People v. Lo Cigno

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 Goteh, Claretta Hashagen, also known as Sandy Hagen, Michael “Mickey” Cohen, Joe Friedman, also known as Joe Mars, Jo Wyatt, Ona Rae Rogers, George G. Piseitelle, also known as George Perry, and Anthony Amereno, also known as Tony Reno.

The following is a brief description of the shooting of 0 ’Hara. At about 11:40 p.m., at table 15 were seated Lo Cigno, Piseitelle, Roger Leonard, Joe Di Carlo, Claretta Hashagen and Mickey Cohen. 0 ’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 Piseitelle and Lo Cigno regarding a gambling debt and Amereno had spoken in favor of Piseitelle 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.

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 6 feet tall and weighed 230 pounds. There was evidence that he claimed Piseitelle and Lo Cigno

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 A1 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 at Piscitelle’s apartment. In addition to the telephone booth episode at Rondelli’s he testified that 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

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 sear 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 feet 8% inches 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 A1 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 Rondelli’s and defendant decided to go along “as long as he was going to be in a public place.” He had no idea that O ’Hara would be there. When they arrived he took the gun from the glove compartment of the car and placed it in his pocket. He knew O’Hara’s reputation and had been told that he had knocked out a police officer with a single blow and cracked the officer’s head. A year and a half before, a bartender had told him that O ’Hara had put the owner of the bar up against a wall and beaten him until he said “give him all the money in the register before he kills me.” He

Michael “Mickey” Cohen was one of the witnesses for defendant. He is a character well known to the police. We may assume that the jurors in the course of the trial had learned enough about Mickey Cohen to be able to classify him as a notorious ex-mobster and racketeer. His unsavory reputation was harped upon by the People as the most potent evidence that the killing of O’Hara was premeditated. In the brief of the attorney general it is said: “Mickey Cohen is a notorious figure and there is appellate authority to that effect. (Cohen v. Superior Court, 173 Cal.App.2d 61 , 71 [ 343 P.2d 286 ].) If it is of any help to the court, we add to it our representation that Cohen was probably known to the jury as well as to our Appellate Courts,” and further “If we

The case we are reviewing could truly be called “The trial of Mickey Cohen.” The company defendant was in at Rondelli’s characterized him as an associate of criminal elements. There was little reason to doubt that the three loaded guns that were found in the trashean had been deposited there by associates of Mickey Cohen. There was no evidence that defendant had made an arrangement to meet Cohen or any of his friends at Rondelli’s, although it was a restaurant they frequently patronized. There was no evidence that defendant knew 0 ’Hara, had ever met him or held any grievance against him. There was nothing in their relations except O’Hara’s declared intention of collecting $900 from Piscitelle and defendant for Levitt, and a denial of defendant and Piscitelle that they owed the money or any part of it. They had no claim against O’Hara, but they did claim that Levitt owed them $250.

We are of the opinion that the killing of O’Hara was not proved to be murder of the first degree.

Murder is the unlawful killing of a human being, with malice aforethought. (Pen. Code, § 187.) “All murder which is perpetrated by means of poison or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing ... is murder of the first degree; and all other kinds of murders are of the second degree.” (Pen. Code, § 189.)

In order to support a finding that the killing was murder of the first degree, substantial evidence would have been required that defendant deliberately formed and held an intention to shoot and kill O’Hara when they should meet. Such an intention would have supplied the element of malice, namely, the deliberate intention to unlawfully take away life of a fellow creature (Pen. Code, § 188), and the element of premeditation.

The evidence, both direct and circumstantial, indicated that defendant was on the defensive, that he was not only not looking for O’Hara, but that he had an intense desire to avoid an encounter with him.

There was no evidence of any statement by defendant of his intentions toward O’Hara and nothing in the circumstances of the shooting which tended to prove that the slaying of O’Hara was a premeditated act.

