*1 860
tody parties the to a of the children of divorce action even though is v. 124 Anderson, divorce denied. Anderson Cal the Rep 81, P P Am v. 48, 630, 17; Voss, 56 57 71 St Voss 157 Wis 190, Minn 634; Jacobs, 525, Jacobs v. 136 161 NW NW jurisdiction It 971. is our conclusion therefore that LRA1917D respect custody to make orders contained existed opinion original case. filed this Lastly, petition clarification of said in for a what was asks custody concerning original opinion Donald child, the Henry, Henry. made to On these the allowances Gerda opinion original However, is clear. we think matters we repeat custody Donald, son, the older awarded is that the Henry, award to he effective from Roland such defendant, entry judgment from this remittitur the date of Henry, respect made to allowances Gerda court. With respects judgment court is all ex- district affirmed per Henry cept month to Gerda for the award $175.00 Henry support Dale is increased to herself and $300.00 month. rehearing petition denied. JJ., J., Dist. concur. and'Morris, Wigen,
Christianson, [File 222] No. Cr. Respondent, DAKOTA, v. NORTH L. AUGUST OF
STATE Appellant. CH, PUS (46 508) NW2d *3 Opinion filed 30, December Rehearing 1950. denied March Miloy, appellant. (Dell, Rosengren Johnson £ £ Hufer Kennedy Counsel). £ Bradford *5 Attorney Warner, General, Forbes, and Vernon P. E. Wallace respondent. Attorney, for State’s *6 Lydia August defendant, L. Pusch, J. The Christianson, against Attorney of State’s Richland were informed
Witt County, of the mur- information were accused such Sep- day county the 26th one Pusch in of der of Minnie said on 3, 1948, November tember, 1947. The information was dated presented of and ordered officeof the Clerk filed day. County in- of Richland that same District Court alleged: formation Attorney within and for the Coun- D. State’s Forbes, “Vernon Dakota, the above
ty North accuses and State of Richland Lydia August Witt, with the L. Pusch and defendants, named degree, follows, to-wit: committed as in the first murder crime day September, 26th “That, about the on and named County Dakota, the above North Richland State wilfully, Lydia August un- Witt, did, L. Pusch defendants, premeditated design feloniously, lawfully a and with being, living a Pusch, one Minnie human ad- effect the death of administered, to the said Minnie Pusch, cause be minister, and strychnine, deadly poison, from said which the Minnie to-wit: then and there died.” Pusch
Lydia separate grant- for a trial which moved motion was Witt change ed. the defendant Pusch moved for Thereafter *7 place provisions pursuant of of trial to the NDRC Sec 29-1501. The defendant Pusch The motion was denied. entered plea brought guilty a for and the action was trial of not on be- jury presiding fore a Honorable H. as with the Wm. Hutchinson judge. The.jury finding returned verdict the defendant Pusch degree punishment guilty fixing in the of murder first as his imprisonment penitentiary in State’s life. The defend- ant moved for new trial which denied was and the defendant appealed judgment of has from conviction and from the denying motion for a trial. order new quite transcript
The trial extended. The was of the evidence upon proceedings aggregates adduced and the the trial more large pages. than 900 There are also a number of exhibits in- cluding certain letters or notes some written the defendant by Lydia Lydia The and others written Witt. defendant Pusch, all Witt, and her husband Otto Witt were sworn and testified as According the trial. witnesses to the evidence Minnie approximately years the time of her death was Pusch at 60 of August age approximately defendant, and the L. was Pusch, 60 years age. of The defendant and Minnie Pusch were married in together October 1909 and lived husband as and wife from the marriage their until the time of death Minnie Pusch. Accord- testimony ing defendant, to the he and wife, his Minnie Pusch, never had sexual The relations. defendant Pusch Wahpeton in wife, Minnie, moved to 1943 where the defend- employed manager grain ant was as of a local elevator owned operated by, Peavey Company. He Elevator continued employment January company in such until 1948. The elevator they vicinity owned in the elevator fur- a residence occupied manager defendant nished to the and which was during they Wahpeton wife in and Ms time lived until the death Minnie Pusch.
Lydia Witt, named in the information co-defendant of August L. Pusch, is wife of one Otto Witt. Otto Witt and They Ms 1923. wife were married in lived a farm in the on vicinity Wahpeton they Wahpeton when moved to 1942or had four children. Witt had been a farm- Otto employed by er Ms life until he all was defendant Pusch managed employ- work elevator then him. After such family Wahpeton occupied ment the a home Witt moved occupied by de- about a half from the home located block discrepancy some fendant Pusch testimony Ms wife. There is Wahpeton. Witt as to when-Witt moved to testified that it that it was 1942. The defendant Pusch states Pusch, 1943. Minnie worked at elevator as a deceased, period approximately years bookkeeper for a after Witt two employed during time there and Mrs. Witt took care household duties and the two of the Pusch families of some dispute friendly the evidence However, terms. shows without *8 August defendant, Pusch, between the L. that relations Lydia intimate and that illicit sex later became relations Witt in 1943 1944 and the two commenced continued until between May discrepancy they 1948. There is a in arrested began. Lydia testimony the illicit sex relations Witt to when August May defendant, Pusch, 1943 L. as in time fixes They agree, of 1944. however, the fall that inas time fixes relationship that after it con- existed and commenced such place place including from to time and time from tinued Wahpeton Lydia*Witt of until arrest the defend- of home May Lydia 1948, in Arizona where Witt ant Pusch holding together living hus- themselves out to be were then Lydia gave to a November 1945 birth wife. In Witt band and She that the named Barbara. testified child who was female father this child. The defendant was the Pusch defendant preg- told him she was in March 1945 Mrs. Witt testified that having sex he had been he then told his wife that nant, and that pregnant. He that had become Witt, with Mrs. relations she testified that when the further child born he told his wife about the birth and that he the father of the child. The ailing that evidence shows Minnie had and in Pusch been hospital City neighboring Breckenridge. in a been had hospital August she returned her home from 4, When on employed Amundson, 1947, the defendant Pusch one Mrs. an elderly woman, come and live at their home, take-care and attend Minnie housework Pusch. Mrs. Amundson worked present until after Mrs. at there Pusch died. She was the time evening of Mrs. death. She testified that Pusch’s September very ill; Pusch became that had 25,1947,Mrs. she con- requiring that not to fall out bed; vulsions she be held so as that the convulsions until after 7 o’clockafter did start evening; came home defendant Pusch that Otto Witt was help Thompson Pusch; called over to care Mrs. and that Dr. nearby went to was also called. She testified that she a store arrived while out; and that Otto had she was Witt as she giving came in the door she observed Pusch his wife some medi- “take relax.” said, cine and that he these and She testified that given any never Mrs. Pusch of the so-called she had vitamin given pill pills; sleeping pill; her the nerve she pills except when that she did not see the vitamin she saw them giving teaspoon wife; them to his when Pusch was that he pills. kept the vitamin defendant Pusch testified that when evening September he came home about six or after on the 1947, he went into the bedroom and that said, his wife “Au- gust dreadfully getting spell, amI sick, call Otto and the doc- right away;” tor that he called Witt and called the doctor but get was unable to him; he asked wife if she had had supper, that she answered she food;” “couldn’t stand at to look *9 you you try and that he ought said, “don’t think to to eat or one two of food;” mouthfuls that the -doctor had told him to insist possible on food as much aspirin because of the amount of taking day; she each that she answered she coiild not eat but would take her medicine; that about this time came Witt (Pusch) and that he does not know how much he heard but that give Witt saw him her the medicine. Pusch that testified on the evening September gave pills 1947,lie his wife two 25, of presence Mr. that one Witt, and of these was one so- pills. called vitamin testified that the defendant Pusch Witt September evening 25, 1947, 7 o’clockin the called him about saying quite- him to over that Mrs. and asked come Pusch was that he he that Mrs. sick. He testified when arrived found having shaking spell; in bed that Amundson Pusch was Mrs. holding hips, that her her Pusch held the shoul- they ders, he, Witt, down; that held knees that -were- and they fall if her; out of bed did hold that afraid she would time; for some that then said, this continued Pusch “This can’t sleep- night;” go that to wife, on all he said “You take these lay sleep;” ing pills go down relax and and to that he took sleeping pills of a what denominated out bottle in the Witt (Mrs. Pusch) any pills,”' said, corner, “I don’t sleep, that she want pills, go go got I have said, that he “Take these to- pills, got gave that he tomorrow,” he her then work gave her another one took another one and bottle and gave pills her gave that after he “she- afterwards; water her .they Thompson got called the doctor. Dr. and that terrible” patient September first became his Pusch Mrs. that testified hospitalized; her that from that time he had at that that 1946; prescribed medicine her and for her to see on he continued time pre- among other he that medicines He testified treatment. given capsules complex that these were B vitamin scribed during to the home- He he called Pusch testified that was 1947. September evening he Pusch 25, found Mrs. on the convulsions, he had observed convulsions on four .severe September prior during August 1947; that five occasions September hypo evening gave he a sixth 25th her twenty gave, grain morphine fifteen or later of- about minutes grain; any effect. her a did not seem to twelfth -have testimony According 10 or other doctor arrived about quieting- gave hypos purpose 10:30; her for the two much that a few minutes her; effect, that the first did not have quiet gave later he her her another which seemed somewhat. September 26,. 2 A.M. Minnie between A.M. and died Pusch
