dinner items and called a strike at one of the markets.
The Clerks endeavored to have the dispute settled through legal proceedings. About October 5, 1955, the secretary-treasurer of the Clerks’ local wrote “to the market operators informing them of the jurisdictional dispute and the stand the Clerks were taking.” Representatives of the Butchers and the Clerks met a few days prior to October 12 (according to one witness, prior to October 8). The secretary-treasurer of the Clerks’ local “made demand upon Mr. Osslo [who held various offices, hereinafter detailed, with the Butchers] to cause to have the merchandise in dispute at Ferguson’s market, as an example, placed back under the jurisdiction of the Clerks, or our organization would take every legal means necessary to enforce the jurisdiction.” (Italics added.) Osslo “pounded the table three times, stated he was boss of the West Coast and he would fight for jurisdiction.”
On October 18, 1955, four days before the assault of which defendants stand convicted, the Clerks filed with the National Labor Relations Board a petition “for the purpose of having the Board determine who the jurisdiction belonged to.”
In contrast to the efforts of the Clerks to settle the controversy by legal proceedings, and inferentially to carry out [84]the declaration of Osslo that “he was boss of the West Coast and he would fight for jurisdiction,” the Butchers, assertedly for the purpose of providing “observer's”' to accompany Butchers’ representatives and assist in “inspecting” markets which were permitting, or suspected of permitting, grocery clerks to sell the packaged foods, imported defendants Hazel, Cacio, Dempster, Dimitratos, and Tucker, hereinafter sometimes called the sailor defendants, from San Francisco and started calling on the markets.1 The hereinafter described brutal assault and battery upon Maurer, a business agent for the local Retail Clerks, followed.
.The evidence, pertinent portions of which are hereinafter summarized or quoted, is in some respects substantially con'-, dieting, but in every respect is ample to support the verdict's.' If the jury believed the prosecution witnesses and disbelieved the testimonies of those, defendants who took the stand, they properly could have felt that the cumulative effect of the evidence was not only sufficient, but overwhelming. Study of the record constrains us to conclude that the latter view is correct. “ The rule applicable where there is evidence, circumstantial or otherwise, that a crime has been committed and that the defendant was the perpetrator thereof, has been many times reiterated by the reviewing courts of this state as follows: The court on appeal ‘will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground’ of insufficiency of the evidence, ‘it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. ... We must assume in favor of the verdict the existence of every fact which the jury could [85]have reasonably deduced from the evidence, and then determine .whether such facts are sufficient to support the verdict.’ If- the circumstances reasonably justify the verdict' of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.” (People v. Daugherty (1953), 40 Cal.2d 876, 885 [256 P.2d 911].)
Defendants’ contentions require a rather extensivé review of the evidence in order that they may be viewed and resolved in fair perspective to the entire case.
The Evidence. James Ray Jackson, a business agent for the Butchers, testified for the prosecution as a rather reluctant witness. His testimony, read as a whole, and in the light of the entire record, leads inevitably to the inference that the sailor defendants, Dimitratos, Cacio, Tucker, Dempster, and Hazel, who were neither members of the Butchers ’ Union nor residents of San Diego, were employed by the Butchers with the expectation that they would engage in acts of violence, although in terms Jackson insisted that they were employed merely as “observers.” The substance of Jackson’s testimony is as follows:
Jackson’s duties as business manager were “to sign contracts, work on grievances, check violations” and “I do organizing . . . and any other work that is necessary to do.” During the 18 years Jankson had been a member of the Butchers, defendant Osslo had been secretary-treasurer of the San Diego local to which Jackson belonged. Osslo was president of the Western Federation of Butchers, the affiliated butchers’ unions of California; and a member of the board and executive committee of the International Butchers’ Union at the time of the assault and battery (October 22, 1955). In June, 1956, Osslo was elected vice president of the International. Membership in the Butchers in the United States was about 300,000. Defendant McFaden had been a business agent of the San Diego local since 1941 and defendant Meyer had been a business agent since 1955.
About September 8,1955, there was a strike of the Butchers at the Food Basket Market because of an asserted “violation of contract” in that certain prepared and packaged complete dinners included meat items and such packages were being handled by the Clerks in the grocery department father than by the Butchers. As a result of the strike the Food [86]Basket Market brought an injunction suit against the San Diego local of the Butchers. The court ordered that the disputed prepared dinners be taken off sale. It may be inferred that a purpose of the order was the prevention of the sort of violent altercation which, as hereinafter related, forms the basis of defendants’ conviction of assault.
Concerning the relations between the Clerks and the Butchers at the time of the Food Basket strike, Jackson testified as follows:
“Q. Now at Food Basket, . . . did you talk with the Clerks representative while you were on strike at Food Basket, by any chance ? A. Yeah, I guess we did. General conversation. . . .
“Q. Let me ask you this: Were you present at any conferences at which any of the Clerks representatives discussed the Food Basket situation with Mr. Osslo? A. Sir, I had my foot broken the day before anything like that was discussed, I believe. . . .
“Q. Do you, of your own knowledge, know whether or not any discussions were held between Mr. Osslo and representatives of the Retail Clerks Union? A. When?
“Q. After and at about the time of the Food Basket incident. A. No, sir. ... I don’t know. . . .
“Q. Now when was the contract that was in effect at Food Basket up for renewal? A. November. . . .
“Q. Yes. Now what are your functions as a business agent; just what do you do? A. My duties are to get—to sign contracts, work on grievances, check violations. ... I do organizing, work on grievances, sign contracts, and any other work that is necessary to do.”
