Incredible Stories : History Shows That Some of Orange County’s Favorite Legends Simply Won’t--and Never Did--Fly

How did a convicted prostitute get on a list of Orange County’s outstanding women?

How was a bandit hanged from a tree branch so low to the ground that a tall man must stoop to walk under it?

How does the county continue attracting tourists to an event that never happens?

It’s a myth-tory.

Myths can attach themselves to historical events like barnacles to a rock, and reality seems never able to pry them loose.

“When it comes to local history, the first liar hasn’t got a chance,” quipped Jim Sleeper of Tustin, who makes his living researching Orange County history. “Any of these stories grow given sufficient time. It isn’t quite the same story once it gets down the line.”

So while many know that Marie Antoinette never said, “Let them eat cake,” and that George Washington never chopped down the cherry tree, they may be surprised to learn that the roots of San Juan Capistrano’s “Hanging Tree” don’t go as deep as they thought.

The huge, ancient sycamore still stands near the San Diego Freeway at Junipero Serra Road. In the 1950s, CalTrans planned to cut it down to make room for the road, but it realigned the right-of-way after locals explained the tree’s colorful history.

In his self-published history “The Capistrano Story,” Bill Smith referred to the tree as the “Bandit’s Rendezvous Tree.” He recounted how Tiburcio Vasquez, a notorious outlaw of the 1870s, used the tree as a camping spot for his gang between raids on Los Angeles. The spot was far from the sheriff in Los Angeles but close enough to San Juan Capistrano for an easy ride or walk into town.

Other versions say the bandit was Juan Flores or Joaquin Murietta, but all versions include the story of a posse finally tracking the bandits to the spot and hanging one of them from a branch that still grows from the tree.

“We used to use that tree ourselves,” recalls Larry Buchheim, a San Juan Capistrano native and former mayor. “It was a good place for drinking parties, picnics and romance. It was on a side road in an orchard, and the police didn’t bother you there. We had a lot of sentimental affection for that tree.”

So Buchheim’s older brother Carl, owner of the orchard on which the sycamore stood, was concerned when he saw the freeway engineer and construction superintendent examining the old tree.

“It was a real hot day,” he recalls. “I said, ‘Well, I see you guys are enjoying the shade.’ They said, ‘Yeah, we’re going over plans. We have to take out this sycamore tree; it’s in the right-of-way.’

“I told them, ‘That tree’s been there a long time. Can’t we just nudge the right-of-way over?’ I told them I’d give them the land. He said, ‘I can’t do that without some history. We got to get some history on this tree and a photograph.’

“I said, ‘Well, I’ll see what I can do.’ ”

Carl Buchheim, who, like his brother, would later become mayor, went to the cafe where the town’s good old boys gathered daily to drink coffee and chat.

“I had a cup of coffee with a newspaperman and a teacher at the local high school. I said, ‘Can’t we cook up some history on that tree?’ I told the newspaperman to go up and take a picture of it and ‘between the two of you, cook up some history. Any kind, as long as no living person can question it.’ That’s the way history is made, you know.

“Well, they cooked up the history and took the picture and put it in the newspaper (the now-defunct Coastline Dispatch) and we still have the tree,” Buchheim says. “Both of those gentlemen are still in town, so I’m not going to name them. I really don’t want to say too much and destroy my credibility.”

Historian Pam Hallan-Gibson, who specializes in Capistrano history, says the story didn’t end there. After the freeway and road were completed, “CalTrans decided that a plaque should be put there. But when they contacted Betty Forster, who was known then as the expert on local history, she had never heard the story and laughed at them. They kind of left in a huff.”

The story of the Hanging Tree has persisted despite its obvious improbability. The limb from which the bandit was supposedly hanged “is so close to the ground, you’d have had to dig a hole to hang anybody,” says Larry Buchheim. “Might hang a rabbit, that’s about it.”

“The myth has been pretty well circulated,” says Carl Buchheim. “I hate to destroy it. The community’s been thriving on it so long.”