Considering first the question whether the killing of O’Hara was “by means of wilful, deliberate, and premeditated killing, other than by poison or lying in wait or torture,” we are compelled to conclude that the evidence was insufficient to prove a killing of that type. Premeditation necessarily exists where the killing is by means of poison, lying in wait or torture. With respect to a killing by other means, we are convinced that there was less evidence of premeditation on the part of Lo Cigno than was shown in either of the Holt or Bender cases. In fact, no evidence was produced by the People which tended to prove premeditation except through tenuous circumstances which the People relied upon to prove the existence of a conspiracy between Lo Cigno and Cohen, and perhaps others, in pursuit of which several friends of Cohen, including defendant, armed themselves and, expecting 0 ’Tiara to appear, lay in wait for him. We are further convinced that there was no substantial evidence of the existence of such a conspiracy and no substantial evidence that the killing of O’Hara was in any other manner, or at all, premeditated by Lo Cigno. In reaching these conclusions we have been guided by the statement of the court in People v. Bender, supra, 27 Cal.2d 164 , 186: “ ‘But as is true as to all factual issues resolved by a jury, the evidence upon which the determination is made is subject to review on the question of its legal sufficiency to support the verdict. To the extent that the character of a particular homicide is established by the facts in evidence the jury is bound, as we are, to apply

It has been the theory of the People throughout that defendant was lying in wait for O’Hara. There was an undisguised effort to link defendant and Cohen together in a purpose to get rid of O’Hara. It was made clear that the People regarded it as significant that defendant was seated beside Cohen at the table. In an opening statement it was asserted that the bullets came from next to where Cohen was seated. There was persistent effort of the deputies to make Cohen the central figure in the trial. Numerous instances of these efforts will be discussed.

We shall first consider an occurrence during Cohen’s cross-examination which unquestionably requires reversal of the judgment. Cohen had testified that to the best of his recollection he had never seen 0 ’Hara before the night of December 2, did not recognize him, nor speak with him. In the cross-examination, the following occurred: “ (Mr. Ford) Q. At any time that evening did you say the words ‘Now, Sam, now?’ A. How can you ask a man that question when it is absolutely false. That’s absolutely false and you know it. Q. I am asking you. Answer yes or no. A. You know it is false. Q. Did you say the words, ‘Now, Sam, now?’ A. That’s absolutely untrue. Q. May we have a direct answer, yes or no ? The Court : In other words, is the answer that you did not say it? The Witness: I did not say it, sir.”

When the question was asked whether Cohen had made the remark, no objection was interposed. This is understandable. The attorneys for defendant assumed, and the court stated that it also assumed, at the time, that the district attorney was prepared to present evidence that Cohen had made the remark. It was not until a later stage of the case, when the People had rested without offering any evidence that Cohen had made the remark, that defense counsel made the following motion: “Mr. Strong : At this time, your Honor, I move

The questions and answers were read to the jury, after which the court again instructed the jury that the matter just read was stricken and that the jury was not to draw any inferences or conclusions from the testimony or any inferences from the question.

The matters before the court were the defendant’s motion that the question asked Cohen and his answer be stricken, and the assignment of the asking of the question as misconduct. They were for the consideration of the court alone, and could properly have been brought,to the attention of the jury only by a direction that the question objected to and the answer were stricken from the record and should not be considered by the jury. Especially, the matter of the good faith of the deputy and his reasons for asking the question of Cohen should not have been ruled upon in the presence of the jury.

Not content to let the matter rest, Mr. Busch, at the inception of his closing argument, revived it, saying: 1 ‘They talk about Sammy here. They have talked about Jack O’Hara. Now, I am going to talk to you a little bit and answer these arguments because they have impugned my integrity in this case, too. I have been in this position for eight years, and I

There had been no charge of bad faith other than the one in connection with the questioning of Cohen. The protestation of good faith to the jury in the argument necessarily related to that matter, and recalled to the minds of the jurors the court’s announced finding that the deputies had acted in good faith but had been unable to prove that Cohen made the remark. The court’s remarks on the subject constituted a gratuitous vindication and endorsement of the improper questioning by the prosecutors. No less improper was the self-praise of the prosecutor, in which he again told the jury that he had good reason for the questions he had asked.

The questioning of Cohen was manifestly improper and unjustifiable. That the question was asked in good faith was disproved by the attempted justification. As previously shown, one of the deputies, Mr. Ford, stated that he had been informed by the other deputy, Mr. Busch, that he (Busch) had been told by an investigator of the district attorney’s office that he, the investigator, had been told by an unidentified prostitute that she had been told by one Phü Packer, who was known to the district attorney’s office to be a close confidant of Mickey Cohen, that he had heard Cohen make the statement in question. This, indeed, was a pitifully inadequate excuse for the questioning.