871 according testimony, that the doctor, to his believed 1947; the although brain in the death certificate tumor, death of was cause body myocarditis. The of Mrs. the cause of death as he listed where the Mitchell,-South Dakota, burial was taken to Pusch cemetery years, purchased before. a lot in the some had Puschs accompanied by body Pusch, Witt and Mrs. and place September burial took Mrs. Amundson. The Witt, and 1947 at in November house and 30, 1947. Later sold his Witt family suggestion moved Pusch Witt of the defendant occupy- Minnie that Pusch and his wife been into the house occupying ing that he and the Witts he then and and which February shows Lydia 1948. The evidence to live there until continued December the defendant Pusch 14, 1947, that about and re- to California three children of the Witts drove Witt and they by way visited certain Arizona, of where Meza, turned arriving They Wahpeton, there the first returned relatives. part February they again January 7, left 1948, They brother at Ari- Meza, went defendant’s for the west. bought defendant, ranch. The the defendant a small where zona, there and known as children lived she was and the Mrs. Witt They signed in that name. checks continued Pusch and Mrs. they May together 1948 when were arrested until live so Wahpeton charged with the murder brought back to Pusch. Minnie knowledge to the of the State’s which had come
From facts County body Attorney determined Richland he. autopsy ought and an conducted to be exhumed Pusch Minnie Accordingly appli- he made her death. the cause of to ascertain coroner, County, where Dakota, of Davidson South to the cation September body Minnie Pusch had been buried body inquest May was exhumed and an held. 10, 1948, and on University post made Dr. A mortem was Sailri of physician, pathologist Moran, Dr. North Dakota, University pathologist The two of South Dakota. con- together. They post the brain and ducted the mortem examined According organs of death. other vital to ascertain cause testimony given trial their of this case found no *11 death, of disease or evidence cause of from such examination; they found no evidence of a brain tumor or of heart disease or any other They indication of cause of death. removed from body the the entire portions stomach with its contents and of organs body vital of the kidneys. such the brain, liver and placed jars These were in which were sealed. The stomach was by together taken Dr. Saiki parts organs. with other of vital organs put jars the same Parts of and sealed and taken by pathologist University Moran, Dr. the of of South Dakota. parts body Dr. took Saiki the of the which had been removed and placed in care and turned them his over Dr. Abbott, Professor Chemistry University of at the of North Dakota, and a well toxicologist. jars known chemical ing Dr. Moran took the contain- portions organs the of the vital which had been turned over Frary him and in turn University delivered them to Dr. of the of Dakota, South State Chemist of South Dakota. Both Dr. Saiki post-mortem and Dr. Moran testified in detail as to the examina- organs tion, as to the examination made the of vital body portions body they and of the of the removed and that were analyzed by Frary. later Dr. Abbott Dr. Both Dr. Saiki and nothing upon Dr. Moran testified that post-mor- found such indicating tem examination the cause of death of Minnie Pusch. Each them testified that based on what he observed at time they performed post mortem and the examination then made upon findings analyzed of the chemists, who later parts body of the which Dr. Saiki and Dr. Moran removed, as given testimony Frary upon of Dr. Abbott and Dr. presence, opinion trial and in their it was his that the death strychnine poisoning. from testimony resulted In his Dr. Moran computed strychnine summarized and the amount of that had basing been opinion found the chemists and his facts, such expressed opinion it as his strych- that Minnie Pusch died from poisoning nine and that this was cause death. Dr. Saiki basing opinion strychnine testified that on the amount of recovered findings presence the chemists and their as to the strychnine organs body the several autopsy findings strychnine poisoning Minnie Pusch died from strychnine sufficient to of a dose or doses of a result and as Dr. stated that cross-examination Saild her death. On cause comparatively strychnine time after death short causes within may may or it be it a matter hours less. it be taken, only he could draw from that the conclusion Dr. Abbott testified throughout strychnine body and the vari- the distribution strychnine organs body into the that the came vital was ous by absorption passed through through the stomach stomach, organs carried where the blood the blood to into they He from the distribution of found it. testified also .that organs strychnine was intro- various satisfied it through the stomach that at the time was introduced duced *12 circulating living patient in order to the was and blood the produce He testified that in his he found. further the condition opinion strychnine that he recovered had been absorbed the strychnine organs that the had been before death the vital and prac- at the stomach the same or and had come into administered single tically a dose in same time either as doses received the period He of time. further testified that there within a brief strychnine organs body the and Minnie in Pusch was sufficient person. Prary Dr. lethal for an adult tes- to constitute a dose analysis of examination and' chemical tified that from his organs body particularly and the vital Minnie Pusch he was enough strychnine body opinion in of the that there was her - organs death and that contained sufficient have caused person. strychnine the death of an adult cause July purchased Lydia 1947, on she a testified that Witt strychnine request at the of the defendant which bottle of she dispute The record without that delivered him. shows she strychnine purchase drug Breckenridge, did at a store at Minne- July signed kept by register that she sota, 1, 1947, and druggist purchasers strychnine. stated She that strychnine she turned the bottle of over to the defendant Pusch thirty-five paid paid he cents, and that her amount she signed her for it. testified that he her she own She asked if drug register made the name on where she store purchase, answered, “Yes” he “How dumb!” said, that she and if he he “wouldn’t purchased strychnine
and further stated shave days two wear before dirty or three and overalls” making January part testified that the first purchase. She her and that 1947 Pusch came to house one said when morning of the capsules wife went to the he had filled some hospital his containing prescribed vitamin which the doctor had preparation one of that she must have strychnine gotten and for his wife with taken hospital went to the and was in her when she those medicine weeks later he that two came testified some She further sick. a and bottle labeled put the afternoon to the house over the. razor blade two of so- table, took a strychnine on them on the pocket of his and laid capsules vitamin out called got to the bathroom and some tissue and that he went table, razor blade and table, took the shaved laid that on the paper squeeze end to end that he could the con- the vitamin so capsule knife that he with what- capsule out a filled tents labeled he then strychnine packed ever was the bottle to be round like the That said, “It’s rest.” capsule got them filled he shut- and capsules put pasted when this little them in paper put pocket; strip took out most of Wahpeton,. done in her home in all to get and told her filling capsule toothpick, the vitamin insides, then he toothpick pick said, she took a out *13 said, all taken and further “Now fill you be out” this got “It’s took the bottle filled that capsules, and that she and one,” and that one said, tamped full,” he have be “they got to two back him. That then “Are asked, you she handed she that this to her?” and he “Not give answered, unless going testified that in the fall he gets ornery.” she She further made that he her more came to home