On October 12, 1955 (a Wednesday), the Clerks struck Ferguson’s Market. Jackson and McFaden went to the market. Approximately 25 clerks were present, among them Mr. Montgomery, hereinafter mentioned as one who was attacked but succeeded in escaping serious injury in the subsequent assault of October 22, 1955. In addition to the members of the Butchers who worked at the market, defendant McFaden, and Jackson, two or three other members of the Butchers’ Union were present. The Clerks “gave us [the Butchers] some pretty good looks.” Jackson felt that these “looks” were threatening.
Discussions were had by the Butchers as to what they would do at stores where the Clerks walked out. Defendant Osslo was present at these discussions.
[87]Sailors Dimitratos and Hazel arrived in San Diego by airline from San Francisco on Saturday, October 15, 1955. On the following Monday they met with defendants McFaden and Meyer and the witness Jackson. Defendant Osslo had previously stated that Harry Lundeberg “was sending a couple of fellows down to help us out, go with us, be our observers, and see that we weren’t jumped from behind, or bothered.” “ [T]hey were to accompany us and work with us. ’ ’ There were older, unemployed members of the Butchers who could have acted as observers but they were not called upon to do so. The sailors “were going to observe and-
“Q. Observe what ? A. Observe what was going on.
“Q. What were they to do after they observed what was going on? A. To protect us and see that nobody created any trouble or violence or anything of that sort.”
The witness did not call the police for protection; he did not know whether anyone else had done so.
“Q. Were the men from San Francisco, the sailors, more proficient, to your knowledge, than the San Diego Police Department? A. Well, I don’t know. Maybe they might be for labor work. They know what to look for.
“Q. You mean that they are experienced in this type of an action, or this matter? A. What action are you talking about, sir?
“Q. Well, in coming down and being observers. You mean they were more experienced in that line of work? A. I believe they would be.
“Q. Than a police officer might be? A. I believe they would be, yes.
“Q. In what respect would they be more proficient? A. They worked in labor for a good many years. That is their job, working as laboring people.
“Q. What are they going to observe ? I am kind of interested in that. What are they going to observe that an older dues paying member [of the Butchers] couldn’t observe? A. They could observe what goes on.
“Q. I see. In other words, what that takes is a good pair of eyes? A. It takes a little brains, too.
“Q. Well, a man that has been a master craftsman and worked up to a head meat cutter would have those qualifications, wouldn’t he? A. Some might. Most of them might.
“Q. What were they to do after they observed ? Were they to make any reports ? A. Yeah.
[88]. “Q. To whom were they to report? A. I guess they would make them to our Secretary ?• -
“Q. Mr. Osslo? A. And to the Western Federation of Butchers or the State Federation of Labor.....•
, “Q. What are you looking for to observe? I am not clear on that or on these reports. Did they make any reports, let me ask you that? A. They reported on what they knew and saw.
“Q. They were oral reports, were they? A. Yes.
“Q. How often did they make the reports ?. A. I guess daily. ...
“Q. What I am interested in, Mr. Jackson, is this: . . . why, if you are looking for just observers to go around and find out what is going on, didn’t you give any preferential treatment to the local people in San Diego in other unions? A. Well, sir, not that I know of.
“Q. Here is what I want to know: why is the Sailors Union selected as the ones you are going to go to to get observers ? A. Well, I would assume that the reason is—I don’t know for sure—these fellows are out on a ship and they come back in and they have got time on their hands waiting around for another ship.
“Q. Did you check any other labor hiring halls here in town, the laborers union, the plasterers union, or- A. I didn’t.
“Q. Do you know whether or not anybody else checked any of the other labor hiring halls locally to see if there were any people available that could be employed as observers ? A. I don’t know, sir.
“Q. To your knowledge was that done? A. No, sir.”
“ [W]e had told the other labor organizations in San Diego what was going on. Indirectly that is asking for help and aid. As far as specifically asking for the loaning of a man or two men or more, I don’t know of that being done, sir.”
■ “Q. What' did Mr. Osslo say about the two men that were coming down, if anything? ... A. He said they were coming down to go around with us. . . .
“Q. What did you do when you went around to these stores and what did they do to earn this $150!00 a week plus expenses [the amount which the sailors were paid by the Butchers] ? A. They were with us. ...
“Q. Tell me what the' work was they were doing ? A. Checked the markets.
“Q. What do you do when you check a market? How did [89]they know about a violation? They are sailors, aren’t they? A. They know what they are looking for.
“Q. What were they looking for? A. A violation of our contract in the meat department.
“Q. How did they know a violation of a contract if they just flew in from San Francisco and had a short meeting with you? Is it that easy that you can become a business agent? A. As I said before, . . . they were here to go with us, act as observers and to protect us in case there might be any violence. . . .
“Q. If there was a contract violation. How would they know what the contract was? A. We would have to tell them.
“Q. You would have to tell them what was in your contract? A. Point out the items, if there is a violation on the items.
“Q. These men are sailors and here is what I am confused about, and I would think an old timer in the meat business would have been important to you. What instructions did you give these men from San Francisco that made them proficient in a short period of time to be able to observe these contract violations, if there were any ? A. The violations part of it wasn’t necessarily their objective to observe. They were sent down here, or called down here, to protect us, as I said before, and see we weren’t jumped from behind, or jumped at all.
“Q. And the services of the San Diego Police Department, which are free, weren’t ever used in that respect? ... A. I did not call the police department, no, sir. . . .
“Q. Were you in any way threatened? A. By certain gestures, yes, sir.
“Q. When were you threatened by certain gestures ? A. At Tang’s Market.
“Q. That is after Dimitratos and Hazel are with you, isn’t it? A. Yes, sir.
