I dissent.
This case demonstrates, more than any other which has come under my observation, the abuse of our conspiracy stat*107ute. While the statute has a salutary objective, it may become a weapon in the hands of an overzealous prosecutor to make felonies out of mere misdemeanors and thus inflict great injustice upon people who are entirely innocent of any crime, but who may have had some connection or association with a person who has committed a misdemeanor. Under the holding of the majority in this case, it would be possible to obtain a felony conviction against all five occupants of an automobile for illegal parking, a misdemeanor, for which the driver of the car was entirely responsible. Take the case where a city ordinance prohibits parking within 10 feet of a fire plug—a car with five persons in it parks within the restricted zone. A police officer arrests all five occupants on the theory that the illegal parking was the result of an agreement between them— conspiracy to violate the parking ordinance. Under the majority holding here, the mere presence of the five in the automobile would give rise to a permissible inference of conspiracy to violate the parking ordinance and all five could be prosecuted and convicted of conspiracy which is a felony under section 182 of the Penal Code (People v. Malotte, 46 Cal.2d 59 [292 P.2d 517]) and all five could be sentenced to a state prison even in the face of their uneontradieted testimony that none of them except the driver had anything to do or say about the parking of the car. Such an outrageous travesty would be no greater than the prosecution, verdicts, judgments, sentences and affirmance of the judgments in this case. The foregoing statement is based upon the undeniable fact that there is not one word of testimony or any evidence in the record in this case of any agreement or understanding between any of the defendants that any crime would be committed by any defendant or that any conspiracy existed between them to violate any law, and there is no basis whatever for an inference that such a conspiracy existed.
The majority has quoted extensively from the testimony of some of the witnesses, but in all of this testimony there is not even a suggestion that there was an agreement or understanding between the defendants that any of them would commit a crime or that there was a plan, design or scheme to violate any law in any respect whatsoever, and the majority opinion does not refer to any evidence in the record which even remotely gives rise to an inference that a conspiracy existed between the defendants to violate a law.
True, a misdemeanor may have been committed by one or more of the defendants, but it requires something more than *108legal reasoning or judicial interpretation to find evidence of a conspiracy between the defendants that any defendant should engage in the commission of an unlawful act.
The record shows that a jurisdictional dispute existed in San Diego County between the local butchers’ union and the local retail clerks’ union. The butchers’ union was of the opinion that its members should handle certain merchandise such as frozen TV dinners rather than members of the clerks’ union. Defendant Osslo was secretary-treasurer of the butchers’ local, McFaden and Meyer were business agents for the same union. Four of the other five defendants were members of the Sailors Union of the Pacific and Caeio was a member of the Teamsters Union who had come from San Francisco to San Diego to accompany and protect the business agents of the butchers’ local. The five defendants arrived in San Diego several days prior to October 22, 1955 and were in contact with Osslo, McFaden and Meyer; they attended a butchers’ union meeting on October 21st. The record shows that these five defendants were paid weekly by the butchers.
The altercation out of which this case arose took place in Ferguson’s Market in Chula Vista. The facts giving rise to the fight in which one Maurer, a retail clerk, was struck and injured are hotly disputed and present a very close question.
Defendants’ major contentions are these:
(1) That there is no evidence that they conspired to commit assault;
(2) That the district attorney was guilty of prejudicial misconduct in numerous instances ;
(3) That the court committed prejudicial error in the admission and exclusion of certain evidence;
(4) That the punishment imposed as to defendants Osslo, McFaden and Meyer is improper, excessive and unauthorized under the laws of the state and constitutes cruel and unusual punishment in violation of the Constitution.
The evidence, fairly stated, is as follows:
Early in September, 1955, there had been a strike of the butchers at the Food Basket Market in Pacific Beach which was authorized by Osslo, who was secretary-treasurer of the local union as well as the President of the Western Federation of Butchers, and the executive board. This strike arose over some 23 disputed items containing meat which were handled in the grocery department. After the strike in which about *10920 persons were involved, the market brought an action for an injunction, and after the hearing, the items were taken off sale. On October 13, 1955, there was a retail clerks’ strike at Ferguson’s Market and there were pickets carrying signs. Outside the market, there were about 25 persons including business agents for the clerks and butchers, as well as some butchers employed elsewhere. Defendants Osslo, McFaden and Meyer claim that they were threatened at this time by members of the clerks’ union and that as a result Harry Lundeberg of the Sailors Union of the Pacific was contacted and requested to send some men to accompany them during their rounds of checking contracts to see that they were not jumped from behind or injured by members of the clerks’ union. Defendants Dimitratos and Hazel arrived in San Diego and reported to McFaden and on October 19th accompanied Jackson (butchers’ union) and Meyer to Tang’s ' market where they were, apparently, threatened by a member of the clerks’ union who had a switch-blade knife and an outsider who had a gun. Osslo was contacted in Honolulu and advised Dimitratos to get some additional assistance which he did in the persons of Dempster, Cacio and Tucker.