and took out of a pills, paper some a bottle labeled and it on table and that strychnine put sack he had a iron two and one-half or three little bar of about inches an inch which had a hole bored quite inches and thick long it the table, end. he laid some through put at one That this on a threw table table, water in and that on back the glass put iron he “white put down, cloth and that took out some stuff” then hole, that he in the that put that plaster paris called strychnine put contents; bottle labeled in he took the some of its pocket then took his knife and dribbled water out the. put g-lass in the on the stuff he hole. He said the hole was the pill, that after he thickness of had the water in there he it and that it hardened. stirred When had hardened a little groove put a in the bit he and let it harden center, a little more, pill hit that he then on the iron with knife a and the fell out and “You can’t tell the said, difference between these and the real put That ones.” when three four were made he in them his. pocket put things away. place the rest of the That this took early August morning in sometime 1947. That on the after Mrs. namely, morning September Pusch died, on the 26, 1947, he came to the house morning between 8 and 9 o’clock in the told her that night some of the relatives came last and that he newspaper handed something Mrs. a wrapped Witt in it “put the basement”; it in that said she took it and that he gave pills away” away. her and said, some “throw these and went garden pills That went in afterwards she out and took the got they with her and when she there them, she looked at groove ground them, she saw crack they laid them there and marked where were so she could find up put them and them covered with some dirt and some carrot greens top. jail That after she was incarcerated Wahpeton Attorney pills she told the State’s about the and that accompanied county later deputy she the sheriff of the and his to' place pills, they dug where she had buried and re- placed moved what had been deputy there. The sheriff and his they accompany testified that place did Mrs. Witt to the garden pointed they dug she out to them that and found some “white pills stuff” and also one of the described her. That Abbott, these were sent Professor the State Chemist. shortly Mrs. Witt further testified before went to- Arizona, her Meza, Pusch told he had killed wife.. tes- She destroyed everything tified that he further said that he had “the *14 “they morning” prove say next cannot and that I did you them”; tell that he unless further said that “no could one pills those before told me about prove I told because he it unless give going them.” he was testimony Witt, Mrs. contradicted Pusch
The defendant wife, killed his that he to her said that he ever and denied helped from vita- the contents remove him ever that Mrs. Witt capsules. strychnine The de- put capsules into such min Peavey for the that he worked also testified Pusch fendant begin years That to Company in all. about five Elevator salary per later increased which was month, a of $125 he received years he received per $175 that the last two month to $160 joint and his wife as per further testified month. He they sold Dakota; Mitchell, South a house owned tenants August delivered property executed and 5, 1947, and on this purchaser in all for that he received $8400 it to the for deed leaving expended a commission was the house hut $400 Savings bought for the Bonds Gr U. S. Series That he net. $8000 payable him made and to his were That such bonds $8000. jointly of the bonds he became and that under terms wife upon wife. Defendant Pusch the death the sole owner Savings Grand the H. Bonds Series that he cashed S. testified purchase proceeds in Ari- thereof in the ranch used the the evidence shows without The defendant testified and zona. dispute provisions of the will executed Minnie that under husband, defendant, her then was made sole benefici- Pusch ary. that Minnie Pusch The evidence further shows owned County, according Minnesota, Tail to the farm in Otter inventory pro- value The will admitted to had a $6500. upon petition defendant. The bate defendant was also beneficiary policy upon in a life insurance life $1000 Minnie Pusch. Lydia Pusch and Witt were arrested in the defendant After Wahpeton they brought May back to were incarcerated 1948 tria] county jail remained there until the this ac- preliminary that a examination The record shows tion. complaint July in which the defendant 1948, charged Lydia first with murder Witt Pusch and preliminary degree. According examination to the record of *15 Lydia present and both the defendant Pnsch Witt attorneys preliminary their at such examination but neither of day had them On that same the defendant Pusch one testified. City Wahpeton, physician practicing a Dr. Beithon, that he had been called to attend him. Dr. Beithon testified 8,1948, called the defendant that he, to attend Pusch on June July again pursuant him Beithon, called attend to call on to requested go up 1948. He that I to see Mrs. testified, “He Witt requested go because ill.” “He me see she been to and Mrs. up prayer me book, Witt and asked to take a which he me. showed day prayer year. It was for to each And asked me take up leaving just it to her I Dr. as was the cell.” Beithon testified message that he examined the book and found that contained a from the defendant to and that he Pusch Mrs. Witt delivered message the book to sheriff. He observed certain no- pencil reading, tations made with lead inside first cover, one July page “Read 10th.”- he turned to this he noticed the When page missing space page and that where the had been, Lydia a letter written to Pusch had been inserted. The Witt part letter found in the book read in follows: Darling: “Honey today, please You looked worried take it Kennedy begins calm, like said it to look better for all us try get you time. I him to told he said I think out, we you get can both out. mad he Forbes course was lost main Kennedy got say strike, wen to that old G-entleman that he could sáy somebody maybe not she died that, said shot here. “Kennedy your only preacher anybody said don’t talk to not to much to him. your going I am to tell him
“I Dr. Beithon about called something give you piles I them, him for please and then am to I want worry going him other. do not about the So re- to tell ways and all will be is still with us Elmer done a member G-od forgive much, we can him little harm but not to however he it would have been better. Now should never come there have honey going get you I I know how am this but those don’t they coming. Now chin darn 2 can well there time is sheriffs lie up you they anymore worry me not than told to talk don’t morning good say I wanted to more but had someone
watching you glad got all the I time was to talk to Elmer and helped you some to other woman. That kind a little. . . . Lydia please dumps Now it is never so bad but what it could be worst and remember Grod wants us trust him he had *16 ways ways and his are best. I ... am not worried and you don’t want coming to be. supper. The Doctor is after I going try up you. am to him have nighty take this to So night August”
As ever (The proceedings preliminary record of the had at the exam- Kennedy attorneys ination shows that was one of the for the de- participated preliminary fendant who examination and appears cross-examined called witnesses the State. It also from the record "Witt, that Elmer the son of Witt, Mrs. prelim- called the State and testified as a witness inary examination.) On cross-examination Pusch testified that placed he wrote the letter and init the book and turned the book containing the letter over Dr. to Beithon and asked him de- to liver it to Mrs. Witt. part
Another letter was also introduced in evidence as defendant’s cross-examination. The letter contains no date sought but it was written and to be delivered while jail. county both part incarcerated This letter read in as follows: Lydia:
“Dear yourself you “Please calm what trouble know that our attorneys trying get you are to us both out, and think I are as good out now. day night I
“You know also walk the floor and think of girls, nothing get two little but there is canwe do until we out. up honey. Darling you So chin . . are . Now with me or against please attorneys, you me tell our where stand. You guilty going plead guilty, know that we are not and I am not to go go standing up, you if I have I will down down, know I pills you any you never showed heard the man in the court say it have killed her within would an hour house and the í gave pills I took I her out the bottle from dresser and get go me. ... If we both saw out we both better Otto to Arizona get things Tom and Minnie and our sold that are still out get you if go I can’t then there, out, better with them and look you going it, after all of take Barbara with and Jeanne will"be you try you school, I want folks sell ranch while you may gone why are out there and be for sometime,, that’s I you. said take Barbara with - together sweetheart remember that we “Now can lick this please lawsuit alone we will be so lost, over, think it Ias would like know, .... honey just lawyer your plans let
“Now me our know what you get you? are. Did Minnie’s letter- she wrote your only
Lots love as ever
August *17 wipers say together, together,
“The windshield write a note please”.
