People v. Lo Cigno

• Decision Date: 26 June 1961
• Docket Number: Cr. 7253
• Citation: 14 Cal.Rptr. 354,193 Cal.App.2d 360
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Sam LO CIGNO, allas: Sam Lombardo; True Name: Sam Locigno, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 354

14 Cal.Rptr. 354

193 Cal.App.2d 360

PEOPLE of the State of California, Plaintiff and Respondent, v. Sam LO CIGNO, allas: Sam Lombardo; True Name: Sam Locigno, Defendant and Appellant.

Cr. 7253.

District Court of Appeal, Second District, Division 3, California.

June 26, 1961.

Rehearing Denied July 25, 1961.

Hearing Denied Aug. 23, 1961.

Paul Augustine, Jr., Russell E. Parsons, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Sam Lo Cigno, indicted for the murder of Jack Whalen, also known as Jack O'Hara, was convicted by verdict and judgment of murder of the first degree; his motion for new trial was denied, he was sentenced to state prison for life and he appeals from the judgment and the order denying his motion for a new trial.

The homicide took place December 2, 1959, shortly before midnight, in a restaurant known as Rondelli's in the San Fernando Valley in Los Angeles County. The Killing was accomplished with a .38 caliber revolver in the hands of defendant. The surrounding circumstances were witnessed by a number of persons, patrons of the cafe, who were called as witnesses and gave testimony of what they had observed. Although some apparently saw more than others, upon the main features of the occurrence their versions were substantially the same. Along the north east and west walls of the room were booths with tables. There were four tables midway between the easterly tables and the center of the room. One of these was table 15. In the center of the room there were two tables, adjoining which was a planter box, then cocktail tables and beyond that a bar. Many patrons were in the room, a number of whom gave testimony, namely, Roger Leonard, Robert 'Rocky' Lombardi, Harry Diamond, Toni Ross and her husband Michael, Jack Gotch, Claretta Hashagen, also known as Sandy Hagen, Michael 'Mickey' Cohen, Joe Friedman, also known as Joe Mars, Jo Wyatt, Ona Rae Rogers, George G. Piscitelle, also known as George Perry, and Anthony Amereno, also known as Tony Reno.

The following is a brief description of the shooting of O'Hara. At about 11:40 p. m., at table 15 were seated Lo Cigno, Piscitelle, Roger Leonard, Joe Di Carlo, Claretta Hashagen and Mickey Cohen. O'Hara entered the restaurant through a door leading from the kitchen. He walked through the bar area and came to a phone booth where Amereno was making a call. Earlier that day, Amereno had talked with O'Hara by phone, O'Hara had made threats against Piscitelle and Lo Cigno regarding a gambling debt and Amereno had spoken in favor of Piscitelle and Lo Cigno. O'Hara pulled Amereno out of the phone booth and shoved him toward the dining room area, asking 'Where's them friends of yours, them two Dagos? * * * Where are those two Dago bastards? They're going to go. Are they in there?' and Amereno replied 'Yes, in the back.' O'Hara then shoved Amereno into the dining room area. Amereno went back to the end of the bar, where he remained. O'Hara went to table 15, where Piscitelle was seated, put his left hand on the right shoulder of Piscitelle and asked the latter if he had something to talk to him about. Piscitelle replied 'I don't have anything to talk to you about, Jack.' O'Hara was described as being 'very, very angry.' He hit Piscitelle in the mouth, knocked him off the chair and to the floor. O'Hara took hold of a chair; there was testimony that he raised it off the floor and also that he made a move across the table toward Lo Cigno and said 'You're next, you Dago bastard.' Lo Cigno fired two shots. One went into the ceiling and the other struck O'Hara in the forehead, causing his death. Lo Cigno left, remained in hiding for several days, surrendered to the police and stated that he had shot O'Hara in self-defense.

In a trashcan in the rear of a building adjoining the restaurant the police found a cellophane bag containing three .38 loaded revolvers. None of these had been fired and none was traced to defendant, or any of the persons present at the time of the shooting. All were introduced in evidence over objection of defendant, as will be explained.

The grounds of appeal are (1) claims of misconduct on the part of the District Attorney's deputies in 13 specified instances; (2) error in the admission of the guns in evidence; (3) improper statements made by the court to the jury with respect to the good faith of the prosecutor in conducting improper cross-examination; (4) error in instructing the jury with respect to the burden of going forward with proof of self-defense; (5) failure of the court to advise the jury to acquit; (6) failure of the court to give of its own motion an instruction on manslaughter; (7) insufficiency of the evidence to prove the offense of first degree murder and (8) failure of the court to reduce the offense to manslaughter.

