The opinion
TRAYNOR, J.
I dissent.
The record of the misconduct of the trial judge and prosecuting attorney as set forth in the majority opinion demonstrates that defendants were denied a fair and impartial trial. Because of the abundant evidence that defendants were guilty of kidnaping, it is contended that they could not have been prejudiced in the determination of this issue. “Begardless of their guilt, however, they were entitled to a fair and impartial trial. (Moore v. Dempsey, 261 U.S. 86, 87-88, 92 [ 43 S.Ct. 265 , 67 L.Ed. 543 ]; see concurring opinion of Mr. Justice Jackson in Shepherd v. Florida, 341 U.S. 50 [ 71 S.Ct. 549 , 95 L.Ed. 740 ].) ‘Neither can a plea for the application of [Art. VI, § 4½] of the constitution save this situation. The fact that a record shows a defendant to be guilty of a crime does not necessarily determine that there has been no miscarriage of justice. In this ease the defendant did not have the fair trial guaranteed to him by law and the constitution. ’ (People v. Mahoney, 201 Cal. 618, 627 [ 258 P. 607 ].) ” (People v. McKay, 37 Cal.2d 792, 798 [ 236 P.2d 145 ].)
Schauer, J., concurred.
The petitions of appellants and respondent for a rehearing were denied May 25, 1955. Carter, J., Traynor, J., and Schauer, J., were of the opinion that the petitions should be granted.