The defendant on his cross-examination admitted that he wrote this letter and that he caused it be sent to Mrs. Witt that he but does not remember to whom he handed letter delivery Lydia for to Mrs. Witt. Witt that testified she received person the letter from a certain whom she named to whom the n delivery defendant had delivered the letter for her. among The defendant called as witnesses, others, Dr. McCart- ney, Pathology University of Associate Professor of the of Min- McCartney and Dr. Pierce nesota, Wadena, of Dr. Minnesota. request attorney that at of testified defendant’s he went to purpose Mitchell, South Dakota, 30, 1948, October for the performing, perform, post body and did mortem on the body Minnie He testified that he Pusch. removed from the cer- parts including portions organs tain of the vital which had been post when first left mortem was made. He testified that pituitary gland position, in was still normal its that he removed it approximately and found it was size, two-thirds of its normal that replaced by cyst. the anterior lobe was a thin walled He testified placed parts body jars that he of the which he removed sealing jar each wax and that was labeled closed with were which signed by the coroner and that and those labels contents its as to toxicologist jars Kozelka, Dr. of the Uni- then were sent McCartney versity that the Dr. testified further of Wisconsin. presence report from Dr. Kozelka disclosed received body parts strychnine he examined in the' cyst pituitary analyzed. that in the He further testified probably disease, had Simmons gland Pusch Minnie indicated long lingering opinion, illness accounted which, in his expressed opinion no to the cause He as had suffered. which she practicing physician he testified that is Pierce Dr. death. having 1914 and surgeon in Minnesota- in licensed been has practiced since that time where he having Minnesota few and that the last Clinic, the Wadena associated been X-ray devoting entirely to and sur- years time his has been he toxicologist. not a chemical gery He stated work. basing opinion of facts on the statement his He testified upon testimony question hypothetical of the defend- in a presence given the condition of Minnie as to in his Pusch ant report lingering during and further her illness Pusch McCartney cyst pituitary testimony to the of Dr. opinion suffering-from gland Minnie Pusch Sim- stage. an He further testified that advanced disease mons stage an can be fatal. at advanced disease Simmons assignment predicated upon the denial of error is The first change motion for a venue from Richland defendant’s grounds alleged County. 29-1501. The NDRC *18 county against prejudiced people were so the defend- of not of which he is accused that he could and the offense ant impossible impartial that it to obtain trial; was have a fair opinion county jury as to the not formed an in the that had a disqualify its guilt would or innocence of the defendant such as public jurors had been created as sentiment members by newspaper against articles and the defendant and aroused newspapers respect have crime, to the which with comments county throughout generally and had the entire been circulated every community in general resulted in discussion created by supported against prejudice The motion the defendant. appellant of affidavits two of his coun- of the the affidavit copy a the affidavit one counsel is of the Attached to sel. containing relating Chicago alleged Tribune an article to the publisher the affidavit of the There was submitted crime. also Wahpeton newspaper published in of the as to extent of paper throughout county the circulation of such showed in a wide circulation. There was also support^of submitted signed motion additional affidavits fourteen residents of the parts county. opposition of the In various to the motion there thirty signed by were filed the State citizens and affidavits county parts including in the residents various the sheriff county. regularly of the The motion came on to be heard in the County. pres- of Richland District Court Both defendants were present. with their ent counsel and the counsel for the State was persons The trial called court for oral four examination of the signed support who had affidavits of the motion for a change gave persons opportunity of venue each of these an fully express respect their general views state- respective ments made their affidavits. Counsel for the State questions any persons propounded no so examined propounded questions defendant for the a but counsel number of judge personally propounded-a questions and the trial number of bearing upon respective all the matters contained in the affidavits seeking general to ascertain the basis statements alleged prejudice people as affidavits to the of the coun- ty against the defendant or the crime of which lie is accused, and whether the accused could could not a have fair and im- partial county. persons trial in the One of so called awas police county, and a then former sheriff officer another person serving years who was then and for number mayor larger county served, one of the cities other than-Wahpeton. they expressed While the belief that there was prejudice against they the defendant stated that had heard of no threat or purpose to harm the defendant. Taken aas whole the affidavits do largely gen- differ from affidavits which are
882 applications erally of this nature. The counter submitted persons in the from different localities from were also affidavits period county the residence, their oc- of the who because engaged, cupation would have had or vocation people generally opportunity the in contact with come- an opposition opinion. public to the The filed in affidavits observe alleged prejudice against existence of the the denied the motion respective opinion expressed the belief of the defendant against per- prejudice was no there defendant affiants sonally give jury a could be obtained which would and that according a trial and decide the fair case evi- defendant otherwise. not dence naturally committed in- been that when crime has follows
It newspapers generally carry volving taking human life the may proceedings containing have been reference to accounts discovery investigation crime and that or in the naturally in the communities create discussion statements such person newspapers, read the fact that a has but such reached ordinarily alleged newspaper crime does of the accounts juror. disqualify person That been serve as a has such legislature specifically recognized this court. ND NW 29-1738; Gordon, 40, 62. State v. NDRC change had on of venue should be question a whether county prejudiced people so of the are ground that the of which he is convicted offense against or the defendant impartial it and that is im- trial fair and cannot, have a county jury that has not formed an possible obtain a guilt defendant as innocence of-the such opinion toas jurors a serious matter in disqualify is members its would very things presented. nature every In which is case judgment position judge a correct to form in better a trial grounds for such mo- or nonexistence existence as to the who have before them of this court than are members tion against only the motion. Conse- for or the affidavits 'submitted change quently is ad- of venue a rule that motion for it is judicial the trial discretion of dressed to and invokes the sound
883
Winchester,
756,
v.
19 ND
122
1111;
court. State
NW
State v.
59,
32 ND
155 NW Ann
31,
Cas
Gordon,
442;
1918A,
State v.
ND 708,
606;
240
61
NW
State v.
Bossart,
Bossart; State v.
Ellingson,
Gugel,
11,
ND
241
62
v.