Buchheim needn’t worry, for myths have proved to be remarkably durable in Orange County.

One, the saga of Modesta Avila, the “charming dark-eyed beauty” from San Juan Capistrano who died in prison in 1891, has received new life in recent years.

During National Women’s History Week in 1983, a county commission listed Avila among the Orange County’s “outstanding women.” An opera retelling her story was composed and staged in Westminster in 1986. For the county’s centennial in 1989, the county’s YWCAs included her among notable women on their poster titled “Legacy of Courage.”

Avila’s story has strong appeal to anyone with a sense of justice, but especially to those outraged by the repression of women by a male-dominated Establishment. For according to published accounts, Avila was convicted of obstructing a railroad right-of-way, a felony, when all she did was string laundry across a track that traversed her land.

She had done it to protest the railroad’s noise and pollution and to assert her property rights. The railroad had laid track on her land without her permission, but unfortunately for Avila, railroads were then at the height of their political influence.

It took two trials to find a jury that would convict her, and a judge sentenced her to three years in prison. She was in San Quentin two days later, a martyr whose only crime was standing up to her oppressors.

We’ll return to our story after this word from real life . . .

Myth obscures the true pathos of Modesta Avila’s story.

Was she a saint? Hardly. If she wasn’t a prostitute, those who knew her thought she was. She had served a 30-day sentence for “vagrancy,” that era’s euphemism for prostitution. After she died, one Santa Ana newspaper referred to her as “a well-known favorite of the Santa Ana boys” who had been “stricken down in the prime of her usefulness.” (To its credit, the newspaper added, “Those who are without sin throw the first stone.”)

Had the railroad railroaded her? According to her lawyer, the land she inherited from her mother was being held in trust, she being 20 and underage, but her uncle betrayed the trust. He sold a right-of-way to the railroad “for his own benefit,” and nothing could be done to reverse that.

Was Avila fighting for peace and quiet and clean air? Perhaps, but what she asked for was money. According to her lawyer, she had set about to “scare” the railroad into paying her the $10,000 she believed she had coming.

She didn’t string laundry across the track. According to the prosecution, and conceded by her lawyer, she laid a much more substantial railroad tie across the rails. The prosecution alleged that a serious accident was averted only because someone tipped off the railroad agent about the obstruction six minutes before the “overland train” came through. Some said she had sent the person with the tip after she had second thoughts.

But it appears that Avila was, in fact, a victim of political ambition. For while the incident was considered too trivial to report to the railroad company, six months later--three months after the new county of Orange was formed--she was arrested and prosecuted.

Apparently, the new sheriff and district attorney were worried about their jobs. They would have to face reelection the following year, but so far they had obtained no big convictions. The county was too damn peaceful, and the only felony case they’d prosecuted--horse thievery--had ended in acquittal.

They dug up the Avila incident, which seemed like a sure winner, filed charges and sent her to trial. The jurors deadlocked, some apparently believing her actions too trivial to be criminal.

But before the second trial began, the fact that she was pregnant and unmarried became common knowledge, and sympathy for her dissolved. She was convicted by what he attorney called “the moral prejudices of a few sanctimoniests.”

The jury recommended leniency, but the judge sentenced her to three years in state prison. Avila died 15 months before she was to be released. There is no record of what happened to her child.

In his futile request for a pardon, Avila’s lawyer wrote what amounts to her epitaph: “Her real crime is that she is a poor girl not having enough sense to have been married . . .”

P.S.: Both the sheriff and district attorney, sensing their unpopularity, did not run for reelection.

The godfather of all Orange County myths, the return of the swallows to Mission San Juan Capistrano precisely on St. Joseph’s Day (March 19), persists despite nearly two decades of journalistic reports to the contrary.

Ornithologists say the migrating birds return to a large region, not just to Capistrano, and they don’t return all at once or on any one particular day or even over one particular week. Their feeding habits make their arrival time quite irregular and unpredictable.

