I dissent.
I am in full accord with the views expressed by Mr. Justice Schauer in his dissenting opinion in this case. The quoted statements of the trial judge to the jury were obviously intended to and did influence the jury in the rendition of its verdict. The unmistakable effect of these statements was to deny defendant the free, untrammeled and unbiased determination of the jury as to punishment to which defendant was entitled under the law of this state. As forcibly pointed out in said dissenting opinion, the majority of this court has reversed judgments based upon jury verdicts in civil cases where the alleged error was infinitesimal compared to that shown by the record in this case. This is particularly true where the alleged error consisted of comments or statements of the trial judge which may have affected the determination reached by the jury.
In Sanguinetti v. Moore Dry Dock Co., 36 Cal.2d 812 [228 P.2d 557], I could see no error, much less prejudicial misconduct, on the part of either the trial judge or counsel for plaintiff which in any manner influenced the verdict in that ease (see my dissent, p. 823 et seq.), but a majority of this court nevertheless reversed a judgment for plaintiff which was obviously supported by substantial evidence because plaintiff’s counsel, in the presence of the jury, moved to amend the prayer of plaintiff’s complaint by increasing the demand for damages from $50,000 to $75,000. The court did not rule on this motion in the presence of the jury, but later granted it and instructed the jury that it could not return a verdict in *593excess of the sum of $75,000, the amount demanded in the complaint. The jury returned a verdict for $75,000 and a majority of this court reversed a judgment entered thereon on the sole ground that the foregoing occurrences constituted prejudicial error. I did not agree with that holding. Here, however, the prejudicial misconduct of the trial judge is so glaring that its adverse effect upon the jury cannot be denied.
To my mind it is exceedingly unfortunate when a judgment in a criminal case is upheld in the face of obvious and glaring prejudicial misconduct on the part of a trial judge, or prosecuting attorney with the judge’s approval, as such a situation casts grave doubt upon the fairness of the trial and may amount to a violation of the due process clauses of both the state and federal Constitutions. Such was the situation in the recent ease of People v. Osslo, ante, p. 75 [323 P.2d 397] (see dissenting opinion, ante, p. 106), where the same trial judge presided as in the case at bar.
It is my considered opinion that the administration of justive is defeated in many cases where a trial judge throws the weight of his position against a litigant by conduct or statements designed to influence the jury against such litigant. While jurors do not always respond to such conduct, there is a tendency for them to do so, which has the effect of depriving the litigant of his right to a fair trial before a jury. Unless this court assumes the burden of correcting situations of this character when called to its attention, we might just as well abolish our jury system.
I would reverse the judgment imposing the death penalty and grant defendant a new trial on the issue of punishment.
Appellant’s petition for a rehearing was denied July 30, 1958. Carter, J., Schauer, J., and McComb, J., were of the opinion that the petition should be granted.