78;
NW State
“I pre- have all read accounts as papers, especially this sented motion. It is true that the quite paper here, local carried a little of the record as made- preliminary its State matters this case. However, it is quite.significant papers that the made no statement whatsoever any as to papers conclusions in the case. There is no statement in the any way public
that would tend in to excite the or to try public against any to influencethe the defendants or one else. no There is editorial comment whatsoever and no other state- paper expression they in the ment in of what termed —even they "present they facts, were the presented merely didn’t them as facts, them presen- as the record made the State in these They tations. made no comment whatsoever of'whether anything I the actual or not. can’t facts case find papers public. tend to inflame would the mind's of the presented And I not believe the record do here shows that public county has been inflamed in this or the minds people have been at all inflamed. It that in is true a case of this very kind, where nature of the case the circumstances surrounding public arouses certain interest, is bound contemplates have more or I less discussion. But think the law an such that defendant can’t atmosphere there must be trial in order to remove case to impartial have a fair I don’t find here. county. any expressed such sentiment another attempts, or even state- of any no evidence “There been has I find that kind. don’t any reference to violence ments, with any violent statements evidence any produced there has been state- unfair or even discourteous defendants, any against I don’t believe that the defendants. with reference to ments *21 to intimidate tendency that it have any such would the is feeling and do this case their try that was jury or coerce a sworn of the court. to the and the instructions evidence duty according county in this have a that the can I believe defendants honestly trial.” fair and impartial the neither
The shows that the selection of the jury record nor defendant exhausted the al- peremptory challenges the State them law. The defendant seven chal- by peremptory lowed had had not The record not show which been exercised. does lenges that that was made to selected on any objection any juror bias. are that on the ground prejudice agreed the his We here presented record no error was committed in the denial of for a change the motion of venue. the of the ruling court assigned upon rejecting
Error also is of a by the defendant to show result lie evidence offered to the defendant at applied to have been test said detector City at Evi- Wahpeton. room a hotel in a request of North introduced to show State Dakota dence was a known as polygraph, commonly and owns purchased has of crime investigation by Attorney for use in detector, lie The called an Attorney defendant Assistant office. General’s he had taken instruction in opera- testified that who General detector under or lie one Leonard tion Keeler polygraph of the machine, inventor of the thereafter he to be the said sixty on less approximately machine occasions than used designated He as a produced paper years. graph two in the course of the applied taken test to the defend- said was ant. Defendant’s counsel stated:
“We offer to show that the that the where the graph, numbers
885 questions perfectly were asked reactions, show normal and that nothing graph any way any there about this that in is discloses lying part falsification, or untruthfulness on the of the defendant. “We offer to him that also show in his connection with 'his.knowledge subject, general recogni- of the there is a scientific upon, tion tests, of such and also this machine is called operator upon frequently by prosecut- this called the various ing authorities of the State of North Dakota to run tests where suspected.” criminals are admissibility question of lie detector
The
tests has
only reported
and the
case that
arisen in a number of cases
has
attention in which is held
been called to our
evidence
People Kenny,
v.
should be admitted was
Misc
The
in that
decision
case was rendered
a trial
NYS2d 348.
judge
opinion
judge.
People
and is
of one
decision in
Kenny
“historically
v.
been
has
criticized and
to be
unten
said
factually
legally
able,
incorrect, and
reversible”
writer
an elaborate article
“The Lie Detector
Courts” in
reported
16 NY
Law
In
Quart
TJniv
Rev 202.
cases
*22
rejected
last
courts of
resort the
have
the
courts
of a
evidence
reliability
ground
lie detector test on the
the
that
of the
has
tests
yet
sufficiently
People
been
Becker,
established.
v.
300 Mich
2
page
562,
139
503,
NW2d
ALR 1171
1174;
and note on
Boeche
v. State, 151 Neb
593;
37
20 Am
Evidence,
NW2d
Jur
Sec
368,
p
762, 633; State v.
Bohner,
314, ALR
651,
Wis
or innocence excluding this evidence. reject- ruling in assigned the court of also is
.Error show the re- defendant to of the ing behalf offered on evidence defendant. defend- hypnotic examination of a sult Burgess Burgess Dr. testified a witness. Dr. ant called one colleges; degrees from certain and obtained attended that he had degree graduated awarded the of had been that he had also University later the of Illinois and from the Master of Science University Philosophy Iowa; of degree Doctor of psychology; specialized university in field of he studies in his there Minnesota, and has resided Moorhead, that he resides at twenty-two years; he has consulted that in his work for some doctors and dentists of medical with a number advised defendant of- in North Dakota. The both in Minnesota years Burgess prove a he for number has Dr. fered to place hypnotism thoroughly and is able to with familiar been profession practiced hypnotic person state; he a has a years perfected respect that he number has for a in this giving extent that he is now instructions doctors it to such an regard and in reference to the matter of thereto and dentists operations performed purpose having for the anaesthesia with treatment certain dis- thereunder, also connection body per- place mind; that he able a is turbances of person hypnotic at which time the loses all con- trance, son entirely by governed is mind and sub- the conscious trol of hypnotic party is in when such such mind; conscious per- being in the subconscious mind, dealt trance and standpoint things being from the done no control son has entirely with the and must deal subcon- mind of the conscious day placed 26th of November that on the mind; scious *23 hypnotic Wahpeton in a room at the trance the defendant long kept period time; for a of trance him such Hotel subjected thoroughly to in- the defendant was that at the time phases quiry the matter involved in this action for the on all of telling purpose ascertaining fact, inwas, of whether he the truth guilty charge information; in the that or whether he was Burgess, with having- tests, connection these Dr. himself, in placed hypnotic of'ques- the him in trance him asked a number regard presence Burgess thereto and that in tions the of Dr. questions; of two defendant’s counsel asked him a number of placed taken out the that he was of trance and later back in they attorneys trance on three occasions; the that invited the any to come to the for State hotel and ask defendant they questions any wanted they to or make examination that regard any wanted to of him in matters, invitation accept; they for the did not counsel State that offered to show in the of examination course the defendant of while in- hypnotic questions propounded trance “that all had to do with purpose testing- every case, or this matters of him; that phase pertaining of this case was guilt covered; all of the matters inquired complete questions to his were into; that full and propounded every phase were himto of matter of the ad- poison, ministration of whether killed wife, his whether he anything to by do with the crime; and we would show the examination this witness all answers his They effect that he was innocent.” also offered to show that during questions and answers course the examination by identify wire recorder and that were recorded would recordings They them in and offer evidence. such further of- study long- Burgess virtue of the fered to show that Dr. -learning training, by made, virtue of his “has virtue of study scientific use the method made that in the hypnotic in a case of an individual state the truthfulness of the ascertained; can be that the individual Doctor is familiar running the effect of the- of these tests and that from his knowl- subject edge testify able this as to truthfulness given by hypnotic answers defendant If the state. please, through would, we Court this matter and this of- offer, prove fer to that all of the run this- tests defendant at the clearly time manner aforesaid, disclosed that the de- way guilty fendant was in no of this and that his answers crime, respects negatived any clearly in all the commission of crime and objections showed he was innocent.” The court sustained *24 rejected testimony. proof No case has been cited offer of admissibility party relating by to of evidence either proffered no has been found. We think that the evi- case clearly inadmissible and error was was that no committed dence objection. sustaining the in admitting ruling assigned of the court in certain on the
