State v. Pusch, Cr. N

• Decision Date: 03 November 1956
• Docket Number: Cr. N
• Citation: 79 N.W.2d 295
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. August L. PUSCH, Defendant and Appellant. o. 269.
• Court: North Dakota Supreme Court

Page 295

79 N.W.2d 295

STATE of North Dakota, Plaintiff and Respondent, v. August L. PUSCH, Defendant and Appellant.

Cr. No. 269.

Supreme Court of North Dakota.

Nov. 3, 1956.

Syllabus by the Court

1. When a motion for a new trial is based upon an affidavit of a witness which is a complete repudiation of corroborated testimony given upon the trial of the case, such recanting affidavit should be scrutinized with extreme care.

2. Motion for new trial upon the basis of newly discovered evidence is addressed to the judicial discretion of the trial court, and the trial court's decision upon such motion will not be reversed except for an abuse of discretion.

3. Trial court's decision denying a motion for a new trial in this case was clearly not an abuse of judicial discretion.

William S. Murray, Bismarck, for appellant.

Leslie R. Burgum, Atty. Gen., and Patrick T. Milloy, State's Atty., Wahpeton, for respondent.

C. L. FOSTER, District Judge.

The defendant, August L. Pusch, was convicted of the crime of murder in the first degree in the District Court, Richland County, North Dakota, the conviction being for the murder of his wife, one Minnie L. Pusch. The conviction was affirmed on appeal by the Supreme Court of North Dakota on December 30, 1950, and rehearing was denied on March 14, 1951. 77 N.D. 860, 46 N.W.2d 508.

On March 23, 1955, the defendant gave notice of motion for a new trial returnable before the Honorable Wm. H. Hutchinson, Judge of the District Court on April 15, 1955.

The motion was based on the affidavit of William S. Murray, attorney for the defendant Pusch, and on the affidavit of Lydia Witt, a witness at the trial of the action.

Lydia Witt was an accomplice in the murder with the defendant, Pusch. The trial court heard the motion and denied the motion for new trial and from such denial the defendant has appealed.

The affidavit of Lydia Witt purports to recant certain testimony given by her at the trial of Pusch stating that she testified falsely, that she was under pressure from prosecuting officers and her husband, that she was ill and was denied medical attention, that she had no choice in the selection of counsel but that the state's attorney forced upon her a certain counsel undesired by her, and that she was not permitted to have visitors but was kept in a dark cell, all of which affected her mental processes to such an extent that she did not tell the truth at the trial of the action and that she was virtually incompetent due to her condition and the pressure that had been put upon her.

Lydia Witt further states in her affidavit for a new trial of the defendant, Pusch, that the testimony given by her at the trial of August Pusch was false and that both her son, Elmer, and her husband, Otto Witt, testified falsely at such trial, in fact, so she now claims practically all of the testimony at the Pusch trial, including her own, was false.

Based on affidavits filed with the trial court at the time of the hearing and the court's own knowledge of the circumstances of the trial, the Honorable W. H. Hutchinson, upon the hearing on such motion, reached the conclusion that the present affidavit of Lydia Witt did not conform to the true facts and with that conclusion of the trial court, this court is in complete agreement.

The trial court also found that the affidavit of Lydia Witt was not a complete repudiation of her testimony and that her testimony at the trial of Pusch was fully corroborated...