“Q. I am talking about before, before these men are hired what gestures were made that caused you personally to feel that you had been threatened. A. The incident at Ferguson’s. ... I was in the alley between the truck and the building when several of them walked back. . . .
“Q. What did they do? A. Actually nothing but give us a good look. . . .
“Q. That scared you? A. It could have been a threatening look, yes, sir. . . .
“Q. Well, who did you report the threatening looks you [90]got in the alley way at Ferguson’s to? A. I believe they were all reported to each other, Brother Osslo, myself and Mack and Brother Meyer.
“Q. Did you ever report those threatening looks to the police department? A. I did not, no, sir.
“Q. As a matter of fact, you weren’t even concerned with them, were you? A. Well, no, sir. . . . [After the question was read and reread] I was concerned. . . .
“Q. You didn’t report it to the police? A. There is not much to report, sir.”
“Q. . . . In the particular market how would they [Dimitratos and Hazel] know [which items were to be handled by the Butchers], just walking into the place? A. They wouldn’t necessarily. They were with me or some of the rest of us. ... ”
McFaden arranged for hotel reservations for Dimitratos and Hazel and a few days later, when the additional three sailor defendants (Cacio, Tucker and Dempster) were imported from San Francisco, arranged for their reservations.
The sailor defendants each received $150 a week plus airline transportation, hotel accommodations and expenses from the Butchers. The salary of a beginning apprentice butcher was $72 a week. The “top rate” which a journeyman butcher was paid was $102 a week. A head meat cutter received $107 a week. Jackson, as business agent, received $140 a week.
Dimitratos and Hazel attended union meetings of the Butchers. Such meetings were not open to the public but “We have visitors. Anyone working for the organization is permitted,” and frequently visitors not connected with the union were invited.
At Tang’s (sometimes called Ming’s) Market a representative of the Clerks assertedly threatened the witness Jackson by telling him that the Clerks “were taking everything that bleeds, all the red meat, everything. That is not only a threat to me, that is a threat on the organization, the way I took it. . . .
‘ ‘ Q. Did you report it to the police department ? A. No, sir.
“Q. Did you report it to Mr. Osslo? A. Yes, sir. ... I reported to McFaden and he, in turn, reported it, and Mr. Dimitratos and Mr. Hazel were there.”
At Tang’s Market one Butler, a Clerk, assertedly “displayed” a knife. Counsel asked:
“Q. Now was there any display of a knife? A. Yes, sir. . . .
‘ ‘ Q. And what was Butler doing with the knife ? A. Play[91]ing with it, fumbling it, handling it ... he [was] cleaning his fingernails with it . . .
“Q. What did Butler do with the knife when you came over . . . and were introduced to him ? A. He didn’t have the knife in his hand at that time, sir.” He had been “say twelve to fifteen feet” away when the witness saw him with the knife. Mr. Anderson, another representative of the Clerks, “came storming in,” according to the testimony of Dimitratos; the bulge of a gun was visible “On his left arm pit up in the shoulder . . . You could just about see the shape of it.” But apparently no one claimed to have actually seen a gun. The testimony of Mr. Jackson continues:
“Q. Did Mr. Anderson threaten you at all? A. Only in a way that he carried himself.
‘ ‘ Q. How did he carry himself ? A. Pushed his way through . . . the crowd, through the store.
“Q. Who did he push ? A. He didn’t push anyone. I say pushed his way through.”
When Jackson’s recollection was refreshed he admitted that he had testified before the grand jury that at Tang’s no threats were made to him or in his presence.
After the incidents at Tang’s Market, defendants Cacio, Tucker, and Dempster were also hired by the Butchers and brought from San Francisco to San Diego.
At about 11 o’clock on the morning of October 22 the five sailor defendants together with McFaden, Meyer, Jackson, and one Woodard, an International representative of the Butchers, went to Ferguson’s Market. This was the first occasion that Cacio, Dempster, and Tucker went out with the Butchers. There was a slowdown in the meat department for about 40 minutes. Ferguson’s was said to be “one of the sensitive points” in the jurisdictional dispute. The group of Butchers’ representatives accompanied by their five sailor employes then went to two other markets, in each of which they remained only a few minutes. The sailors assertedly were present “as observers, witnesses, whatever you want to call it.” The group returned to Ferguson’s Market and “started a conversation” with one of the proprietors. Standing in the market were Montgomery and Maurer. The proprietor pointed out Montgomery and Maurer as Clerks.
The testimony of various witnesses as to how many of the sailors actively participated in the ensuing assault and battery is conflicting. However, the following direct evidence supports a determination that all five of the sailor [92]defendants actively participated: These five defendants surrounded Clerks Montgomery and Maurer and some of the defendants stomped on Montgomery’s and Maurer’s feet. “Dimitratos and Hazel attempt[ed] to get Montgomery, but he . . . [though pursued] got away and they stepped right back out . . . Maurer couldn’t get . . . past the customers because of a railing and a bunch of pushcarts . . . and he was being pursued . . . until two men got hold of him and held him ...” Cacio struck Maurer in the stomach. Dempster and Tucker pinned Maurer’s arms to his sides. “Dimitratos judo chopped him terribly, fifteen or twenty shots,” and “Hazel was bombing in with his fists and with judo chops.” Maurer was beaten and kicked. “ [W]hen they let go and dropped him to the floor he was in kind of a hulk lying on his side. That is when Cacio used the boots on him. . . . Kicked him in the back twice and then he flopped over on his back and he was kicked, I think, right in the side terribly hard.” The witness then “Checked to see if the police were called, checked to see if the ambulance had been called.”