On October 22nd, Osslo, McFaden and Meyer, accompanied by the five other defendants, visited several markets in San Diego. They arrived at Ferguson’s Market at about 11 o’clock in the morning for the purpose of seeing one Linnville, partner and manager of the market. They were told to return at 1 o'clock. At 1 o’clock Dimitratos, Cacio, Hazel, Jackson, Meyer, Woodard, Dempster, Tucker and McFaden returned and went into the market. McFaden, Jackson and Meyer stayed near the entrance talking to Linnville; Hazel went to the back to talk to a young lady in the delicatessen department (the young lady testified that Hazel was with her at the time of the assault) ; Dimitratos went to the back and observed the meat department at the right; Tucker and Cacio, who had been to Tia Juana the night before and who had been drinking heavily, went in search of buttermilk and when they did not find it turned back and came across Maurer and Montgomery who were representatives of the Clerks from outside San Diego. Defendants claim that as Dempster walked past them, followed by Tucker and Cacio, Maurer put his foot out; that Dempster saw it and stepped over it, but that Tucker, thinking Maurer was trying to trip him, stepped on Maurer’s foot; that Maurer struck at Tucker and missed and *110hit Cacio; that Caeio struck back at which time Maurer grabbed Cacio by the testicles and lifted him off the ground; that Tucker and Cacio then struck Maurer until he dropped Caeio and Maurer went down; that Cacio and Tucker thought Maurer was reaching for a gun and Tucker kicked him until he was knocked out. Dempster came back and caught Cacio who was in great pain. Montgomery had disappeared at the first sign of trouble.
Dempster took Caeio whose trousers were torn and who was in pain to one of the two ears. He then asked McFaden for the keys and Dimitratos, Hazel, Caeio and Dempster then drove off looking for the Ace Motel where they were staying. They lost their way and were picked up by the police who found that Cacio and Tucker had been drinking and noted Caeio’s condition and that of Tucker’s hands. Maurer arrived at the police station that afternoon and identified them.
A bakery clerk at the market said that Tucker, Cacio and Dempster were the ones responsible for the beating. Maurer’s testimony implicated Dimitratos in the fight; and showed that he thought he had hit Cacio in the stomach; that up until the time he was called a foul name and had been hit he did nothing at all to provoke a fight; that he and Montgomery had been trying to leave the store when they were “surrounded” by men. An organizer for the Clerks testified that Dempster was also in the fight; that Dimitratos and Hazel attempted to “get” Montgomery by chasing him.
The record contains testimony from both members of the clerks’ and butchers’ unions who were working in the market. A member of the Butchers testified that Maurer was “looking for trouble” on the day in question. The Clerks, on the other hand, testified that Maurer was just standing and minding his own business. It is obvious from the record that the testimony from both sides of the controversy was diametrically opposed.
The police officers testified that they had been alerted by radio from the Chula Vista police department; that when they stopped the car, Cacio, Dempster, Dimitratos and Tucker got out; that Caeio and Tucker said that “someone” had been reaching for a gun; that Tucker’s hand was red and swollen; that Caeio’s trouser leg was torn in two places at the thigh and that the men had been drinking. Dempster stated to the police that he had come from San Francisco on a vacation with his friends Tucker and Caeio; that he knew Dimitratos was in San Diego; that he did not know anything about a *111fight; that he knew nothing about a dispute between the Butchers and Clerks; that he had not attended a union meeting and that he had nothing to do with the butchers’ union. Tucker stated that he had come to San Diego with Cacio to do some drinking and visit Tia Juana; that he had not come with Dempster; that he had nothing to say about going to Ferguson’s Market; that he had attended a union meeting; that he had heard about the jurisdictional dispute between the Butchers and Clerks. He denied any connection with the butchers’ union; he denied that the butchers’ union had hired him to come to San Diego. Dimitratos told the officers he had come to San Diego with Hazel for a vacation; that they were staying at the Grant Hotel; that he had spent time with his friend McFaden; that he had not, nor had his friends, been involved in the fight at Ferguson’s Market. Cacio denied being employed by the butchers’ union; or that he had any interest in, or knowledge of, the dispute between the Butchers and the Clerks. Hazel’s answers to police questions were also confusing and inconsistent. Meyer denied being at Ferguson’s Market on the day of the fight.
The People allege the following overt acts with respect to the conspiracy to commit assault count:
(1) That Osslo had a conversation with Harry Lundeberg, on or about October 13, 1955, in San Diego;
(2) That Dimitratos and Hazel met in San Diego on or about October 15, 1955;
(3) That McFaden, at Osslo’s request, made reservations for three rooms at the U. S. Grant Hotel in San Diego on or about October 14, 1955;
(4) That McFaden, Dimitratos and Hazel met at the U. S. Grant Hotel on or about October 15, 1955;
(5) That Dimitratos and Hazel met at Butchers’ Local 229, 227 É. Street, San Diego, on or about October 17, 1955;
(6) That Dimitratos, Hazel and Meyer, and other representatives of butchers’ local met at Tang’s Market, 4508 Cass Street, San Diego on or about October 18, 1955;
(7) That Dempster, Cacio and Tucker met in San Diego, on or about October 21, 1955;
(8) That Dempster, Cacio, Tucker, Dimitratos and Hazel met at the Ace Motel, San Diego, on or about October 21,1955;
(9) That Dempster, Cacio, Tucker, Dimitratos and Hazel accompanied McFaden and Meyer to Ferguson’s Market in Chula Vista on or about October 22, 1955;
*112(10) That Dempster, Cacio, Tucker, Dimitratos and Hazel were in a certain Ford sedan leased by butchers’ local in San Diego on October 22nd;
(11) That Osslo and/or McFaden agreed to pay Dimitratos his expenses and a weekly salary on or about October 15, 1955;
(12) (13) (14) (15) That there was a similar agreement with Hazel, Tucker, Dempster and Cacio.