If there had been any doubt as to the devastating effect of the question upon defendant’s case, it was removed by the statements which the court made to the jury. The question itself implied that the deputies knew, or had been reliably informed, that Cohen did make the statement “Now, Sam, now.” The court’s statement to the jury that after an investigation the court had found that the question was asked in good faith was an affirmation that the court had ascertained that the deputy had been reliably informed and believed that Cohen made the statement; and the court magnified the harm, immeasurably, by its amazing statement that the question was asked by the deputy in good faith “but that because of circumstances beyond their control they are unable at this time to follow through.” This was to tell the jury that there was at least one witness who heard Cohen make the remark, but that the district attorney, through no fault of his own was unable to produce the witness.

The undoubted purpose of the question was to suggest to the jury, and it could not have failed to suggest to them, that

While defending the questioning, the People rely mainly upon the contention that all harm was removed by striking out the evidence and instructing the jury to disregard it. This is a vain effort. No admonition, however strong, could possibly have erased from the minds of the jurors the belief that the deputy knew, and that the court had found that he knew the incriminating remark had been made, and yet the deputy, despite his desire and efforts, was unable to make proof of the fact.

Upon the present record, the only inference that would have warranted the first degree verdict would have been that the murder of O’Hara had been prearranged. The verdict implies that the jurors believed it had been prearranged between defendant, Cohen, and others. There was much in the way of insinuation and suggestion, throughout the trial, which tended to illuminate and support the theory of the prosecution that Cohen was probably the instigator of the crime, and that he had Lo Cigno seated beside him for the purpose of doing the shooting. This was illustrated in many instances in addition to the foregoing.

The theory of conspiracy was developed in another manner. In the cross-examination of Cohen, he was shown the three guns that had been recovered from the trashcan and was asked whether any of them had ever belonged to him; he replied that one of them resembled one of his guns but that he could not identify any of them as a gun which he had previously owned. He testified that after his conviction for income tax evasion all the guns which he then owned were sold at auction and he had had none of them in his possession since that time. It was stipulated that this auction sale took place May 5, 1951, when five guns were sold, and that none of the three guns was included in the sale. The People called Neal Hawkins, who testified that in June 1950 he was a bodyguard for Cohen; he took seven hand guns belonging to Cohen to a pistol range, where they were tested, in company with John 0 ’Mara; he identified two of the guns that had been found in the trashcan as among the seven which he had tested, and he testified that as soon as he had tested them he had returned them to Cohen. 0 ’Mara was called and testified

The three guns were offered in evidence. In chambers the People contended that the presence of the guns in the trashcan was a potent circumstance tending to prove that Cohen and his friends, including defendant, had conspired to kill 0 ’Hara. The offer was objected to and the objection was sustained. However, the court later ruled that the two identified by Hawkins as guns formerly owned by Cohen would be admitted in evidence for the limited purpose of impeachment of Cohen, and the third would be admitted for the reason that it had been shown to Cohen, and, although he did not identify it, he admitted that at one time he had owned a gun having the same general appearance. The deputy stated at the time that he did not claim that the third gun was used in the shooting of 0 ’Hara.

The three guns were not admissible in evidence for any purpose. It had already been proved that none of them was used in the shooting of O’Hara. There was no evidence whatever that Lo Cigno had ever owned or been in possession of any of the guns or had any knowledge of them. It was manifest that the presence of the guns in the trashcan some hours after the shooting indicated that several of Cohen’s friends had come armed, but it did not tend in the slightest to establish any of the circumstances of the killing. The guns had no relation to a fact in dispute and did not make up an item in the sum of the evidence, which would have been required to justify proof of their presence in the trashcan. (Code Civ. Proe., § 1954.) It is an elementary rule that weapons or other articles which might have been used in the commission of a crime are inadmissible in the absence of evidence tending to prove that the weapon or article was in the possession of the defendant. (People v. McCall, 10 Cal.App.2d 503 [ 52 P.2d 500 ] ; McBaine, California Evidence Manual [2d ed.], § 583, p. 189.) Usually, evidence of the existence of the material object is introduced for the purpose of proving that it was a means of the commission of a violent crime. Here, receipt of proof of the presence of the guns for all purposes would have tended to prove only the existence of a conspiracy between Cohen, and the possessors of

The cross-examination of Cohen with respect to his ownership of the guns was upon an immaterial and irrelevant matter and the People were bound by his answers. It is an invariable rule that the testimony of a witness elicited on cross-examination cannot be impeached by contrary evidence unless the testimony sought to be contradicted was relevant and material as proof of a fact in issue.