Defendants’ argument that there is no “credible” evidence that Dempster, Dimitratos, and Hazel participated in the assault is obviously completely devoid of merit when presented to a reviewing court. Such argument goes to the weight of the evidence, and resolution of the conflicting evidence is for the trier of fact. (People v. Daugherty (1953), supra, 40 Cal.2d 876, 885.)
McFaden, Meyer, Jackson, Woodard, and the five sailor defendants had gone to Ferguson’s Market in two cars; some of the Butchers and some of the sailors were in each car. When they fled from the market after the assault and battery, the sailors left in one car and the Butchers left in the other car.
A cashier at the market had obtained the license number of the car in which the sailors fled. A boy also attempted to write down the license number but one of the defendants snatched it from the boy’s hand. Police officers, immediately notified of the license number, stopped the ear, arrested the sailors, took them to the police station, and questioned them.
Defendant Dempster stated to the police that although he had been at Ferguson’s Market he knew nothing about a fight there. He also falsely denied that he had any connection with the Butchers. He stated that he had come from San Francisco on a vacation.
Defendant Tucker at first refused to answer police questions [93]about whether he had been at Ferguson’s Market. He stated that he had come to San Diego to do some drinking and to visit Tia Juana. In a subsequent conversation with the police Tucker stated that he had been at Ferguson’s Market and that there had been a fight but denied that he or his friends were involved in the fight. He also falsely denied that the Butchers had hired him.
Defendant Dimitratos stated to the officers that he had come to San Diego for a vacation; that neither he nor the group he was with were involved in the fight to his knowledge. On the witness stand he admitted prior conviction of felony and that he made false statements to the officers.
Defendant Caeio told the officers that he had been drinking; that he vaguely remembered being hit or kicked, but that he did not remember hitting anyone. He denied knowing who Jackson and defendant McFaden were and also falsely denied that he was employed by the Butchers.
Defendant Hazel told the officers that he was in San Diego on a vacation and had no interest in unions; that he and defendant Dempster had gone into Ferguson’s Market to buy cough drops; that he knew nothing of any fight; and that he did not know McFaden or Jackson.
On November 27, 1955, defendant Meyer told a police officer that he had not been at Ferguson’s Market on October 22.
The foregoing statements of defendants to the officers concerned matters which were within the defendants’ own knowledge, they related materially to the issue of their guilt or innocence of the offenses of which they now stand convicted, and they were manifestly false through deliberate and willful intent. Such falsifications cogently evidence consciousness of guilt and suggest that there is no honest explanation for incriminating circumstances, and thus are admissions of guilt. (People v. Darrow (1931), 212 Cal. 167, 177 [1] [298 P. 1] ; People v. Tolson (1952), 109 Cal.App.2d 579, 581 [2] [241 P.2d 32]; People v. Farrell (1951), 107 Cal.App.2d 25, 29 [2] [236 P.2d 424]; see also People v. Wayne (1953), 41 Cal.2d 814, 822-823 [4, 5] [264 P.2d 547] ; concurring opinion of Mr. Justice Traynor in People v. Albertson (1944), 23 Cal.2d 550, 581-582 [147 P.2d 7].)
At the trial defendants Hazel, Dimitratos, Caeio, and Dempster testified. Defendants Osslo, McFaden, Meyer, and Tucker did not take the stand.
[94]The Butchers paid bail bond fees of $4,500 for the sailor defendants. They paid $10,000 to a private investigator for ati investigation of this matter.
It must be borne in mind that the jurors not only heard the evidence which has been summarized but also had the benefit of observing the defendants and the witnesses from day to day during the trial, and that the record shows the receipt in evidence of 59 exhibits. These exhibits include pictures of the scene of the assault, records of telephone calls among the defendants, and records of expenditures of the Butchers on behalf of and to the sailor defendants.
Defendants do not dispute that the overt acts charged in the conspiracy count of the indictment were proved.2 But they urge that it does not appear that these overt acts were a part of a conspiracy. It is true that there is no direct evidence of a conspiracy: all the direct evidence bearing on the question is to the effect that the defendants who actually participated in the assault and battery had been instructed to avoid the use of violence. But “A conspiracy can generally be established only by circumstantial evidence. It is not often that the direct fact of a common unlawful design can be proved other than by the establishment of independent facts bearing on such design.” (People v. Robinson (1954), 43 Cal.2d 132, 136 [1] [271 P.2d 865] ; People v. Steccone (1950), 36 Cal.2d 234, 237-238 [2, 3] [223 P.2d 17] ; cases [95]collected in 5 McKinney’s New Calif. Digest, Conspiracy, § 23.)
Undisputed evidence establishes the following facts: After the jurisdictional dispute between the Butchers and the Clerks began, and prior to the assault here, prosecution witness Jackson and defendants Osslo, McFaden, and Meyer, and representatives of the Butchers, met with representatives of the Clerks; Osslo said that the Butchers were going to “show” the Clerks; he said that he was “top man” on the west coast and “that was it.” Anticipating violence—assertedly that representatives of the Butchers would be “jumped” by the Clerks—Osslo, through the Sailors Union of the Pacific, imported and employed the five sailor defendants, and defendants McFaden and Meyer assented to their employment. Dimitratos, Hazel, Tucker, and Dempster had been members of the Sailors Union of the Pacific for a number of years, and Cacio, a Teamster, had sailed in the Merchant Marine. Members of the Sailors Union of the Pacific had participated in other labor disputes to which that union was not a party and had committed an assault and battery in connection with one such dispute.
It is a reasonable inference that Osslo, McFaden, and Meyer, who had been actively and extensively engaged in union affairs, knew of such participation and assault and battery. Pretending concern for their own safety, but never asking police protection, Osslo, with the assent and aid of McFaden and Meyer, 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, and agreed 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.”
