CELEBRATE! VOLUME II : ORANGE COUNTY’S FIRST 100 YEARS : CATALYSTS FOR CHANGE : LOCOMOTIVES, LAUNDRY & LEGALITY

Modesta Avila’s message to the Santa Fe was right on track, but when the courts blew the whistle on her she found herself derailed and jailed--Orange County’s first convicted felon.

In 1889, Modesta Avila, young, single and naive, tried to stop the railroad from trespassing on her property. For that, she was sent to San Quentin for three years--a sentence she never completed. She died in prison.

All for the outrageous act of--as the popular version of the story goes--stringing her laundry across the tracks to protest the train’s crossing her property.

An unlikely candidate to be Orange County’s first convicted felon, Avila’s story had begun a year or two earlier, when her mother died and left her daughter a piece of property just north of what is now the San Juan Capistrano train station. On it were a small shack and some chickens.

The tracks of the Santa Fe Railroad’s coastal line, the California Central, were heading south--right through Avila’s property, but without her permission. According to historian Jim Sleeper, Avila contended that she should receive $10,000 for allowing the tracks to go through her property, and the railroad promised her compensation. But the train was on its way before any hope of money was. The appeals of a diminutive 20-year-old Mexican woman did not go far.

But Avila was not entirely an innocent. Although prison records list her occupation as housekeeper, her true profession apparently was the world’s oldest. The year before her railroad court case, she was convicted of “vagrancy,” a legal nicety for prostitution, and was sent to county jail (then in Los Angeles) for 30 days.

In June, 1889, as the train was about to come barreling through her property, Avila tried in desperation to scare the iron horse away. Not only had she not been compensated by the railroad, but the train also reportedly was spooking her chickens.

So Avila tried to stop the train.

Sleeper says it was a railroad tie she laid across the track, not a line of laundry. “You couldn’t slow a freight train down with that.” But she had second thoughts and sent word to the station agent at the depot, according to Sleeper, and the tie was removed before the train got there.

The incident occurred a month and a half before Orange County separated from Los Angeles County, but by the time the charges were filed, on Oct. 15, the new county was on its own. And by that time, the county had lost its first felony prosecution against an accused horse thief. County authorities, smarting from their court loss, were looking for a sure-fire conviction, Sleeper says, and they found it in Modesta Avila.

The district attorney--the county’s first--was Eugene Edwards, who, as a state assemblyman, had introduced the bill creating the new County of Orange. He was serving in both positions simultaneously. Representing Avila was George Hayford, an inexperienced attorney who took the case, Sleeper says, on a pro bono basis. Hayford may have done Avila no favor. According to a story in the Santa Ana Daily Evening Blade a decade later, Hayford was a swindler and a fraud.

“Hayford will be remembered by Santa Ana citizens as an all-round crook and sharper who worked in the telegraph office here about six years ago, and afterward hung out his shingle as an attorney at law, and who still later was the recipient of a horsewhipping administered by a woman whom he had defrauded out of a bill,” the Jan. 12, 1899, issue of the Blade reported.

A fraying, canvas-covered ledger now tucked away in the basement of the Orange County Superior Court clerk’s office succinctly sums up the county’s record of Avila’s case. The “Register of Actions, Criminal, Vol. 1,” written in black ink on now brittle and yellowing pages, states that the charge of obstructing a railroad track was filed on Oct. 15, 1889. Two days later, Hayford filed a plea for a dismissal, which was overruled, according to the records.

Avila’s trial began Oct. 22, 1889, before Judge J.W. Towner and was submitted to a jury that day. The next day, according to the ledger, the jury came back with no verdict--Sleeper says the vote was 6-6--and a new trial was set for Oct. 28, 1889. Bail was reduced from $1,000 to $500 after the first trial, Sleeper says, but Avila was so poor that it made no difference. When the second trial began, a rumor circulated that Avila was pregnant. That apparently did not help her case. She was found guilty on Oct. 29, county records state.

Three days later, Hayford moved for a new trial for his client and also asked for the judgment to be set aside. Both motions were denied, and within a week, Avila had begun serving her three-year sentence. According to the local press, Avila’s sentence was “considered by all to be a just one.” Even Avila did not seem surprised by the harsh punishment. “When the judgment was rendered she was not affected in the least, but left the room with a smile on her face,” a news account read.

Her attorney filed appeals, but they went unanswered, Sleeper says. In Hayford’s appeal to Gov. Robert W. Waterman, he argued that Avila’s reputation might have prejudiced her case but had nothing to do with the charge for which she was tried.

In a letter to Waterman’s successor, Gov. Henry H. Markham, Hayford confirmed the pregnancy rumor of her second trial:

“The jury being moralists to a high degree believed she should not be entitled to the benefits of any doubt and that it was best to send her to prison,” he wrote. He added in another appeal: “Her real crime is that she is a poor girl not having sense enough to have been married.”

The baby apparently died. Prison authorities have no record of it. Indeed, they have no record of Avila’s death. Records state only that she was “discharged” March 3, 1892, seven months before her sentence was up, according to a spokeswoman for the state Department of Corrections. Her obituary ran in the Santa Ana Standard. It read:

“Modesta, a well-known favorite of the Santa Ana boys, died in the penitentiary this week at San Quentin. She had served two years of her time and was getting along finely when she was stricken down in the prime of her usefulness. Let those who are without sin throw the first stone.”