Error is experiment relating Dr. with made Abbott .to an evidence plaster Lydia strychnine. paris been shown Witt As has of presence strychnine mixed her in the defendant testified that pills paris what resembled plaster formed and water and of with which defendant’s wife had' to those similar or tablets somewhat taking. that he made such denied was been or pills defendant gave any Dr. Pierce exam- wife. was that he to his When or defendant, he asked on direct exam- for the was witness ined as a opinion he to whether if had an defendant’s counsel ination permitted plaster paris pill which of Avas to or a made not having strychnine it as described would or would harden answered, in the Dr. Pierce “I doubt if not stomach. be soluble “Why asked, that, it He then is Doctor?” would dissolve.” acidity he as follows: “Because the there To which answered disintegration percentage to sufficient cause calcium paris. experience plaster passes In from we find that it fact, alimentary foreign body, may through a or it be tract as partial foreign body, causing caught there as obstruction.” Dr. later called the State' and Abbott was as witness any experiments plaster whether he made with asked strychnine paris and or not to discover whether taken strychnine might or manner described the be extracted dissolved lie in the stomach intestines.- this affirmative answered and was then asked what did. Dr. Abbott answered: strychnine plaster of Paris and added a mixture “I made lumps paste, it enough and divided into make a let water lumps them, I tested; one of were then es- These set. equivalent half a dozen tablets about the size timated be placed sleeping pill ordinary in a tube size, tablet test slightly by considerably more water and acidified distilled test allowed stomach; one this was than the acid of the period, time tliree-bonr which is about the remain for a *25 expected ordinarily to remain the stomach; would be food carefully examined then this solution-was to see whether strychnine.” respond tests for would it then “what the and he He was asked results?” answered follows: as strychnine from the solution less than,
“I to extract was able dose, average than the a little more a lethal less than much lump quantity in the was three or four the dose, while medicinal repeated mixing I grains, certain amount. after estimate, I —a always strychnine I experiments; but dissolved, some the lumps more than this small fraction from these not able to obtain experiment strychnine run- that I knew was there. One the ning three.” hours instead of for six the which he found then asked whether amount
The doctor was produce convulsions. The court and did' extract was sufficient question objection by to this an defendant’s counsel so sustained it was answered. experiments
Subject evidence of' made to certain limitations resting in the admissible, are the matter discretion out court p 645, trial 985. evidence of the court. CJS Sec enlighten experiment should be such as result of assist experiment jury rather than to and the should be confuse made been made under conditions and circum- or shown to have substantially prevailing to those at time of the stances similar necessary not, however, “It is order the occurrence involved. experiments permissible experi- admit or to evidence render that the conditions be identical with made out of court ments existing if occurrence; the time of the is sufficient there those at similarity.” p 20 Am Sec 628. Jur, Evidence, is a substantial experiment under was conducted conditions In this case experiment than if the favorable to the defendants were more pre- precisely under the same conditions conducted had been (cid:127) vailing far involved, so as that at the time occurrence lump larger Dr. Abbott made a several times be done. could pill concerning Dr. Pierce had testified. There than strychnine, very quantity lump un- was in this substantial doubtedly, have could been tablet more than there much lump placed pill; in a solution was consider- acidity produced ably in the stomach.- acidified than more strychnine extracted Notwithstanding that the he testified this approximately lump period leaving for a in'the solution pill remained in the stomach was would have same average little than lethal more dose much less than of this testi- no error the admission dose. We find medicinal mony. again at the close all case and
At the the State’s close moved a dismissal of counsel the evidence defendant’s accomplice ground Lydia an and that on the Witt was action *26 tending to the other evidence connect there was not sufficient the the to warrant the with commission of offense defendant relating jury. of The to cor- the case to the statute submission by testimony accomplice de- of the of an invoked the roboration reads as follows: fendant testimony upon of an
“A cannot be had the accom- conviction plice by as unless he corroborated such other evidence tends is offense, defendant with the commission of the to connect the merely and the is not sufficient if it corroboration shows offense, thereof.” NDRC commission of or circumstances 29-2114. 1943, by required accomplice the statute of an
The corroboration commission of the defendant tend to connect must every require of the corroboration material crime. It does not accomplice by corroborating evi or to fact testified support guilty. standing of to verdict alone be sufficient dence 481. The 458, ND 248 NW corroboration Marcovitz, 63 v. State may as as well direct evidence. circumstances be facts and necessary 25. “It not even 479, ND is Todd, 62 244 NW State v. prima require The facie case.” evidence establish such there to warrant a conviction that in order the statute is ment of testimony provided other than be evidence must accomplice the defendant with to connect which “tends 287 Foster, 428, v. 69 ND State of the offense.” commission accomplice material corroborated some is If “an NW 517.
891 jury may speaks fact facts the from or that infer he the truth as Reilly, all.” 22 ND State v. 353, 133 914; NW State v. Smith, ND 199 130, NW 187. The corroboration need not be conclu- It is sufficientif the sive. evidence of itself tends to connect the with the charged. defendant commission of the offense point “The single state is called to some or isolated proven fact itself, which in unrelated to other- will facts, be suf- ficient It corroboration. weight combined and cumulative by nonaccomplice of the evidence furnished sup- witnesses which n plies the test.” Wharton’s Criminal 11th Evidence, ed, Sec pp 754, 1271-1272. sufficiency corroborating depends upon
“The evidence particular weight of each The the'corroborating facts case. testimony question testimony and the as to whether not the accomplice is so corroborated toas establish the connec- charged questions tion of accused with the crime are for the jury to determine.” 2 Wharton’s Criminal Evidence, 11th ed, p Sec 1272. ample testimony
In this case there is corroboration of the accomplice. undisputed testimony including the mony the testi- evening
of the defendant himself shows that on the September evening 25, 1947, he came home in the about six testimony a little o’clock or later. The Witt is the effect that the defendant him called about seven o’clock and that he *27 shortly then went to defendant’s house and after he reached giving there he observed the defendant medicine to his wife ac- companied by pills, lay the direction to take the down-and relax go sleep following gave pills to and that this he her the pills some water and that one one of the was so-called himself, capsules. pills vitamin or The defendant testified that among gave medicine, evening the her was one of the n pills capsules. so-called vitamin or The defendant remained in the with the house others until wife his died sometime after one present clearly He o’clock. was opportunity had the to give poison her the the give evidence shows- that he did including her certain medicine pills one of the so-called vitamin capsules. The evidence shows that aside from the medicine given by nothing by to the given was defendant deceased the hypos given anyone except the doctor. It clear seems the strychnine post disclosed the evidence from evening. by Minnie Pusch that The evi- received was mortem dispute relationship the illicit that had without shows dence the defendant and Mrs. and which con- Witt between existed agreed of Pusch. are after the death Mrs. We to exist tinued testimony ample corroborating the the ac- evidence of there is complice tending the defendant to connect commission charged The and of which he convicted. the offense stands gave that the trial court full and careful instruc- record discloses question corroborating evidence. These instruc- on tions complete fair statement of the and no ex- tions ception law were any part taken to thereof. was during the An incident cross-examination of occurred gave rulings assigned certain are rise to which defendant for the if as error. defendant was asked counsel State county jail he had a conversation with one of his counsel in the day. certain He further if in that on a asked conversation say attorney confess, the defendant did not “If I will I my money Objection question get to the some of back?” later after the overruled and evidence whole case had been closed both State and defendant had rested defendant’s ground moved for a mistrial on the that it was mis- counsel part attempt bring conduct on the State’s counsel to before jury alleged conversation between the defendant and his attorney. The for mistrial was denied and error is as- motion upon question signed rulings permitting court in denying be asked and in the motion for In mistrial. view transpired questions present of what and the themselves we deem best set forth the entire record which the rulings challenged predicated. are the cross-examination On following proceedings defendant were had: you the 16th and 17th of 1948? November,
“Q Where I don’t know. November, A 16th and 17th Q What? *28 I recall.
A don’t you recall where Q You don’t were on the 16th or 17th No- ? vember, 1948 jail
Oh,A here. county jail In the ? Q Yes. A you deputy Mr. Q Do know Elmer Jensen, sheriff? A Yes. you day up your lawyer,
Q Didn’t him ask call Mr. ohnson ? J
A I have asked him times; several I don’t remember what dates was.
YouQ did ask him several times? A Yes. you coming up you
DoQ' remember Mr. Johnson on see day? day.
IA don’t remember that it onwas say Q You wouldn’t that he didn’t?
A No. day
Q You had a conversation him ? on that A Yes. you say Q not in him Did that conversation I now, this— you carefully: get want to listen to it ‘If I I confess will some
n my money ?’ back object MR. DELL: Just moment. Your I Honor, to that incompetent, improper, irrelevant and immaterial, procédure. it is unethical. I like that kind of And don’t object charging MR. MURPHY: I to counsel me with un- ethical— right I
MR. DELL: claim it I is, and make statement here misunderstanding. now there will so be no deny say prepared prove I it, MR. MURPHY: I we are asking :by competent testimony. what we are this witness necessary DELL:' That MR. makes it for.Mr. Johnson to the stand if want— take (Interrupting) anyway.