Admission and Rejection of Evidence. Defendants urge that it was prejudicial error to admit evidence that members of the Sailors Union of the Pacific participated in other labor disputes to which that union was not a party, and that some of such members (not the defendants here) were guilty of assault and battery in connection with their partiei[96]pation in such a dispute. This evidence, in the light of the other circumstances, including the prior activities of Osslo, McFaden, and. Meyer, was properly admitted as tending to show that the last "named defendants contemplated that the employment of the'sailor defendants probably would result in acts of violence by the latter defendants.
Evidence was received concerning fights, unconnected with union activities, in 1951 involving Dimitratos and in 1952 involving Dimitratos and Dempster. The evidence was expressly received as to the conspiracy charge only. The trial judge so instructed the jury at the time it was admitted. He further then instructed them that if they believed the evidence “it would only tend to show the characteristics of a particular defendant in this case, and if that characteristic goes to the offense and if a conspiracy is shown, it would be binding on all the defendants so far as the conspiracy count is concerned.” The theory on which this evidence was received is erroneous. That Osslo, with McFaden and Meyer, employed persons who had previously participated in fights unconnected with union activity does not tend to show that those persons were hired with the expectation that they would commit assaults connected with union activity, for there is no showing that Osslo, McFaden, or Meyer knew of the 1951 and 1952 altercations. However, in view of the ample evidence that Dimitratos and Dempster participated in the assault and battery here material, and in the light of the circumstances surrounding their importation and employment, it does not appear that the jury could have been misled by evidence that they had been involved in other altercations.
Defendants complain of the admission of evidence of many telephone calls between the defendants and other members of their organizations. This evidence was properly received to show defendants’ association; that that association was criminal is shown by the other evidence, viewed as a whole.
Defendants complain of the admission in evidence of the testimony of a police officer concerning the arrest of Clerks Anderson and Weathers on November 1, 1955, after the assault of which defendants were convicted. This testimony was as follows: Defendant Osslo told the officer that his life had been threatened by Anderson. The officer located Anderson and Weathers was with him. At the officer’s request Anderson and Weathers accompanied the officer to the police station. The district attorney, after deputies examined an [97]affidavit furnished by the Butchers on which their charge was based, refused to take action in the matter. The city prosecutor filed charges against Anderson, but they were dismissed. 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.
Defendants complain that the trial judge refused to permit Jackson to testify that on October 13, 1955, defendant McFaden reported to Jackson and defendant Osslo that he had been frightened by a group of Clerks at Ferguson’s Market. This testimony was relevant to the purpose of the employment of the sailor defendants and should have been admitted, but in the light of the entire record its exclusion certainly did not prejudice defendants.
The Crime of Conspiracy to Commit Assault. Defendants urge that the charge of “Conspiracy to Commit the Crime of Assault (PC 182) ” is not a charge of a crime under the laws of this state because no statute prescribes a punishment for such a crime. Section 182 of the Penal Code provides in material part:
“If two or more persons conspire:
“1. To commit any crime. [Subdivisions 2 through 6 enumerate specified objects of criminal conspiracy.] . . .
“They are punishable as follows: [The next three paragraphs prescribe the punishment for conspiracy to commit crimes against certain officials, for conspiracy to commit any other felony, and for conspiracy to commit two or more felonies which have different punishments.] . . .
“When they conspire to do any of the other acts described in this section they shall be punishable by imprisonment in the county jail for not more than one year, or in the State prison for not more than three years, or by a fine not exceeding five thousand dollars ($5,000) or both.”
According to defendants, conspiracy to commit a misdemeanor assault is not one of the acts “described in this section.” But, as defendants concede, it was held in [98]Doble v. Superior Court (1925), 197 Cal. 556, 565 [2] [241 P. 852] (where the question was whether section 182 of the Penal Code provided punishment for a conspiracy to violate the Corporate Securities Act), that “it was the legislative intention that the words ‘any crime’ should include all crimes—whether felonies or misdemeanors—which are known to the laws of this state and whether defined and made punishable by the Penal Code or by any other law or statute of this state,” and (p. 566 [5] of 197 Cal.) “the words ‘any of the other acts described in this section’ were meant to, and do in fact, include all other conspiracies to commit crimes or acts prohibited by the section [182] regardless of whether they are denounced by subdivision 1 or any other subdivision thereof.” We conclude that the Doble case is applicable here.
Misconduct of the District Attorney. Certain specifications of misconduct of the prosecuting attorney, hereinafter discussed, present the most nearly substantial basis for attacking the verdicts, but the evidence so overwhelmingly supports the implied findings that it does not appear reasonable to believe that the misconduct was a contributing factor in the jury’s arriving at such verdicts.
Defendants complain of a press release of the prosecuting attorney which was published before trial. This press release stated that the defendants were attempting to delay trial. In this connection the record indicates that on the day the case was to have gone to trial in the regular criminal department (Department 4), that department was engaged in a trial. The presiding judge in Department 2 was willing to select a jury to be used for actual trial in Department 4 and for that purpose the case was transferred from Department 4 to Department 2. Defense counsel announced defendants’ willingness to be tried in Department 2, either with or without a jury, but objected to having a jury selected by one judge and then having the actual trial proceed before another judge. The case was thereafter continued in Department 2 from time to time for a week until Department 4 was available for selection of the jury and further trial. The press release to the effect that defendants were attempting to delay the trial appears unfair; defendants were merely objecting, as they had a right to do, regardless of whether their objection was or was not meritorious, to the procedure (described by the presiding judge as “standard procedure in this County”) of having a jury selected by one judge and the actual trial conducted by another judge. However, it does [99]not appear that the newspaper statement prejudiced defendants in the eyes of the jury which tried their ease. The trial judge, in accord with the request of defendants’ counsel, specifically admonished the jurors to pay no attention to this article and generally admonished them to pay no attention to newspaper articles.