In People v. Malicoat, 89 Cal.App.2d 742 , 745 [ 201 P.2d 850 ], the court pointed out the error of eliciting evidence of impeaching character without laying a proper foundation and said further: ‘1 The more grievous error, however, was to allow the testimony at all. It is elementary that a cross-examiner is bound by the witness’ answer to irrelevant questions and ‘may not cross-examine his adversary’s witnesses upon irrelevant matters for the purpose of eliciting something to be contradicted.’ (27 Cal.Jur., Witnesses, §81, p. 107.) If the witness had answered the improper questions put to her on cross-examination in the affirmative the damage to the defendant would be clear. (People v. Padilla, supra, 143 Cal. 158 [ 76 P. 889 ].) The damage is equally clear when the evidence is introduced as impeachment of the witness’ testimony given in answer to the improper questions put on cross-examination. (People v. Worthington, 105 Cal. 166 [ 38 P. 689 ].) It is true that the court instructed the jury that the evidence was introduced only for impeachment purposes and was not to be considered as proof of the truth of the facts stated. Where evidence is properly admissible for a limited purpose only the courts recognize the danger that it may be improperly considered by the jury for other purposes (Adkins v. Brett, 184 Cal. 252 , 256-259 [ 193 P. 251 ]) but that is a risk which must ordinarily be taken if the evidence is admissible for some purpose, and a cautionary instruction limiting its use to the proper purpose is all the protection that the party can be given under the circumstances. For

To the same effect are People v. Farnell, 156 Cal.App.2d 393 , 401 [ 319 P.2d 749 ], and People v. Burness, 53 Cal.App.2d 214 [ 127 P.2d 623 ], where numerous cases are cited.

When the court ruled that the presence of the guns was immaterial to any issue in the case the force of the ruling was to bar the evidence for impeachment purposes. Furthermore, the presence of the guns in the trashcan and proof that Cohen had previously owned two of them was not contradictory of anything to which he had testified. He did not deny having owned them. It was not claimed by the People that the evidence of the presence of the guns was offered for the purpose of impeachment of the testimony of Cohen with respect to anything other than his testimony that all his guns were sold in 1951. This testimony was not impeached by the presence of the guns in the trashcan. There was no justification whatever for admission of the guns in evidence for any purpose.

It was forcefully argued to the trial court, as it is here, that the display of the guns throughout the trial, their exhibition to the witnesses and the jury, and their introduction in evidence was extremely prejudicial. We are in full agreement. Notwithstanding the fact that it was not proved that any of the guns was in the possession of any of the persons who were seated at the table where defendant was seated, the jurors would have understood that it was the purpose of the People to show that three of Cohen’s and Lo Cigno’s friends had come to the restaurant armed. This purpose of the People was clearly disclosed to the court in urging admission of the evidence. Although it warranted a strong suspicion that the several persons at the table were armed, it was not evidence of a conspiracy to shoot O’Hara. Whatever the purposes of others may have been, they could not be imputed to defendant on mere suspicion. The jurors could not have failed to entertain a strong suspicion that the guns had been provided by Cohen for use in the slaying of O’Hara. The very fact that they were introduced as impeachment of the testimony of

Defense counsel correctly argued to the court that the shooting of 0 ’Hara was being pictured as a “gangland” crime, the rubbing out of one gangster by another in the course of underworld warfare.

After the court had ruled that evidence of the presence of the guns would be received for the purpose of impeachment only, the defense requested that the jury be instructed that it was not to be considered for any other purposes. The court declined to give that admonition, stating, “We will instruct the jury in all matters of law at the proper time, and expect counsel to prepare a special instruction on that situation.” The People submitted nothing. The defense submitted and the court gave the following instruction which did not purport to take the place of the requested admonition: “Some evidence has been admitted as to alleged prior inconsistent statements made by some witnesses. Such evidence is not to be considered by you for any other purpose than in weighing the credibility of the witness. You are not to accept any of the statements as to the truth of their contents. You may disregard any part or all of such statements, if you see fit to do so. You are the sole judges of the credibility of the witnesses.”

The instruction was not applicable to the evidence concerning the guns or the testimony of Cohen. It was utterly without meaning as an admonition. The responsibility rested with the court to give a proper admonition. This it failed to do.

However, if the court had admonished the jury to consider the evidence only as impeachment of Cohen, the error of admitting it at all would have been rendered no less glaring and harmful.