The People argue that from the above alleged overt acts, a jury could reasonably infer that a conspiracy to commit assault existed between the defendants; that the jury could reasonably determine that Osslo, with the knowledge and approval of McFaden and Meyer procured the services of the five sailor defendants for the purpose of intimidating the Clerks ‘ ‘ by their appearance and that if this was not sufficient, of perpetrating an assault upon a clerk who should happen into their proximity.”
There is evidence in the record which tends to prove all of the alleged overt acts. As I read the record, however, there is no evidence (and the People point to none) that the fight was planned, or premeditated, or that any of the proved overt acts lead to that conclusion. Assuming that Cacio provoked the altercation and that Maurer did not (although the evidence is extremely close on that point) telephone calls between the defendants, payment of expenses, salaries, and the making of hotel reservations, do not lead to the conclusion that the defendants were engaged in a conspiracy to commit an assault. The People argue, by quoting from the remarks made by the trial court, that because the five defendants were furnished bail, counsel, and their salaries were paid after the assault, that the assault had been planned between all defendants prior to its commission. In People v. Williams, 30 Cal.App.2d 234 [85 P.2d 974], relied on by the People, there was direct evidence that a conspiracy existed to commit assault. The same is also true of the case of People v. Dail, 22 Cal.2d 642 [140 P.2d 828], relied upon by the People. It is my conclusion that the alleged and proved overt acts charged against these defendants do not support the judgment convicting them of conspiracy to commit assault.
Misconduct of District Attorney
It is the defendants’ contention that the district attorney engaged in a course of prejudicial misconduct during the course of the voir dire examination of prospective jurors, *113throughout the course of the trial, and during the arguments to the jury. Defendants cite numerous examples of misconduct, among which are the following:
On voir dire examination, prospective jurors were asked whether they felt that “any segment of our society should be immune from the law” or “should take the law unto themselves” and whether they felt that because a person was a “member of a labor union, [he] deserves to get beat up once in awhile”; whether (after the sustaining of an objection) the prospective juror felt that “might makes right”; whether because the Clerks and Butchers had settled their difficulties it would cause the prospective juror to adopt a “let’s forget it” attitude; whether the prospective juror felt that “the community might have some interest in the matter”; whether the prospective juror had read “Victor Riesel’s column ‘Inside Labor ’ ”; whether any of the people in the jury box had read the column; whether the prospective juror realized that every time the district attorney introduced a “bit of evidence in this ease that in some way or other I am going to be prejudicing these defendants in your eyes”; that the juror realized “don’t you, that we are not up here in a criminal department to elect Mr. San Diego”; that “if in the course of this trial and as you examine the facts surrounding the beating of the clerk in Chula Vista, if you become aroused, and as a public citizen as to what happened, will you try and remove that from your mind and just try the ease on the evidence and the Court’s instructions and use that to arrive at your conclusion”; whether the prospective juror had heard that Mr. Osslo was a member of the grand jury that indicted him. (An objection was sustained to the last question.) It should be here noted that defense counsel objected throughout the course of the questioning that the questions were argumentative; that the district attorney was attempting to prejudice the jury; that the questions were irrelevant and immaterial; that the questions were for the purpose of inflaming the minds of the jurors.
During the opening statement, the district attorney again referred to the fact that Osslo had been a member of the grand jury that indicted him and defense counsel’s objection was overruled. The district attorney then stated that the evidence would show that “in the middle of October, 1955, another person was worried about Osslo and worried about goons.” When defense counsel asked what the last word was, the district attorney replied: “Goons, Another man was worried *114about Osslo and about goons. G-o-o-n-s (spelling). That man is Mr. Herb De Motte. He is a Secretary-Treasurer of a Butchers Local in Wilmington.” Defense counsel’s objection was overruled and the district attorney then made a long and involved statement concerning the internal affairs of the butchers’ union and the difficulties between De Motte and Osslo; that De Motte was afraid of “goons. He was afraid to hold meetings.” The district attorney’s statement was obviously an attempt to show that Osslo was a man to be feared because he would set “goons” upon any person with whom he disagreed. Defense counsel’s objections were overruled and the district attorney told the jury that De Motte would testify as to his fear of “goons.” The defendants were constantly referred to as “ goons. ’ ’
Prior to the taking of testimony, the trial court inadvertently started to instruct the jury concerning assault with a deadly weapon. When defense counsel objected that no use of a weapon had been charged and that the evidence would show that no weapon had been employed, the district attorney asked his co-counsel in the hearing of the jury: “A prize fighter is a weapon ? ’ ’ Also assigned as misconduct is the fact that before the court had ruled on the matter, and during a conference in chambers concerning the admissibility thereof, a board containing photographs of all the defendants, some of which were taken on the day they were arrested, was so carried and placed in the courtroom that it was visible to the jury.