During the voir dire examination of the prospective jurors the prosecuting attorney asked such questions as, “You don’t believe that might makes right?,” “And do you feel that a person, because he is a member of a labor union, deserves to get beat up once in a while?,” and “You wouldn’t permit sympathy or the feeling to ‘let’s give him another chance’ to influence your decision in this matter?” These questions, of which defendants complain, were not improper; they were designed to elicit relevant information concerning the prospective jurors’ state of mind. The question, “You lmow a clerk was beaten?,” of which defendants complain, was not in the circumstances improper and certainly could not be prejudicial; the fact was indubitably established and it concerned the very subject of the assault charge which the jurors were being selected to try. Other questions complained of by defendants need not here be quoted; they were either proper or not prejudicial.
Complaint is made of the following matters in the prosecuting attorney’s opening statement: The prosecuting attorney said, “Mr. Max J. Osslo was a member of the 1955 Grand Jury that returned the indictment.” Defense counsel, moving to strike the statement, said, “Although everybody knows that, it is incompetent, irrelevant and immaterial. ’ ’ In view of the concession that “everybody knows that” it does not appear that the mention of the fact before the jury could have prejudiced defendants.
The prosecuting attorney stated at some length details concerning the secretary-treasurer of another Butchers’ local being “worried about Osslo and worried about goons.” Evidence concerning this matter was subsequently excluded. It does not appear that the reference to the matter could have prejudiced defendants. This and other references to “goons” by the prosecuting attorney were no more improper, in the light of the evidence developed by the prosecution, than would be a reference to “thieves” in a ease in which defendants were on trial for larceny.
The trial judge instructed the jury before the taking of evidence began, as well as at the close of the case. In the [100]course of Ms preliminary instruction he commenced to read an instruction concerning assault with a deadly weapon which the prosecuting attorney had incorrectly included in his requested instructions. The judge immediately stopped reading and asked the prosecuting attorney if it was his contention that a deadly weapon was used. The attorney answered, “No. By means of force,” but then said, “A prize fighter is a weapon?” This remark or query was improper, as was the request for an instruction concerning assault with a deadly weapon. But these incidents, not persisted in before the jury, do not appear to have been prejudicial.
Defendants complain that during the course of trial the prosecution brought into the courtroom and the sight of the jury a board on which were pictures referred to by counsel as “rogue’s gallery” photographs of the defendants, made at the time of their arrest. The court declined to permit the use of these photographs in evidence. It is defendants’ position that the prosecution, knowing that the photographs were improper, brought them into the courtroom in a manner such that the jury saw them and were prejudiced. The record does not disclose that the jury saw these photographs clearly or at length, but only that there was a dispute between prosecution and defense counsel as to whether they could readily have been seen by the jury. In the circumstances, even assuming that the jury did see the photographs, it is not shown that defendants were harmed. The jury were clearly and repeatedly instructed that they must determine the facts from the evidence produced in court, and that they must not consider any offer of evidence which was rejected by the court.
Objection was made and sustained to two questions of the prosecution as to whether Mr. Lundeberg supplied “strong arm men” for use in labor disputes. The use of the term “strong arm men,” in the light of the evidence of circumstances under which the sailor defendants were employed by the Butchers, appears more realistic than prejudicial. In a pretrial statement of defendant Osslo in connection with his motion to quash the indictment it is admitted that “Osslo turned to Harry Lundeberg for help. This procedure in labor circles is not considered unusual. The mere presence of some formidable appearing men to accompany his business representatives he felt both would ‘offset the pressure’ and reduce the possibility of ‘designs of injury.’ ”
A witness testified that a person whom she had seen [101]at the time of the assault “is the second gentleman,” indicating the defendant Cacio. The prosecuting attorney said, “I object to the use of the word ‘gentleman.’ ” In contrast to what occurred in People v. Williams (1942), 55 Cal.App.2d 696, 700-702 [131 P.2d 851], the trial judge here immediately rebuked the prosecuting attorney and admonished the jury to disregard his remark. In the circumstances, the rebuke and admonishment appear sufficient to cure any harm which might have resulted from the prosecuting attorney's highly improper remark, and the Williams ease is not authority to the contrary.
A police officer testified that he saw two of the sailor defendants in Osslo's office. The prosecuting attorney asked, “As a matter of fact, if you hadn’t seen them in Osslo’s office you would have run them out of town ? ’ ’ This question followed the officer’s testimony that “I didn’t like á couple of big, husky men walking around as bodyguards and gave the appearance of being toughs of the worst sort.” Defense counsel objected that the prosecuting attorney’s question was misconduct and the trial judge said, “That is uncalled for, Mr. O’Laughlin [the prosecuting attorney]. Don’t repeat it. Proceed.” It does not appear, in the light of the trial judge’s rebuke, and of the facts that the jurors had ample opportunity to determine from personal observation whether the defendants were “big, husky men,” and were admonished that they must decide the issues of fact on the evidence before them, not upon remarks of counsel, that the improper question was prejudicial.
The prosecuting attorney asked defendant Dimitratos, when Dimitratos was testifying, “As a matter of fact, any time Lundeberg gets in any type of dispute that he is out for a jurisdictional grab it is the old Communist slogan he uses-.” Defense counsel interrupted with an objection and the trial judge sustained the objection and directed the jury to “disregard it.” In the circumstances the interrupted, improper question does not appear to have been prejudicial.