Nothing could have removed the impression in the minds of the jurors that there were at least three persons who, in concert with defendant and Cohen, were lying in wait for 0 ’Hara. The tendency of the evidence to prove deliberation and premeditation was undeniable. The error of the court was

There were other attempts to prove that the killing had been prearranged. Roger Leonard was called by the People. He was shown a fingerprint card, and over objection, answered that he remembered having placed his fingerprint on a card. He identified his signature on the card. He was shown the cellophane bag and the three guns and was asked whether he recognized them, and stated that he did not. He was shown the guns separately and denied having ever had any of them in his possession, or having touched any of them. He was asked whether he had seen Lo Cigno touch any of the guns the night of December 2 and answered in the negative. Outside the presence of the jury, the People requested permission to have Leonard fingerprinted by an expert in order to lay a foundation for evidence that Leonard’s fingerprints were on one or more of the guns. Objection was made that the prosecutor was attempting to impeach his own witness. In answer to a question by the court, the prosecutor admitted that evidence that Leonard’s fingerprints were found on one or more of the guns would affect his credibility, but he denied that his purpose was to impeach the witness. When the court declined to order Leonard to submit to fingerprinting, the prosecutor announced that he would proceed by another method to prove that Leonard’s fingerprints were on the gun. He called Andrew Durko, a police officer, who identified the card as one he had made out and upon which Leonard, while under arrest, had placed his fingerprint. This evidence was received over objection and a motion to strike the same was denied. The People called A. R. McLaughlin, and qualified him as a fingerprint expert; they produced a fingerprint card bearing date 12-6-43 and another bearing date 12-13-50, which were marked for identification. In chambers, the People stated they intended to prove by the fingerprint evidence that Leonard had the three guns in his possession on the night of December 2, but that they could not produce evidence that any of the guns contained the fingerprint of Lo Cigno. The People argued that since Leonard was seated at the table with defendant the fact that his fingerprints were on the guns, or any of them, would tend to show that a conspiracy existed between Leonard and defendant for the killing of O ’Hara. The People made a further offer to prove that the testimony of McLaughlin would be that there were no fingerprints of O’Hara, Rocky

The court rejected the offers of proof and later instructed the jury that the People had offered certain exhibits in evidence, and had made an offer of proof, to which the defendant had objected; that the court had ordered stricken the testimony of Leonard with respect to the identification card that had been shown him and “regarding the guns”; also, that the testimony of McLaughlin “regarding the guns and the alleged fingerprints on them,” was stricken (this was the first the jury had heard of the existence of Leonard’s fingerprints on the guns, which fact, the jury, no doubt, had already suspected); and also that the testimony of Durko relating to the identification cards was stricken. The court stated to the jury “Up until any further ruling in that connection, you will disregard those exhibits and that testimony. ’ ’ These were wasted words. By questioning Leonard, by exhibiting the cards to the fingerprint expert, and aided by the court’s disclosure of Leonard’s fingerprints on the guns, the People succeeded in informing the jury that Leonard had handled the guns. This was highly improper for the same reasons that it was improper to admit the guns into evidence. Here, again, the inescapable result was the creation of suspicion that Cohen’s friends, Leonard and defendant among them, had premeditated the murder of O’Hara. We can find no excuse whatever for the proceedings which accomplished the obvious purpose to bring about that result.

After Cohen had testified that he was not acquainted with O’Hara and that he had never had any conversation with him and to the best of his recollection had never seen him before the night of December 2, he was asked on cross-examination : “Mr. Ford: Isn’t it a fact that you had had conversations with him prior to that night? A. That’s absolutely untrue. Q. You are sure of that? A. I am positive of it. Not sure of it, but positive of it. . . . Q. Did you ever have a

Although no objection was made to this questioning, defendant did not thereby waive his right to contend that it was improper and constituted prejudicial misconduct. Defense counsel presumably believed that the district attorney proposed to prove that Cohen had had such conversations with O ’Hara, and also that he had made threats against him. The impropriety of the questioning is manifest, but we defer our discussion of it.

In his cross-examination Cohen testified that after the shooting he walked to the front entrance with Miss Hashagen and he was asked: “Mr. Ford: You hit somebody at that time?” He answered that he hit no one but he may have pushed aside a man who spoke to Miss Hashagen. Later the People produced a witness, Gerald Sumption, who testified over objection that as he and his friends were leaving the restaurant Cohen intercepted him, cuffed him and said “You stick around,” and “You are with them,” or something to that effect.

