Jack
Jack ” The Enforcer” Whalen a/k/a Jack O’Hara DEAD ON THE FLOOR in Rondelli’s
COUNSEL
Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney General, for Respondent.
Paul Augustine, Jr., and Russell E. Parsons for Appellant.
OPINION
SHINN, P. J.
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 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, {Page 193 Cal.App.2d 365} 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 6 feet tall and weighed 230 pounds. There was evidence that he claimed Piscitelle and Lo Cigno {Page 193 Cal.App.2d 366} 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 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 to 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 {Page 193 Cal.App.2d 367} 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 feet 8 1/2 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 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 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 {Page 193 Cal.App.2d 368} was “terrified,” “petrified,” at the thought of O’Hara’s threats. He witnessed the assault upon Piscitelle in the restaurant. O’Hara looked at him, started to lunge and said “Now, you Dago bastard, I’m going to kill you.” He did not recall what happened to his gun. After the shooting and before he turned himself in to the police, he was frightened at the thought of what O’Hara’s friends or family might do. His physical condition was poor. While in the service he had been in a hospital for 90 days and after his discharge was in the Veterans Administration Hospital in Ohio for about a year. He had to be careful of his diet
As a result of an automobile accident he suffered from injuries to his neck, right arm and chest, for which he was receiving treatment. He had been in California since 1944, had been working for an asphalt company and was expecting to go to work as a bartender. He frequently took his meals at Rondelli’s, where he received special foods. He occasionally placed football bets but seldom bet on horses. He recounted the conversation in which Rizzo had related to him his encounter with O’Hara and described Rizzo’s condition after he had been beaten “it was an awful sight.” He had been told by Piscitelle that the latter had had a talk with Al Levitt, who claimed that Piscitelle owed him $900, while Piscitelle was claiming that Levitt owed him a balance of $250 and Levitt had said: “Well, look, I am through with the thing. I am having J. O. call you. Do you know who J. O. is? Well, that’s Jack O’Hara.” Levitt said O.K. and about five minutes later O’Hara called and uttered the threats that have been previously described. He had no doubt that O’Hara would carry out his threats. On December 2 he did not drink any alcoholic beverage.
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, 17 Cal.App.261, 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 {Page 193 Cal.App.2d 369} accept appellant’s theory [the bad reputation of Cohen] then it becomes the thing for the ‘bad man’ to do, when he is planning a murder, to associate himself with a notorious gangster and carry out the killing when he is beside him.”
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 trashcan 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 O’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.
[1] 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.
Hollywood goodfella 
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