Twice defense counsel objected to the prosecuting attorney’s “yelling” at the defendant Cacio while Cacio was being cross-examined. On each occasion the trial judge replied that the prosecuting attorney could use any tone of voice which he wished to use. Although conceivably there could be circumstances under which the court’s ruling might be questionable, it is not shown that the asserted “yelling” intimidated the witness or harmed defendants. Hence, we [102]cannot determine that the ruling was either erroneous or prejudicial.
In closing argument the prosecuting attorney referred to a case in which “a man died in the gas chamber” because of a battery, assertedly similar to that administered to the clerk Maurer by the sailor defendants, which resulted in the death of a woman. The judge promptly admonished the prosecuting attorney to “Confine yourself to this ease.” It does not appear that the defendants were harmed by the reference to the homicide case.
Defendants complain of the reference of the prosecuting attorney to Mr. Lundeberg and Mr. Jackson as “unindieted co-conspirators.” The reference, although unfair to those gentlemen in the sense that they were not before the court and thus were not in a position to answer the charge, could not have been prejudicial to the defendants. It suggested only that entirely tenable view of the evidence which was taken by the prosecuting attorney and which we must presume was taken by the jury. Hence it did not constitute misconduct.
The prosecuting attorney in argument stated, “Meyer is the finger man.” We have discovered no evidence to this effect. It appears that any prejudicial effect of the reference was corrected by the trial judge’s prompt admonition that “The jury will remember the evidence. ... [I]f the evidence isn’t there the inference isn’t there and they will disregard it.”
It is to be noted that the prosecuting attorney at the beginning of his argument said, “what I am about to say is not evidence and if, in any way your version of the evidence is different than mine, you please take your own version of it.” And the judge clearly and repeatedly instructed the jury that they were to decide the case on the basis of the evidence and further clearly instructed them that arguments of counsel were not evidence.3
Defendants object to statements in argument of the prosecuting attorney that Mr. Lundeberg was “a bed fellow [103]of Harry Bridges,” that “It is two per cent his [Lundeherg’s] fight against Communism and ninety eight per cent his grab for jurisdictional power,” and other similar statements. These statements were made in reply to defense counsel’s argument that “The Sailors Union was the only thing that stood between complete Communist control of the Maritime industry since 1935 and Harry Lundeberg personally was responsible for that on every occasion. He held that Sailors Union right and the Sailors Union had to fight in order to hold itself to keep from coming under the Bridges’ control, as every other Maritime Union did.” In the circumstances the statements of the prosecution were not prejudicial.
The Conditions of Probation. Defendants argue that the conditions of probation exceeded the trial judge’s power by reason of the provision that defendants Osslo, McFaden, and Meyer shall not, during the 10-year probationary period, hold any union position or receive remuneration from any union. However, since it could be and presumably was found that these defendants are guilty of crimes growing out of union activities, it appears not improper that restrictions be placed upon such activities as a condition of probation.
The granting of probation is entirely within the sound discretion of the trial court; a defendant has no right to probation; he does have the right, if he feels that the terms of probation are more harsh than the sentence imposed by law, to refuse probation and undergo such sentence. (People v. Frank (1949), 94 Cal.App.2d 740, 741-742 [211 P.2d 350].) In the Frank case the defendant, a pediatrician, was convicted of contributing to the delinquency of a minor by a lewd act committed on a child in a plaster cast. It was held proper that the terms of his probation include the requirement that defendant not practice medicine during the five years he was on probation. The court specifically rejected the argument, similar to the argument of defendants Osslo, McFaden, and Meyer here, that the condition of probation was unreasonable and beyond the power of the court.
Defendants are mistaken in their argument that the trial judge imposed on Osslo, McFaden, and Meyer county jail sentences and independently of such sentences granted periods of probation. Each probation order expressly suspends imposition of sentence and provides that probation is granted on the condition, among others, that defendant spend a designated number of months in the county jail.
[104]It does not appear that the trial judge had power to impose the following terms in his probation orders: “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 ease. ’ ’ An individual judge (as distinguished from a court) is not empowered to retain jurisdiction of a cause. The cause is before the court, not the individual judge of that court, and the jurisdiction which the judge exercises is the jurisdiction of the court, not of the judge. Rules of court which provide that post-trial proceedings in a cause shall be heard by the judge who tried the matter are entirely proper, but the individual judge cannot order that such proceedings must be heard by him.
The Asserted Channeling of the Case into a Particular Department. By stipulation this case was set for trial on July 9, 1956. All proceedings up to and including the making of the stipulation were had in Department 4 (Judge John A. Hewicker). The minutes of Department 4 show that on July 9 the cause was transferred to Department 2 (Presiding Judge Turrentine) for trial. Actually, the reporter’s transcript shows, the transfer was for the purpose of selecting a jury only. The reporter’s transcript further shows that, as already indicated, defense counsel refused to accede to the procedure of having a jury selected in Department 2 while the trial then pending in Department 4 was being completed and then having the cause transferred to Department 4 for completion of trial. Defense counsel moved that the cause be assigned to any available department for immediate trial. The court stated, “Motion granted, and the first court available will be Judge Hewicker, the regular criminal department. . . . [T]he case will be continued until two o’clock at which time the defendants, and all attorneys, and the jury is asked to return. If we are not ready then, why we will have to have continuances half a day at a time until we have a court available to try this case. I can’t tell you exactly when that will be, but the ease in Judge Hewicker’s court may terminate at any moment ... or it may take the rest of the week, but there is no alternative to that procedure ...” Defense counsel objected to the continuance “on the ground that there are courts available and that there is going to be a civil trial to be started in one of the Superior Courts this morning, and a criminal case has precedence over a criminal [sic] case.” The court said, “Objection overruled.”