During the course of the trial, a witness was asked if he knew that Harry Lundeberg supplied “strong arm men in the labor movement.” When an objection was sustained, the district attorney again asked if the witness knew whether or not on any prior occasion Lundeberg sent strong arm men into jurisdictional disputes or disputes with management. When a witness referred to Cacio as the “second gentleman there ...” the district attorney said, “I object to the use of the word ‘gentleman.’ ” The district attorney also managed to get in evidence the general strike in Oakland in 1948, or 1949, the Wall Street strike in 1948, the Western Union strike in 1952, the United Financial Employees strike in 1948, in an attempt to show that Harry Lundeberg furnished “strong-arm” men from the Sailors of the Pacific to aid in the strikes. To all of this evidence, defense counsel’s objections were overruled. The district attorney in his questioning referred to sending two sailors out to “bird dog Anderson” *115and to sending two sailors out “to finger Anderson.” When Captain Roland, a police officer, testified that he “didn’t like a couple of big, husky men walking around as bodyguards and [that they] gave the appearance of being toughs of the worst sort. I didn’t like it, but it wasn’t their physical appearance, other than they were big and husky,” the district attorney asked him “As a matter of fact, if you hadn’t seen them in Osslo’s office you would have run them out of town?” In questioning the defendant Dimitratos, the district attorney asked: “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. ...”
During closing argument to the jury, the district attorney stated “Incidentally, let me say this: a man died in the gas chamber not too long ago for just this type of conduct. He beat a woman in the face and when she fell he kicked and killed her and he died for that.” He also stated: “Incidentally, while mentioning him, let me say this: one or more of the jurors may say, ‘Well, that Jackson was in this thing and he was at the scene and he did as much as some of the other people. Why isn’t Jackson indicted? Why isn’t Lundeberg indicted?’ Those are unindicted coconspirators. That shouldn’t concern you here. In other words. ...” After objection, the court stated that the district attorney’s “remarks weren’t directly in conformity with the Indictment. The indictment does not name them as unindieted co-conspirators, but if he feels under the evidence they are co-conspirators he may so state.” After other objections, the court again stated that if the district attorney felt that ‘ ‘ some of his witnesses were co-conspirators he may so tell the jury, if he bases it on the evidence.” The district attorney also told the jury “You hear about the great man, Harry Lundeberg, that is clearing the waterfront of Communists. Let me say this: Harry Lundeberg, Barney Mayes and Harry Bridges were all bed fellows at one time. ...” After being told by the court to proceed with his argument, the district attorney said: “The water tenders, the firemen and what have you is an independent union and Lundeberg, in his grab for power, has used that old slogan to grab these unions, so that is malarky when they try to inject Communism in this case. It has been something Lundeberg used to control the docks. It is two percent his fight against Communism and ninety eight per cent his grab for jurisdictional power. That is what it amounts to. So don’t let them get you off base on this *116big man who, as I said, was a bed fellow of Harry Bridges back in the thirties. Bridges sponsored him to be head of the Maritime Federation of the Pacific.” After the court told the district attorney to confine himself to the evidence, he said: “So that fellow Lundeberg, don’t get any misconception about him. That fellow Lundeberg, where were the Communists on Wall Street when they had five hundred men-
“The Court: Mr. O’Laughlin, I kept that out of evidence.
“Mr. O’Laughlin: Well, where were the Communists in the Western Union strike? When old Thompson got beat up because he happened to cross a picket line? None of that at all. Lundeberg—and the reason we were bringing it in, counsel says what has Wall Street to do with it and the general strike in Oakland, or what has the Western Union strike to do with it. It shows a pattern that Lundeberg supplies the noise and the muscle. He can swing a jurisdictional dispute; he can swing an election. You and I might be members of a union and be sore at the particular administration and we might want it out for one reason or another, but if the pack that is in brings down the muscle, brings down some of Lundeberg’s boys, we are going to be silenced because we are going to be afraid of our lives, afraid to open our mouths, because if we do we might get the treatment Maurer and Thompson got.” When this was objected to by defense counsel as unsupported by the evidence and as improper and inflammatory, the court merely told the district attorney to “Proceed.”