MR. MURPHY It Mr. won’t, Johnson, bring MR. DELL: We would like to some conversa- tions the other side of the table— *29 ahead. Go
ME. MURPHY: telling you— I am DELL: MR. order.) raps (The Court objection yon I I think will until THE sustain COURT: lay Murphy. Mr. foundation, better a little try I
MR. will do that. Well, MURPHY: you up alone ? Mr. came to see at times Q Johnson A Yes. right, you now, All 16th 17th of November were in the
Q county jail ?
A Yes. your up you jail he came cell in that ?
Q And see A Yes. you time ? had a him at that
Q And conversation with A Yes. you in that
Q And conversation did not make I statement already him? made, with have please again, ? statement,
A What my money get will ‘If I confess I some of back?’ Q ? A else was the conversation was connected— What What question. ques- I Q-You answer am not here to answer asking you. tions. I.am improper, objectionable, highly I This would
MR. DELL: is jail doing they down there in that when a what were to know like lawyer conferring up client. there to sustain the I rather inclined ob- Well, THE am COURT: jection perhaps it a confidential statement to his in that was lawyer. please, your it was if Honor not con- Well,
MR. MURPHY: may person who have overheard it. to some third fidential as lawyer testify it, clear, .couldn’t would course, Of person a third concerned, as far he is but who be confidential testify it; there it could is no confidential relation- overheard ship there. lay the Well, better, then,,
THE foundation a little COURT: parties as to the situation so forth. I have shown Well,
ME. MUEPHY: both in his county jail. Of he didn’t know where course, cell this other person I ask witness; was. can’t person know. this doesn’t He didn’t was there. I have' even know shown the situation ex- actly been to me. as has described ' objection. I will THE overrule the COHET: *30 question, you, you You can answer
Q can’t whether said say ? that or didn’t it guilty.
A I have never said I was question. question you Q That isn’t The last ifwas made- precise get my money Tf I statement, I confess will some of back?’ Objected again. May standing
ME. HELL: we have a ob- your jection Honor? to this, you may.
TPIE Yes, COHET: question you you?’ ME. HELL: The is, ‘Hid or didn’t mentioned., just trying A I am to think whether that was (By Murphy) you Q Mr. Well —- (Interrupting)
A If I knew more of the conversation, it would probably cometo me. you might you
Q think You have said do ? it, deny say, A I wouldn’t it I ‘Yes’; and wouldn’t I recall it. don’t deny making Q You won’t ? statement deny say, A I won’t it I ‘Yes,’ and won’t because I don’t know. you having any you Q Ho recall conversation which used get my money like that: I words Tf confess will I back?’ why A That is the reason I would like to know more about the If I conversation. made a statement like that it be in would con- doing Lydia get it for nection Witt her out to the chil- dren. you why you
Q If made that statement, that is made it? A Yes. you?
Q You did make some similar statement, didn’t A What was that ?
:896 just you didn’t-you make I asked statement like The one
Q — ? (cid:127).that my knowledge.
A Not That is all.” MR. MURPHY: Following the defendant this cross-examination was interro- gated counsel as his own follows: gone Dell) long have (By into that Now, as Mr. “Q you I if Mr. will ask Pusch, out this. find about let’s matter, you talked Mr. Johnson occasions true on several isn’t you of evidence here and tried to find out there was a lot and told you guilty? were whether
A Yes. you pleading guilty though you even And talked to about
Q n claimed guilty, right you ? is that
A Yes. you got I I into the case talked to about the mat- And after
Q you you if I told there was a lot of evidence and I ask ter, will *31 you might suggested possibility I be convicted and here and n guilty making arrangement pleading some State?
A Yes. you you guilty ?
Q And insisted were not A Yes. finally you you ?
Q test, And submitted to a lie-detector didn’t A Yes. Objected incompetent improper
MR. MURPHY: to as ruling. in view Court’s objection I
THE COURT: sustain the it out, and strike caution the I will counsel that I have ruled matter. your MR. DELL: Yes, Honor. you, I will
Q Now, ask Mr. Pusch, whether not Mr. Johnson you trying told ón Mr. several occasions that to make Forbes n adeal with him to get you guilty plead something so as to get way. you this matter out of the Did have to Mr. some talks about that? Johnson
A Not that I know of. that t What ME. MUEPHY: of.’ that I know ‘Not EEPOETEE: THE you there talk to down Mr. Johnson you. Did talk to Q —did . concerning Mr. jail had with Forbes? talks he some recall that. A I don’t recall that? don’t
Q You A No.
ME. DELL: That is all. That is all.”
ME. MUEPHY: transpired upon the cross- That the entire of what is record followed- the re-direct examination examination and transcript case had after the of the trial further shows jury jury and. returned into court to the been submitted following proceedings had: were day, p.m. “(Thereafter, the same and at 4:20 o’clock custody jury of the- the court room in were returned into had:) proceedings following and the bailiffs, Attorneys (Present: Forbes; Pusch; Defendant Johnson Peschel.) Clerk presence the de- Let
THE show COUET: record Attorney. counsel fendant and his State’s you Jury, I understand THE COUET: Members of the question you have some —(cid:127) testimony day your In the correct, Honor. A That JUEOE: Thursday, yesterday, evidence in- there was be before that would accepted or stricken troduced we don’t know whether was deputy regarding overheard that was out, conversation jail. that stricken out Was believe, Mr. I at sheriff, Jensen, *32 regarding conversation such, it the as or was carried on record ? he overheard way perhaps the- the best I think Well,
THE COUET: portion reporter read that the have that is to answer to Court jury. the to of the record Yes.
