People v. Lo Cigno

FILES, P. J.

The single issue argued on this appeal is whether the dismissal of an indictment, following defendant’s conviction and reversal of that conviction, barred his subsequent prosecution on a second indictment for the same offense.

In superior court ease number 222583 defendant was charged by indictment with the murder of Jack Whalen.

[471]

After a trial by jury defendant was found guilty of murder in the first degree and the penalty was fixed at life imprisonment. Defendant appealed, and obtained a reversal of the judgment, both because of insufficiency of the evidence and because of errors of law occurring during the trial.

(People

v.

Lo Cigno,

193 Cal.App.2d 360 [14 Cal.Rptr. 354].) The case was then set down for a retrial to commence November 8, 1961, in department 105.

On October 31, 1961, in superior court case number 249782, the grand jury returned a secret indictment containing two counts. The first charged Sam Lo Cigno, Michael Cohen, Roger Kallman Leonard, George Perry and Joseph De Carlo with the crime of conspiracy to commit murder in violation of section 182 of the Penal Code. Count II charged the same five persons with the murder of Jack O’Hara, also known as Jack Whalen.

On November 8, 1961, in case 222583, defendant appeared with his counsel in department 105, and moved for leave to withdraw his plea of not guilty to the original indictment and substitute a plea of guilty of manslaughter. The People opposed the motion and the court denied it. The court then made an order which (as subsequently corrected

nunc pro -tunc)

reads: 11 This case is dismissed under section 1385 Penal Code in the interests of justice and for the reason that another indictment relating to this charge has been returned and filed.”

In ease 249782 defendant Lo Cigno pleaded “not guilty” and “once in jeopardy.” Each of the other defendants pleaded “not guilty.” There was a jury trial which resulted in the court declaring a mistrial on April 10, 1962, because the jury was unable to agree upon a verdict. On April 18, 1962, all five defendants moyed for a dismissal. Thereupon the court dismissed the conspiracy count as to all defendants and dismissed the murder count as to all defendants except Lo Cigno.