While numerous additional instances of the same type of conduct could be cited, it appears that the above is sufficient to show that the district attorney was guilty of prejudicial misconduct insofar as all of these defendants are concerned. As we said in People v. Dail, 22 Cal.2d 642, 650 [140 P.2d 828], “It is also true, however, that in a close ease where the evidence is sharply conflicting, substantial and serious errors vital to defendant that may have resulted in a miscarriage of justice must be regarded as prejudicial and grounds for reversal. (People v. Silver, 16 Cal.2d 714, 723 [108 P.2d 4].)” In the case at bar, the district attorney managed to interject much immaterial and irrelevant matter concerning strikes, the use of pickets, and assaults in other strikes which could not have had any other effect than to prejudice these defendants who were not claimed to have taken part therein. Further, the numerous references to the defend*117ants as “goons,” “strongarm” men, “muscle” men, and the objections to the term “gentleman” as applied to one of the defendants were highly inflammatory and prejudicial, as were the district attorney’s references to Lundeberg as a former Communist. Prom the district attorney’s comments, arguments and questions, it appears that the entire labor movement was on trial and that anyone connected therewith was suspect as a participant in the trial of this particular case. Such conduct is reprehensible and should not be condoned. In People v. Lyons, 47 Cal.2d 311, 318 [303 P.2d 329], we said, quoting from Viereck v. United States, 318 U.S. 236, 248 [63 S.Ct. 561, 87 L.Ed. 734] : “ ‘The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’ ” Here, as in People v. Teixeira, 136 Cal.App.2d 136 [288 P.2d 535], “. . . it is hard to believe that this experienced prosecutor asked them [questions] in good faith and for any purpose other than to degrade defendants. ’ ’ In People v. Vienne, 142 Cal.App.2d 172 [297 P.2d 1027], it was held that the district attorney is bound to refrain from making inflammatory statements (see also People v. Wilkes, 44 Cal.2d 679 [284 P.2d 481]); in People v. Henderson, 144 Cal.App.2d 706 [301 P.2d 468] (where the same district attorney was involved), it was held prejudicial and reversible error' for the prosecutor to state or imply the existence of facts concerning which no evidence had been introduced.
Admission and Exclusion of Evidence
It is first claimed by the defendants that the court erred in admitting the testimony of Captain Hodson. This testimony included the admission in evidence of part of the log book of the steamship Luckenbach concerning a fight in 1952 in which defendants Dimitratos and. Dempster were involved. *118Defendants contend, and their counsel argued at the time the evidence was admitted that the evidence was immaterial, irrelevant, too remote from the San Diego incident, and that it was prejudicial error for the prosecution in the first instance to put in evidence the bad character of the defendants. The trial court also permitted the People to put in evidence testimony that defendant Dimitratos had been stabbed in a fight on board ship in 1951; and that Dempster and Hazel were in the same crew. In People v. Teixeira, 136 Cal.App.2d 136, 148 [288 P.2d 535], People v. Adams, 76 Cal.App. 178 [244 P. 106], People v. Nunley, 142 Cal. 441 [76 P. 45], it was held that such evidence was inadmissible as an attack on the character of the defendant by the prosecution and constituted prejudicial error. In People v. Lyons, 47 Cal.2d 311, 317 [303 P.2d 329], where the prosecution alluded on the cross-examination of the defendant’s wife to a prior conviction of defendant, we said: “It would be an impeachment of the legal learning of counsel for the People to intimate that he did not know the aforesaid questions to be improper, wholly unjustifiable and peculiarly calculated to prejudice the appellant before the jury.” (Emphasis added.) (See also People v. Hardy, 33 Cal.2d 52, 61 [198 P.2d 865] ; People v. McKelvey, 85 Cal.App. 769, 771 [260 P. 397].)
The above evidence was held admissible by the trial court on the theory that a conspiracy had been charged even though the People did not contend that the conspiracy had dated back to 1951 and 1952. Defense counsel’s motion to strike was denied by the trial court. From the trial court’s remarks, it is obvious that the evidence was held admissible on the theory that a conspiracy presently existed between all defendants.
The evidence was inadmissible on any theory and its prejudicial effect is at once apparent.
The admission of evidence concerning the Wall Street strike, the general strike in Oakland and the Western Union strike has heretofore been commented upon in the discussion concerning the prejudicial misconduct of the district attorney. The trial court’s statement that “The reason I let this testimony in was to show other instances where the members of the Sailors Union were used and what transpired, to show the demeanor of the sailors used on the picket lines. In this conspiracy count you are entitled to know all the surrounding circumstances of the people that were employed in the incident down here, if one happened,” and the court’s later ad*119mission that there was an entirely different group of sailors in San Diego, clearly show the error that was committed. The case at bar involved an assault and a conspiracy to commit an assault and the fact that other sailors were used in picket lines in other areas remote in place and time is completely immaterial and irrelevant and was highly prejudicial to the defendants in the case at bar. (People v. Lyons, 47 Cal.2d 311 [303 P.2d 329]; People v. Hardy, 33 Cal.2d 52, 61-62 [198 P.2d 865]; People v. Wynn, 44 Cal.App.2d 723, 732-733 [112 P.2d 979]; People v. Freitas, 34 Cal.App.2d 684, 687 [94 P.2d 397]; People v. Stafford, 108 Cal.App. 26, 29-31 [290 P. 920].)
Defendants contend that the court erred in excluding testimony offered by them to show that threats had been made against some of them which necessitated the request to Lundeberg for bodyguards to accompany the Butchers’ business agents on their rounds. Inasmuch as the evidence is in sharp conflict as to which side started the fight, this testimony should have been admitted. If threats had been shown to have been made against the business agents of the Butchers by members of the clerks’ union, the evidence would be admissible as tending to prove the defense theory that the five defendants were summoned to San Diego to act as bodyguards only and to disprove the People’s theory that a conspiracy to commit assault existed between all eight of the defendants.