THE JUEOE: por- reporter read that to I the And will ask THE COUET: carefully.” jury jury. to-listen The thé to the record tion 898 jury reporter
Thereupon to -the entire record read the including the cross-examination has been set above which forth by questions his him that asked the defendant and n owncounsel' immediately following' the and his answers thereto- reading by the re- At of the the conclusion cross-examination. juror inquiry porter which resulted made who by being reporter an- “I think that will read stated: record question.” jury The then retired for further delibera- swer our tion. priv- attorney client and his are an between
Communications testimony ileged privilege of the client extends to compelled testify what he communicated to be to cannot attorney to communicated as what was his in confidence or p attorney. him An does 70 403. accused 544, CJ his Sec becoming protection that a waive the rule a witness n communication privileged. attorney 3 him is Wharton’s p objection rather 11th 2099. ed, Evidence, Criminal ground general not based terms and was question privileged However, communication. a called for n didcall for privileged between defendant a communication attorney objectionable ground we and-his objection general notwithstanding think character, the its n should have been sustained. ruling relating every to the admission or
It erroneous is not question -propounded rejection a that has been of evidence or to requires justifies party appellate or to a witness'or n courtin n conviction. setting reversing judgment of the verdict a aside assignment examining of error which
In an shows n thaterror was committed in question questions permitting or placed upon appellate be there court of witness asked duty determining or the further whether the error defects or n exceptions rights did did not affect the substantial' Stepp, 569, parties. 566, ND 29-2826; NDRC State v. 48 1943, ND 554, 185 v. 58 226 NW 812, 813; O’Connor, 563, NW State v. 601; State v. 69 ND 286 NW Colohan, 316, 324, 888; State It ND 209. been Gibson, 103-104, has said NW
899 problems of the this appellate one most difficult is. which confronts an reviewing judgment court in a of conviction in a crim jury. People inal case that has been tried a before v. Purtell, permitting question NY NE 273, 153 243 72. Whether error in a depends among things upon such to be asked has effect other question.and to the the answer “narrowness issue” to proposed question People supra. which the Except relates. v. Purtell, improper in extreme cases cross-examination is not or dinarily ground a for reversal where witness answered in the negative. Commonwealth Barronian, v. 235 364, 126 NE Mass People Thompson, App2d 833; v. 69 80, Cal 158 Pac2d 313; People v. Cal, 64; 257 Pac Adams v. Seiber, State, 31 Ala, S2d People App2d 99; v. Walker, 88 Cal 265, 198 534; Pac2d Ken nedy State, Okla., v. 792; Pac2d State v. Lemke, Minn., 290 v. 307; NW State Miller, 177 Wash Pac2d 535. In question this case the defendant did not answer in the af sought firmative but at the outset further information with re spect to the conversation hut his final answer when if asked did make my some similar knowledge.” statement was “not to although That ended the cross-examination and the defendant by afterwards was examined his own counsel on what is denom questions inated a redirect pounded pro examination no further by to him counsel for the State. the.questions propounded
It will be noted that to the defend- relate, ant concerning his counsel did not to the statement attorney inquired. questions pro- had State The pounded to the defendant his own counsel related to different held at different conversations times and covered much-wider question range propounded by attorney than did for the response questions propounded State. defendant in to the to him his own attorneys counsel testified that one of his own on several occasions had told him there was a lot of evidence and had tried to find out whether guilty the defendant was and had guilty pleading him talked to about and that his other .counsel along other occasions talked to him similar lines, had told him there might lot of evidence that he here, be convicted suggested possibility even pleading to the defendant the *34 making arrangement
guilty and with the some State and that notwithstanding all this the defendant insisted to his counsel guilty.- that he was not These declarations innocence on the part the in defendant thus introduced evidence as a recital of confidential the communications between defendant and his only testimony counsel had behind not the the them force of they the defendant that were made at the time and under the implied circumstances stated but also the corroboration of his propounded question who -the that the defendant counsel had of innocence at the times and in made such' declarations questions. presented The circumstances described in the issue by objectionable question on cross-examination was narrow. only question one no It related to the which affirmative answer which, by given given was and to the last the defendant answer negative. by The defendant’s examination his own brought counsel was not restricted to had been what out on cross- inquiry examination but the based the cross-examination jury was utilized as means to reveal to the confidential com- munications between defendant own and his counsel and the by innocence declaration of made the defendant course of very things In such communications. nature of these dec- larations of innocence which the defendant testified re- sponse questions his own counsel must have been beneficial to the defendant and have tended to obviate and minimize or de- any stroy question adverse effect created which had been him on asked cross-examination. inquiry jury made that the indicates
It contended is importance jury much to the evidence adduced attached that jury This does.not The follow. did the cross-examination.- inquire the evidence- had been on the as to adduced not juror inquiry made the stated with The who cross-examination. it ac- respect don’t know whether was evidence, “We to this cepted later that stricken out or or stricken out” “Was information That was the as such?” on the record it carried members, only jury sought. natural It is any in- jurors be discharge case would their duties any been knowing that had evidence offered whether terested in carried in the record, stricken or was not been or had part jnrors concerning this on the was donbt there when only natural would course, of them it was, or some fact was as to whether ascertain what the information and seek had not In this case' was had or been stricken. the evidence jurors might strange in doubt as to the have been ' particular first evidence. trial court sustained of this status objec- objection question and later another sustained an wholly juror jurors so it understandable that some tion testimony might have had whether the some doubt had or had not been stricken. Reference has been made to fact 'that *35 attorney attempt by the for the State no to establish evi- made person alleged that some third overheard the dence statement attorney. Leaving question defendant to his on one side all as admissibility testimony apparent to the it such is that the fact produce testify that the State failed to to witness that he over- alleged attorney heard statement the defendant to his was favorable defendant and tended to show that such testi- ’ mony produced. could not be
“A will reversed because of the conviction not be admission improper prejudiced evidence unless the accused was thereby appears harmed or unless it that there awas miscar- riage justice.” 944. the record and CJS When the evi- appear dence in this case are considered it does not that there miscarriage justice was a and it is difficult see how the jury any could have returned other verdict than that which transpired everything upon did return. When the cross- including examination of -the defendant the examination de- attorneys pro- fendant’s considered think is we do not that the pounding question of the on cross-examination and the over- ruling objection of the thereto could have influenced verdict. assigned upon the denial of defendant’s motion
Error is also
In this state a-trial court is without
for a-directed verdict.
authority
Dim
direct a verdict in a criminal action. State v.
under the evidence
mick,
Furthermore,
70 ND
It follows appealed It so ordered. is from must be affirmed. concur. G-rimson, JJ., J., Ch. Morris
Nuessle, per- agree (dissenting) error I cannot J. Burke, attorney defendant con- mitting prosecuting to examine attorney purportedly was cerning to his made he a statement you question “Did not in that prejudicial. was, asked you- say to it to-listen I want to-him this—now conversation carefully: money my get back?’” I will I some Tf confess trial, objec- judge sustain that he would an indicated When question thought the disclosure it called for he because tion to attorney client, between confidential communication of a attorney to some prosecuting “It not confidential was stated, lawyer may person course the it. Of third have overheard who testify far would be confidential as it, clear, couldn’t person it could overheard a third who concerned, as he is but defendant) testify (the didn’t know to it .... Of course person witness; he doesn’t I can’t ask this where this other was. person there.” He didn’t know the When know. even repetitions objection several overruled, defendant, question equivocal “I have never such answers, as, made *36 say guilty”, I ‘Yes’ deny I “I it wouldn’t said was wouldn’t in with “If I máde like that it would be connection a statement for'Lydia get doing children;” the and “Not it to her out to Witt my attorney .knowledge.” prosecuting thereafter made The positive attempt by any that assertion no to establish evidence his person make the state- some third overheard the defendant had ment. given equivocal justifiably, jury from the answers
The could that he had made have reached the conclusion defendant, the unjustifiably They might alleged. have reached as the statement prosecut- the of the from unsworn statement the conclusion same attorney. Having ing the conclusion that the statement reached might they have drawn an inference of a con- made, had been part guilt the the defendant from his use -of sciousness transpired later the I Prom what “If confess.” the words jurors, least, at did reach that some I am satisfied trial that inference. and draw conclusión that -jury and had been submitted to the case been After the they returned into four or five hours them for considered testimony. question concerning inquired was, this court testimony day yesterday, be Thurs- before that would “In the day, evidence we don’t lmow whether there introduced and was accepted regarding the that out, stricken conversation deputy the Mr'. I at Jensen, believe, sheriff, was overheard jail. that stricken out or it carried on the the Was record Thereupon regarding the conversation he the such overheard?” jury. of the incident was read record holding majority agree of-the court I cannot jury weight given to the fact returned into little is to be question considering case for four or court to ask this after majority that it does not follow five hours. The considers from jury inquiry they the fact that the made attached much They importance the incident. are correct in the no doubt inexorably conclusion not that this does follow to the ex- sense possible hypotheses. all other clusion of proper my to the im- however, the conclusion as In view, jury portance to the incident lies the answer to attached question, inference to is the most reasonable be “What drawn ques- they did?” To me the answer to that from what said only inference which I consider, clear. The most tion is only jury reasonable-one, is that some but reasonable, attorney, -that the defendant had said to his “If I con- believed my money get they I some of back?” and that consid- fess, will guilt. was some evidence of It ered that statement is not jurors interrupt their reasonable assume would delibera- inquire they if did not believe evidence, tions to or which bearing considered had no on the stricken case, was from the record. I am satisfied that the examination defend- erroneously concerning matter, ant this allowed, contributed guilty trial, result a verdict of to the of murder *37 degree. prejudicial. It was therefore first