The cross-examination with respect to the occurrence of an altercation was upon a wholly immaterial matter and not subject to contradiction, for reasons previously stated. Moreover, it added emphasis to the contention of the People that Cohen was implicated with defendant in the shooting, and centered attention upon him as the active and responsible actor in the affair. It was highly improper.

Cohen testified that before dinner he left to go to the telegraph office and when asked whether he went with any one he answered that he thought he went by himself. He was asked: “Q. Isn’t it a fact that you left with the defendant Lo Cigno? A. I did not. Q. Your memory is that you left by

Cohen admitted on cross-examination that he had been convicted of income tax evasion and had served a term in prison. He was asked on cross-examination: “Isn’t it a fact that in Cleveland, Ohio in 1934 you were convicted of the felony of embezzlement?” and answered that it was not a fact. In the absence of an intention to prove this former conviction, and there was no offer of proof, the question was improper. It was brought out on cross-examination that Cohen had been a professional fighter, although he said “I wasn’t too much

Piscitelle was cross-examined as follows: “Q. When you were on your way to Rondelli’s, did you expect to see Mickey Cohen there? A. Did I expect to? Q. Yes, sir. A. No, sir. Q. You have been there quite often; is that correct ? A. Yes, sir. Q. Don’t you usually run into Mickey Cohen there when you go there? A. Sometimes. Q. Was there any discussion between you and Mr. Lo Cigno as to whether you should mention this 0 ’Hara matter, whether you should mention Mr. O’Hara to Mickey Cohen? A. Definitely not. Q. When you got there, did you discuss O’Hara with Mickey Cohen at all? A. No, sir.

In the cross-examination of Lo Cigno, he was questioned: “Now, did you receive any money from anybody for shooting O’Hara? A. Don’t be . . . definitely not.” The jury would have understood that “anybody” meant “Cohen.” The impropriety of this insinuating questioning of Cohen, Piscitelle and Lo Cigno is manifest. That the questions were not asked in good faith cannot for a moment be doubted.

In these numerous instances questions were asked of witnesses which assumed the existence of facts which would have been extremely harmful to defendant if they had existed: the question previously mentioned “Did you say the words, ‘Now, Sam, now’ the questions asked Cohen after he had testified that he had never talked with O’Hara, whether he

To all of these questions Cohen’s answers were in the negative. The district attorney had no reason to doubt they would be in the negative. He knew, of course, that Cohen would not admit having uttered the words “Now, Sam, now”; he knew, after Cohen had testified to everything that he had seen, that he would not testify that he saw Lo Cigno place a gun on the table; he knew that he would not admit having had conversations with O ’Hara in the places mentioned in the questions; he knew that Cohen would again deny having ever made any threats against O’Hara, and that he would deny having taken anything out of his pocket and having handed it to any one before the police came, and would deny having had a gun in his possession when O ’Hara came in. These and many other questions of the district attorney implied the existence of facts which the People made no effort to prove and had no reason to believe could be proved. This was misconduct. It was improper to ask questions which clearly suggested the existence of facts which would have been harmful to defendant, in the absence of a good faith belief by the prosecutor that the questions would be answered in the affirmative, or with a belief on his part that the facts could be proved, and a purpose to prove them, if their existence should be denied. In view of the incident in which the court had declared the good faith of the prosecutor, it would have been natural for the jurors to believe that he also acted in good faith in all of his other questioning, and had reason to believe the existence of facts which his questioning suggested. Such improper questioning tends strongly to deprive the accused of a fair trial. {People v. Douglas, 83 Cal.App.2d 80 [ 187 P.2d 819 ].)

We have spoken of Cohen as “an ex-mobster and racketeer” and commonly known as such. The questions asked by the prosecutor implied that it is well known that Sica enjoys a similar reputation. They clearly insinuated that Sica was of evil reputation and a close friend of defendant’s. It is said in the brief of the attorney general: “Appellant objects to the prosecutor’s question as to appellant’s association with Fred Sica or Cohen. The prosecutor was merely getting at whether appellant was really frightened. The fact that he knew and saw that night two lords of the underworld yet didn’t seek help was a circumstance demonstrating appellant’s state of mind.”