Punishment of Osslo, McFaden and Meter as Improper, Excessive and Unlawful
Osslo and McFaden were each fined $1,500 to be paid from their own funds; Meyer was fined $750 to be paid from his own funds.
Osslo and McFaden were ordered to serve six months in the county jail; Meyer was ordered to serve three months in the county jail.
These three defendants were placed on 10 years’ probation, during which time they could hold no union office and receive no salary for any union services, or participate in any union negotiations. In addition, these defendants were required to fill out an annual affidavit that the fine payments were made from their own funds and that they held no union office, etc., and “further, that this Court and Judge shall retain jurisdiction of this matter throughout the said period of probation and no other department of the Court or other Judge shall modify this order without notice to the Judge who tried the case. ...”
*120Defendants argue that the terms of their probation cut off their ability to earn a livelihood; that said terms violate the principle back of probation which “is defined as an act of grace and clemency, which may be granted by the court to a seemingly deserving defendant, whereby he may escape the extreme rigors of the penalty imposed by law for the offense of which he stands convicted.” (People v. Hainline, 219 Cal. 532, 534 [28 P.2d 16]; Lee v. Superior Court, 89 Cal.App.2d 716, 717 [201 P.2d 882]) and that it violates the principle that the terms and conditions of probation must be reasonable under all the circumstances (In re Trombley, 31 Cal.2d 801, 811 [193 P.2d 734]).
While these three defendants were found guilty of both conspiracy to commit assault, and assault with force likely to produce great bodily harm, it is apparent from the record that they were not involved in the actual assault. Defendants claim, with merit, that it is impossible to determine whether they were convicted of a felony or a misdemeanor since they were charged with and found guilty of conspiracy to commit assault and charged with, and found guilty of, assault with force likely to produce great bodily injury.
Defendants’ arguments in this respect have merit. It appears that the terms of probation are such as would deprive defendants of their means of livelihood and also violate the principles of probation. The purpose of probation is not to impose penalties (In re Hays, 120 Cal.App.2d 308, 310 [260 P.2d 1030] ; In re Martin, 82 Cal.App.2d 16, 22 [185 P.2d 645]). It is my opinion that the trial court was guilty of an abuse of discretion with respect to the terms and conditions of probation imposed on defendants Osslo, McFaden and Meyer.
Errors in the Majority Opinion '
The Evidence :
I have heretofore set forth a fair statement of the evidence as it relates to the ease at bar. We are here concerned with evidence to support a judgment of conviction of conspiracy to commit assault. There is no doubt that an assault was, committed by some of the defendants. Defendants Osslo, Mc-Faden and Meyer were not involved in the actual assault and the People do not so argue. The majority opinion quotes at length from the testimony of one Jackson, a business agent for the Butchers. Nothing said by the witness, or quoted in the majority opinion, leads to the conclusion that these defendants were engaged in a conspiracy to commit assault. The *121majority makes much of the statements of the witness that the police force was not called for protection rather than members of the sailors’ union, that older, unemployed members of the butchers’ union of San Diego were not called upon to act as observers and that members of other San Diego labor unions were not called upon. The witness’ testimony regarding his belief that members of the Butchers had reason to fear violence from the Clerks is quoted extensively in an endeavor by the majority to show that no such fear could reasonably have existed. In the first instance there is no law that I am aware of which would require these defendants to ask police protection or to hire any particular segment of society to act as their observers. I also know of no law prohibiting the hiring of a bodyguard for protection. It also appears to me highly unlikely that any police force would have sufficient men available to accompany members of labor unions on their rounds in order to prevent trouble which at that time was only a possibility. Insofar as the fear of trouble was concerned and any threats, by conduct, or otherwise, made by members of the Clerks to members of the Butchers were concerned it appears to me that fear is subjective and that these men, who were there at the time, were far more able to recognize it than the members of the majority of this court who only know what appears in the record as we see it today.
Because defendant Osslo said he was “top man” on the west coast and “that was it” and because he said the Butchers would “show” the Clerks, the majority infers that Osslo “set up a situation which inferentially was designed to, and which clearly did, increase the likelihood of violence in the jurisdictional dispute. On a view of the evidence favorable to the prosecution, which the law at this stage of the proceeding requires of us, it is fairly inferrible that Osslo, McFaden, and Meyer at least tacitly understood, anticipated that the remaining five defendants would not merely be present to act as ‘observers’ and protect the Butchers from violence, but would and should initiate the violence, which they subsequently did initiate, to ‘show’ the Clerks that Osslo indeed ‘was boss of the West Coast and he would fight for jurisdiction’ and ‘that was it.’ ” No such inferences can be fairly drawn from the record. It should be borne in mind that the conspiracy charged here was to commit assault—not a conspiracy to make Osslo “boss” of the west coast! There is absolutely nothing in the record from which an inference may be drawn that Osslo intended the five defendants to “initiate” violence and *122in the state of this record with its numerous instances of prejudicial misconduct and the close question of fact presented concerning just which labor union instigated the altercation, this court should not concern itself with drawing such an inference. Because other members of the sailors’ union had participated in other labor union disputes in other parts of the country in 1948, 1949 and 1952, and had, according to the majority, been guilty of assault and battery in connection therewith, we are told that we may infer that Osslo, McFaden and Meyer knew that these defendants would initiate violence. So far as this record is concerned we do not know whether or not the members of the sailors’ union engaged in those other strikes were the guilty ones in the crime of assault and battery. For all we know, the other parties involved may have been the guilty ones and the sailors’ members completely innocent. Even if the members of the sailors’ union involved in those other strikes were the guilty ones, should every member of a labor union to which he must belong if he is to earn his livelihood be held guilty of the same crime ? The question answers itself and shows the fallacy in the reasoning of the majority. That reasoning carries the philosophy of “guilt by association” to its ultimate extreme.