Yet it is only relatively recently that news media have gone straight on the swallows issue. In earlier years, the media were intentional or unintentional helpers in spreading the myth and probably helped create it.

“It was an accepted feature of Southern California life, a simple phenomenon taken as a matter of course,” wrote Times writer and editor Ed Ainsworth in his 1948 book “California Jubilee.” Since the mid 1920s, it had been “part of my job, as country editor, to receive from the news correspondent in the Capistrano area the usual few lines chronicling that the swallows came in on time, and to print them.”

Ainsworth had never attempted to confirm the birds’ punctual arrival, but “it was a pretty story, almost in a class with that of babies being found under cabbages. It could do no harm.”

Newspaper reports stated the miracle of the swallows extended as far back as the founding of the mission in 1776, but the first known published reference to the returning swallows was in a Santa Ana newspaper in 1924. Elaboration followed in a 1930 book, “Capistrano Nights,” by Father John O’Sullivan, a mission priest.

He wrote that on the day before St. Joseph’s Day, 1921, he was discussing the upcoming feast with Acu, an old Acagchemen Indian, who “turned his eyes upward, searched the sky in every direction, and finally said in a half-disappointed way, ‘They haven’t come yet, and tomorrow is the day.’

“We were expecting the swallows to arrive as usual for the feast of St. Joseph and occupy their mud houses along the cornices of the church.”

If O’Sullivan’s memory was correct, he and Acu had expected the birds to be there before St. Joseph’s Day. That distinction was lost when O’Sullivan began retelling the swallows tale in a series of lectures and local radio broadcasts in the early 1930s.

In 1936, someone at NBC had read enough of Ainsworth’s reports to be convinced that a national live broadcast reporting the birds’ return that year would be a hit. He called Ainsworth, who wrote that the prospect shook him.

For a decade he had reported the birds’ return, “but did the swallows really arrive on the morning of March Nineteenth with the unerring fidelity we credited to them? I confessed to myself I had no idea whether they did or not.”

Ainsworth ends his yarn by reporting he personally confirmed that year that the mission was bereft of swallows until the big day, when he saw them arrive in great numbers. “The day of rejoicing was come. Las Golondrinas (the swallows) were home again, on time.”

Similar reports went out over the radio in subsequent years, and songwriter Leon Rene recalled innumerable times that he was listening in 1939. According to Rene, he heard the announcement that the swallows were heading north and remarked to his wife, who was cooking breakfast, “Do I have to wait till the swallows return to Capistrano before I can eat?”

Whether Rene ate or wore his breakfast is unknown. But the resulting song, Rene’s “When the Swallows Come Back to Capistrano,” sold 3 million records and cemented the Capistrano legend into history.

In subsequent years, local and national press faithfully relayed reports that:

* The birds migrate from the Holy Land, carrying twigs upon which they float when they need rest crossing the Atlantic. (Ornithologists say the swallows winter in Argentina and need no life rafts.)

* The swallows’ precision is such that they arrive at 7:02:37 a.m., “their traditional time of arrival ever since Father Junipero Serra built the mission in 1776.”

* The swallows fly to the original site of the mission farther inland, circle the site three times, then appear at the present mission.

* Swallows observed before St. Joseph’s Day are “scouts.”

* Swallows appearing elsewhere are “errant” or “lost.”

* The swallows recognized O’Sullivan “as a blood brother of St. Francis of Assisi, patron saint of birds and animals, and thus took up their annual summer residence at the mission ever after.” (O’Sullivan arrived at the mission in 1910.)

* After O’Sullivan died, the returning swallows evinced grief at his absence.

One wire service reported that the “white swallows” had arrived on time, obviously mistaking the ever-present white pigeons. In more recent times, variations of the headline “Legend Hard to Swallow” have appeared repeatedly in Orange County newspapers, but such efforts have not stemmed the stream of tourists on March 19.

That’s because seeing swallows that day is something of an act of faith, explained former Capistrano mayor Roy L. Byrnes in 1974.

“If it’s the 19th of March and it flies, it’s a swallow.”