In another instance an officer called by the People produced records seized at the time of the arrest of the bookmaker, A1 Levitt. It was made plain that the purpose of the People was to prove the making of bets by defendant and Piscitelle with A1 Levitt, in order to contradict the testimony of defendant that he and Piseitelle did not owe money to Levitt. The matter was discussed in chambers and an objection was sustained. There was no effort made and no intention expressed to lay a foundation for the proposed hearsay evidence. Although the objection was sustained the jury would naturally have gained the impression that there were records which would contradict the testimony of defendant and Piseitelle with respect to Levitt’s claim against them. The matter was immaterial. The questioning was improper.

We have previously mentioned that Lo Cigno was asked whether he had been paid anything for shooting O’Hara. The question was highly improper. It was calculated to create the impression that the district attorney believed that Cohen had paid Lo Cigno to shoot O ’Hara. The purpose of this entire line of questioning was undoubtedly to create a belief in the minds of the jurors that all the insinuated facts existed or were believed by the district attorney to exist, although they were not susceptible of proof. And Mr. Busch did not overlook strengthening the impression by assuring the jury that in his eight years as a prosecutor he had never acted except in the best of faith.

It is fair to say that throughout the trial the People treated Mackey Cohen as the central figure in the murder and the others, including Lo Cigno, as merely his henchmen, subject to his directions and control. This was manifested in too many ways to be enumerated in our opinion. The direct

The People succeeded in painting a picture of what the defense characterized as a gangland murder committed by the associates of Mickey Cohen. But the effort of the People was to establish not by evidence, but by mere suggestion and innuendo, that Lo Cigno had probably conspired with the others to murder O’Hara and that the shooting was deliberate and premeditated.

One of the deputies made the most of this in his argument. He cautioned the jurors not to believe that Piscitelle and Lo Cigno were “Boy Scouts” and “This group of people aren’t special people. These Jack O’Haras, they are not special, and they get no favors. They [defense counsel] want you to think they are from the Boy Scout troop. ... It is pretty hard to get at the truth in this case with these liars that have testified here. It is like a bunch of human sewage passing through.” It is not only unseemly but most unfair for a prosecutor to stoop to such billingsgate in order to prejudice the minds of the jurors against an accused. The court should not have permitted it. At another point Mr. Busch referred to a statement of defense counsel saying “That’s a lie. That is just an unmitigated lie.” We think that it would profit some prosecutors, and judges who do not keep trial proceedings under control, to read the opinion in People v. Talle, 111 Cal.App.2d 650 , pages 672 and 673 [ 245 P.2d 633 ], and the cases there cited.

We have previously stated that the questioning of Cohen whether he had not directed Lo Cigno to shoot O’Hara re

Had the jurors not believed that a conspiracy existed for the murder of O’Hara they would have had no reason for returning a verdict of first degree murder. And as we have said, there was no word of evidence that defendant had ever mentioned to any one except Piscitelle and Amereno that he had anticipated trouble with O’Hara, and no evidence that he had arranged to meet Cohen or any of his associates at the restaurant. The deficiency of the People’s evidence to prove premeditation could not be supplied by evidence that Lo Cigno was an associate of Mickey Cohen and the other hoodlums who were assembled about him at the time of the shooting.

The People submitted instructions in the law of manslaughter but stated at the same time that “involuntary manslaughter doesn’t belong there at all. . . . Neither side wants manslaughter in there. I don’t want to argue manslaughter.” In the discussion of an instruction on voluntary manslaughter, Mr. Sugarman stated that the defendant would object to it and Mr. Strong said: “We don’t think there is any possibility. It is either murder, first or second degree, or nothing. ’ ’ When the court mentioned an instruction on voluntary manslaughter, Mr. Strong said: “That is the one we object to.” The court decided not to give an instruction on manslaughter and none was given. It is now contended that the court nevertheless should have instructed on manslaughter. Defendant is not in a position to complain of failure to give the instruction. The defense made clear the desire that the jury be instructed in a manner that would require either a verdict of guilty of murder or acquittal. Defense counsel very evidently entertained the belief that if the jury was left free to return a verdict of manslaughter it would be less likely to return a verdict of acquittal. This reasoning was not illogical, although it is now contended that the evidence warranted a conviction of manslaughter, at most. Under the circumstances it was not error to fail to instruct on manslaughter. Upon a retrial of the case appropriate instructions on manslaughter should be given.

At the request of defendant the court instructed as follows: “The burden of the proof in this case is always on the prose