Admission and Rejection op Evidence :
The majority feels that the admission of evidence concerning other and remote labor disputes in which other members of the sailors’ union were involved was not prejudicial error when considered in the “light of other circumstances, including the prior activities of Osslo, McFaden and Meyer” to show that these men “contemplated that the employment of the sailor defendants probably would result in acts of violence by” the other five defendants. First we are told to rely on the asserted violent tendencies of other members of the sailors’ union to show that Osslo, McFaden and Meyer are guilty as charged and, secondly, that “the prior [unexplained] activities” of the three men made such evidence admissible because it showed their knowledge that violence would result. There is absolutely nothing in the record to show any connection between the other strikes in which other members of the sailors’ union participated and any of these defendants except that some of them belonged to the sailors’ union.
The majority finds that the jury could not have been misled because of the admission of evidence of fights, unconnected *123with labor activities, which occurred in 1951 and 1952, and which occurred on board ships on which Dimitratos and Dempster were sailors. It is said that “in 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.” The only reason for the admission of such evidence would be to show the allegedly bad character of these two defendants and was wholly inadmissible as I have heretofore pointed out and such evidence has, up until this case, been held to constitute an unwarranted attack on the character of a defendant and to constitute prejudicial error. The question is not one of misleading the jury but goes to the question of due process in that every person accused of a crime is entitled to a fair trial on the merits of his particular case.
Concerning the admission of evidence of telephone calls between the defendants and other members of their organizations of which the defendants complain, the majority says “This evidence was properly received to show defendants’ association; that that association was criminal is shown by the other evidence, viewed as a whole.” This statement assumes the answer to the main question involved—whether defendants conspired to commit the assault and battery which occurred. Mere association and telephone calls, the subject matter of which is completely unknown, have never, until now been sufficient to show that a conspiracy to commit a crime existed. Under the holding here, no association, no telephone call, can be innocent and immune from a later charge of conspiracy if one of the parties should later be accused of a crime of any type.
With respect to the admission of evidence of the arrest of two members of the clerks’ union after the assault and battery involved here occurred, and of which defendants complain, the majority says that “This testimony tends to show that defendant Osslo, after the assault, attempted to harass the Clerks by unsubstantiated accusations and to distract emphasis from the charges against him by countercharges; it was thus admissible as tending to show that Osslo was a conspirator carrying on an effort to make good his declaration that he ‘was boss of the West Coast and he would fight for jurisdiction, ’ and not, as he argues, the innocent employer of persons who were to act as ‘observers’ or at the most to show the Clerks that the Butchers were protected, without the exercise of force.” The conspiracy charged here was that *124of assault and battery, not the promotion of Osslo as “boss” of the west coast. The assault and battery had occurred before the arrest of the clerks and hence the conspiracy, if any, had been terminated. To be admissible, the act or declaration must have been made during the pendency and prior to the termination of the enterprise and in furtherance of the common design (People v. Brown, 59 Cal. 345; Estate of Strachan, 166 Cal. 162 [135 P. 296] ; Budd v. Morgan, 187 Cal. 741 [203 P. 754] ; People v. Berlin, 203 Cal. 587 [265 P. 230] ; People v. Smith, 151 Cal. 619 [91 P. 511] ; People v. Kynette, 15 Cal.2d 731 [104 P.2d 794] ; People v. Steccone, 36 Cal.2d 234 [223 P.2d 17]).
The majority holds that the exclusion of evidence concerning McFaden’s report to Jackson and Osslo that he had been frightened by the Clerks could not, in the “light of the record” have prejudiced defendants. This evidence was patently admissible under the defendants’ theory and should have been admitted. It is clearly seen that evidence damning to them is held properly admitted while evidence in their favor is held properly excluded. A fair trial encompasses all the relevant and material admissible evidence whether favorable, or unfavorable, to either side. A fair trial does not mean a trial where the prosecution uses every means, whether fair, or foul, to gain a conviction and no court should condone such a practice. As we said in People v. Lyons, 47 Cal.2d 311, 317 [303 P.2d 329], it would be an impeachment of the legal learning of counsel for the People to intimate that he did not know that what he was doing was improper, wholly unjustifiable and peculiarly calculated to prejudice the appellant before the jury. Counsel for the People knew, or should have known, that his conduct and a great deal of the evidence produced by him was wholly irrelevant and that it was “peculiarly calculated to prejudice” the defendants in the eyes of the jury. He should also have known that evidence relevant to defendants’ side of the ease was admissible and a part of the entire background of the American system of jurisprudence —a fair trial.