It is conceded in defendant's brief that the evidence was sufficient to support a conviction of voluntary manslaughter, and it is contended that if the judgment is not reversed, it should be modified to voluntary manslaughter.

The circumstances of the killing were described in greater detail in the testimony of defendant and his witnesses. There was a wealth of evidence and, in fact, it was expressly admitted by the People, that O'Hara was a bookmaker and 'muscleman,' and that he specialized in collecting gambling debts by means of threats and violent and brutal assaults upon his victims. He was six feet tall and weighed 230 pounds. There was evidence that he claimed Piscitelle and Lo Cigno owed one Al Levitt $900 on a gambling debt, which he was determined to collect for Levitt.

Robert Lombardi testified that he and one Herrera preceded O'Hara to Rondelli's. They had been making a round of bars and from 8:30 on O'Hara had had 10 or 15 drinks. He asked Lombardi if he knew Perry (Piscitelle) and Lo Cigno, saying they owed him $900 and he was going to collect it; he knew they 'hung out' at Rondelli's. O'Hara asked him to go along to protect him from the back as he could take care of anything in front, himself; O'Hara was a collector of gambling debts; he had never known him to carry a gun or knife, but he had seen him use his fists.

George Piscitelle testified that prior to December 2 he had related to defendant several instances in which O'Hara had brutally beaten several men. He and defendant were placing bets with a bookmaker who was working for Al Levitt. He was familiar with defendant's physical condition, knowing that he suffered from stomach trouble, required special food, and was still suffering from the effects of an automobile accident. On December 2 he was living with Anthony Amereno (Tony Reno) and defendant was living with Joe Di Carlo. He told Lo Cigno that on the morning of December 2, O'Hara called him and, among other threats, told him that he and defendant owed $900 and if they didn't pay that he was going 'to bust their heads and kill them,' all the while 'yelling in a belligerent voice.' Lo Cigno asked 'What am I going to do'; Piscitelle and Lo Cigno were greatly frightened and they remained in their apartment until they went with Di Carlo to Rondelli's for dinner.

Tony Reno testified that he was staying as Piscitelle's apartment. In addition to the telephone booth episode at Rondelli's he testified the O'Hara called by phone and talked with Piscitelle. One John Petiva called Reno and they met at a hotel on Sunset Boulevard to discuss O'Hara's demands. Petiva told Reno of a conversation he had had with O'Hara. Reno and Piscitelle went to defendant's apartment. Reno related to Piscitelle and Lo Cigno his conversations with Petiva who had told him that O'Hara had talked with him and was 'very hot at these two guys' (Piscitelle and Lo Cigno) and called them vile names. Reno also reported that Petiva had called O'Hara and had put Reno on the phone, and that he had told O'Hara that 'they didn't have the money right now,' and O'Hara replied that he didn't care what happened he was going to get them both 'They have both got to go'; Reno told Lo Cigno 'You're in for a lot of trouble, like he said. I don't know what you're going to do. He is going to bust you all up; he is going out of his mind.'

Michael Rizzo testified that he and defendant had formerly lived in the same apartment the preceding summer. He had related to Lo Cigno an experience that he had had with O'Hara. He told Lo Cigno that O'Hara had come to the apartment, had sat down and appeared quite friendly, asked how Rizzo felt, knowing that he had had a couple of heart attacks, and asked 'How you been doing?' and then said 'You're going to be with me. * * * Whatever you do, it don't make any difference what you do, you're with me now.' He struck Rizzo on the eye leaving a big scar and struck him on the nose, eyes and lips, cursing him and saying 'I'm going to kill you.' O'Hara demanded money and looked through the apartment, saying that he would be back for $300.

Defendant testified that he was 37 years old, 5' 8 1/2"' in height, weighed 150 or 155 pounds and had received a medical discharge from the army for a condition which required him to maintain a special diet. He was suffering from injuries received in an automobile accident. His former apartment had been broken into and torn up; the following week he bought a loaded gun from Willie Ginsberg for $35, which he kept in the glove compartment of his car. He and Piscitelle had placed a football bet with Al Levitt and had won $390; they had received $140 and they were still owed $250. He did not know O'Hara, had never talked with him or placed a bet with him. He did not owe O'Hara or Levitt any money. He testified to Rizzo's account of his meeting with O'Hara and to his conversations with Piscitelle and Reno, in which they related to him their conversations with O'Hara, and the conversation with Petiva. Di Carlo had planned to have dinner at...