[105]The cause was continued two or three times each day until July 16 when selection of a jury began in Department 4 before Judge Hewieker. On numerous occasions defense counsel objected to the continuances, pointed out that civil eases were commenced in other departments and that a jury had been selected in another department to try a criminal case which was originally set for trial later than defendants’ case, and urged that the continuances were “part of the plan to channel a case into a particular court.”
Judge Turrentine, in overruling one of defense counsel’s objections to a continuance, explained at some length the reasons for the continuances. He said that “the ease was originally pending in that Department [4] and was to go to trial there and it was only sent to this Department by Judge Hewieker for the purpose of getting a jury to try the ease. . . . [I]n view of the objection to me trying—to me selecting a jury the only thing that could logically happen would be that it would go back to the Department where it originated and should be because Department 4 is the Presiding Criminal Department, and I am complying with the suggestion and request of Judge Hewieker.”
Judge Turrentine further stated that the selection of a jury by a department other than the one in which the case was to be tried “is almost routine in this County. So we assumed . . . that on July 9th we would proceed in this Department to select the jury in order to give you a speedy trial and this was done at the request and suggestion of Judge Hewieker. It necessitated a very considerable rearrangement of business in this County to do it. We have four regular judges either away or assigned to duty on the District Court of Appeal, and, of course, we have the rather long trial in Department 4 going on. It is our general policy in criminal eases to give preference to the trial of those criminals who are incarcerated in jail so if they are deprived of their liberty unlawfully they may have their day in court and get out in preference to those who have the financial means to make bail . . . [Defendants were at liberty on bail.] If it were not for the fact that we had members of the San Diego County Bar who were willing to serve as Judges pro tern without compensation to themselves we would just simply be bogged down with nothing but a number of these short jury trials where the defendants are in jail awaiting trial.”
The judge went on to explain the condition of the calendar in various departments, pointing out that a jury trial of a [106]person confined as mentally ill was being had in one department, that the juvenile calendar was “very congested,” and that “today we have three criminal trials going on out of five regular judges, one regular and two pro tems ...”
Defendants contend that the continuance of the case after the date set for trial, when civil eases were being tried in other departments, was in violation of section 681a of the Penal Code (“The welfare of the people of the state of California requires that all proceedings in criminal cases shall be heard and determined at the earliest possible time. It shall be the duty of all courts and judicial officers and of all district attorneys to expedite the hearing and determination of all such eases and proceedings to the greatest degree that is consistent with the ends of justice”) and the provision of section 1050 of that code that “Criminal cases shall be given precedence over all civil matters and proceedings.”
It does not appear that the policy of sections 681a and 1050 was disregarded. Judge Turrentine’s explanation of the condition of the calendar shows that defendants were not being deprived of precedence over civil cases for any arbitrary reason and that the continuances to enable trial in Department 4 were not made for the purpose of improperly channeling the ease into that department. Rather, it appears that the orderly administration of a crowded calendar required the continuances to enable trial of the case in a proper department. The precedence to which criminal eases are entitled is not of such an absolute and overriding character that the system of having separate departments for civil and criminal matters must be abandoned. And certainly it does not appear, as defendants suggest, that the “channeling” of this cause to Department 4, where it had been from its inception, was an improper channeling to a particular judge as an individual rather than as the judge of the presiding criminal department.
For the reasons above stated, the provisions by which the individual judge purported to retain jurisdiction of the cause are stricken from the orders granting probation. In all other respects such orders, and the judgments and order denying a new trial, are affirmed.
Shenk, J., Spence, J., and McComb, J., concurred.
The Clerks, too, had persons from elsewhere than San Diego assisting them in connection with the jurisdictional dispute, hut they were members of the Retail Clerks’ Union and they did not become involved in violence. “They accompanied the local business agents- here on field trips to observe where the merchandise was located in the markets that was in dispute and to assist- in making diagrams of the stores, also to assist the local men-in getting petitions signed to submit to the. National Labor Relations Board.”
Those acts are as follows:
No. 1. That defendant Osslo had a conversation with Harry Lundeberg on October 13, 1955.
No. 2. That Dimitratos and Hazel came to San Diego on October 15, 1955.
No. 3. That McFaden, at the request of Osslo, made reservations for three rooms about October 14.
No. 4. That McFaden, Dimitratos, and Hazel met on October 15.
No. 5. That Hazel and Dimitratos met at the Butchers’ local on October 17.
No. 6. That Dimitratos, Hazel, Meyer and other representatives of the Butchers met at Tang’s Market on October 18.
No. 7. That Dempster, Oaeio, and Tucker met in San Diego on October 21.
No. 8. That Dempster, Oaeio, Tucker, Dimitratos, and Hazel met in San Diego on October 21.
No. 9. That Dimitratos, Oaeio, Tucker, Dempster, and Hazel accompanied McFaden and Meyer to Ferguson’s Market on October 22.
No. 10. That Dempster, Oaeio, Tucker, Dimitratos, and Hazel were in an automobile leased by the Butchers on October 22.
Nos. 11 through 15. That Osslo or McFadden agreed to pay each of the sailor defendants a weekly salary and expenses.
The judge told the jury, among other things, that “it is up to you to determine what the facts are from the evidence introduced at the trial. . . . You are to be governed solely by the evidence introduced in this trial and the law as stated to you by me. . . . [Y]ou must determine the facts from the evidence produced here in court,” and “argument of counsel on both sides is not evidence. . . . Whatever they say about the evidence, if you find that to be true, why you follow it. If whatever either side said about the evidence doesn’t correspond with your views as you heard the evidence as it came in, why you disregard any comments they made and follow the evidence as you see it.”