Misconduct op the District Attorney :
I have heretofore set forth in detail some of the instances in which the district attorney was guilty of prejudicial misconduct and the majority has cited some additional examples all of which were calculated to and did inflame the minds of the jurors. The majority, however, finds that “the evi*125denee so overwhelmingly supports the implied findings that it does not appear reasonable to believe that the misconduct was a contributing factor” in arriving at the verdicts. As I have pointed out at length the evidence is far from overwhelming—it is nonexistent so far as a conspiracy is involved since the overt acts, in and of themselves, while proved, do not lead to the inevitable conclusion that defendants conspired to commit assault and battery. The overt acts charged consisted of a number of conversations and meetings between the defendants, a labor meeting at which defendants were present, hotel reservations made for some of the defendants ; defendants’ presence in cars leased by the butchers’ local of San Diego; salaries agreed to be paid to the five defendants by Osslo or McFaden. There was no proof, either direct or circumstantial, of what the conversations were at either the meetings or at the labor meeting; there was no proof either direct or circumstantial that at any of the times charged, defendants conspired to commit assault and battery. The majority, however, infers that all of these meetings were used for an evil and unlawful purpose and concludes that the evidence against all the defendants is so “overwhelming” that no misconduct could have prejudiced the defendants in the eyes of the jury.
It can hardly be doubted that the interjection of Communism in the case was prejudicial to the defendants as was the use of the words “goon,” “finger man,” “strong-arm men,” and “toughs.” All of these things tended to attack the character of the defendants so as to prejudice them in the minds of the jurors and from the state of the record were obviously calculated to do just that by the prosecutor.
An admonition to the jury to decide the case on the evidence produced is insufficient to cure the errors and misconduct which occurred in this case. A reading of the record shows that from the voir dire examination of prospective jurors, throughout the trial, and until its close, the prosecution was guilty of a deliberate attempt to harass, embarrass, and prejudice these defendants. The majority finds nothing wrong with the trial judge permitting counsel for the People to “yell” at one of the defendants while on the stand. It is said that the record does not show that the “yelling” intimidated the witness. The district attorney is a representative of the People and as such is not “at liberty to strike foul” blows. Here, as in People v. Teixeira, 136 Cal.App.2d 136 [288 P.2d 535], “. . . it is hard to believe that this expe*126rienced prosecutor ’’ yelled at a witness “in good faith and for any purpose other than to degrade ’ ’ him.
Conditions op Probation:
I have heretofore discussed these conditions and my reasons for feeling that they were excessive and in violation of the principle of probation. The majority cites People v. Frank, 94 Cal.App.2d 740, 741-742 [211 P.2d 350], as authority for its holding that the punishment imposed was perfectly proper. In the Frank case the defendant was himself guilty of committing a crime. In the case at bar, defendants Osslo, Mc-Faden and Meyer were not guilty of the actual assault and it is only by means of the improper use of the conspiracy statute that they are in any way involved. As I have pointed out the record shows a total lack of evidence that these defendants conspired with the others to commit the crime with which they were charged and a majority of this court, in affirming the judgments of conviction and the terms of probation, has deprived these three defendants of their means of earning a livelihood since they may not even work as the most menial of laborers in their own union and cannot receive remuneration “from any union.” The terms of probation are wholly out of line with the cases holding that probation is an act of grace and clemency for the purpose of permitting rehabilitation of a defendant who is “seemingly deserving” and for the purpose of permitting him to “escape the extreme rigors of the penalty imposed by law for the offense of which he stands convicted” (People v. Hainline, 219 Cal. 532, 534 [28 P.2d 16]; Lee v. Superior Court, 89 Cal.App.2d 716, 717 [201 P.2d 882]).
Summation
In my opinion:
1. The judgment should be reversed with directions to dismiss the charge of conspiracy to commit assault as to all defendants because of the total lack of evidence in the record to support the charge.
2. The record shows that only the defendants, Cacio, Tucker and possibly Dempster and Dimitratos, could have engaged in the assault. There is no evidence to show that it was other than a spontaneous assault and, in view of the sharp conflict in the evidence as to the person responsible for starting the altercation and the prejudicial misconduct of the district attorney, as well as the highly prejudicial character of the evidence erroneously admitted (as heretofore discussed), the *127judgments should be reversed as to them in order that they may have a fair trial on the merits. We held in People v. Lyons, 47 Cal.2d 311, 319 [303 P.2d 329], that “It is axiomatic that when an accused is denied that fair and impartial trial guaranteed by law, such procedure amounts to a denial of due process of law (Powell v. Alabama [1932], 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527]).”
3. Since there is no evidence which tends to connect defendants Osslo, McFaden, Meyer and Hazel with the actual assault, the trial court should be directed to dismiss as to these defendants the charge of assault by means of force likely to produce great bodily injury.
Gibson, C. J., and Traynor, J., concurred.
Appellants’ petition for a rehearing was denied April 23, 1958. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.