State v. Pusch, 222

• Citation: 77 N.D. 860,46 N.W.2d 508
• Decision Date: 30 December 1950
• Docket Number: No. 222,222
• Parties: STATE v. PUSCH.
• Court: United States State Supreme Court of North Dakota

Page 508

46 N.W.2d 508

77 N.D. 860

STATE v. PUSCH.

No. 222.

Supreme Court of North Dakota.

Dec. 30, 1950.

Rehearing Denied March 14, 1951.

Syllabus by the Court.

1. A motion for a change of venue is addressed to the discretion of the trial court and its order will be disturbed only in the event such discretion has been abused. The record in this case discloses that the trial court carefully considered the proof submitted by both sides on the question whether a change of venue should be had and arrived at the conclusion that the application should be denied. The record discloses that in so ruling the court did not abuse its judicial discretion.

2. Evidence of a test made upon him with a so-called 'lie detector' whereby emotional disturbances of a person questioned are recorded is not admissible on behalf of a defendant in a criminal action in support of his claim of innocence.

3. Evidence is not admissible on behalf of the defendant in a criminal case in support of his claim of innocence of a test made upon him by a hypnotist who placed such defendant in a hypnotic trance and who questioned the defendant while in such trance on the phases involved in the criminal action for the purpose of ascertaining whether he was telling the truth or whether he was guilty of the charge made against him.

4. Subject to certain limitations evidence of experiments made out of a court is admissible, the matter resting largely in the discretion of the trial court. The experiment should be made or shown to have been made under conditions and circumstances substantially similar to those prevailing at the time of the occurrence. In this case an experiment was conducted under conditions more favorable to the defendant than if the experiment had been conducted under precisely the same conditions prevailing at the time of the occurrence involved so far as that could be done and it is held that no error prejudicial to the defendant was committed by the admission of proof of the experiment.

5. Under NDRC 1943, Sec. 29-2114 which provides 'a conviction cannot be had upon the testimony of an accomplice unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof,' it is not necessary that the corroborative evidence shall cover every material fact testified to by the accomplice or be sufficient in itself to warrant a verdict of guilty or even establish a prima facie case. It is sufficient if such evidence corroborates the accomplice as to some material fact or facts and tends to connect the defendant with the commission of the offense charged.

6. Communications between an attorney and his client are privileged and the privilege extends to the testimony of the client and he cannot be compelled to testify as to what he communicated to his attorney in confidence or as to what was communicated to him by his attorney.

7. In this action a question was propounded by the attorney for the State to the defendant on cross-examination whether he had made a certain statement to his attorney. The statement concerning which inquiry was made was a privileged communication between the defendant and his attorney. The defendant was required to answer. The defendant did not make an affirmative answer, and finally when asked by the attorney for the State if he did not make some similar statement the defendant answered, 'not to my knowledge.' There was no further inquiry by the State. Thereafter counsel for the defendant interrogated him with respect to other confidential communications between the defendant and his attorneys wherein defendant insisted upon his innocence. It is held for reasons stated in the opinion that the erroneous ruling requiring the defendant to answer the question on cross-examination did not constitute reversible error.

8. In this state a trial court is without authority to direct a verdict in a criminal action and no error was committed in denying defendant's motion for a directed verdict.

Johnson & Milley, Wahpeton (Dell, Rosengren & Rufer, Fergus Falls, Minn., and Bradford & Kennedy, Wadena, Minn., of counsel), for appellant.

Wallace E. Warner, Atty. Gen., Vernon D. Forbes, State's Atty., Wahpeton (Francis Murphy, Fargo, of counsel), for respondent.

CHRISTIANSON, Judge.

The defendant, August L. Pusch, and Lydia Witt were informed against by the States Attorney of Richland County, and by such information they were accused of the murder of one Minnie Pusch in said county on the 26th day of September, 1947. The information was dated November 3, 1948, and was presented and ordered filed in the office of the Clerk of the District Court of Richland County on that same day. The information alleged:

'Vernon D. Forbes, State's Attorney within and for the County of Richland and State of North Dakota, accuses the above named defendants, August L. Pusch and Lydia Witt, with the crime of murder in the first degree, committed as follows, to-wit:

'That, on and about the 26th day of September, 1947, in the County of Richland and State of North Dakota, the above named defendants, August L. Pusch and Lydia Witt, did, wilfully, unlawfully and feloniously, and with a premeditated design to effect the death of one Minnie Pusch, a living human being, administer, and cause to be administered, to the said Minnie Pusch, a deadly poison, to-wit: strychnine, from which the said Minnie Pusch then and there died.'

Lydia Witt moved for a separate trial which motion was granted. Thereafter the defendant Pusch moved for a change of place of trial pursuant to the provisions of NDRC 1943, Sec. 29-1501. The motion was denied. The defendant Pusch entered a plea of not guilty and the action was brought on for trial before a jury with the Honorable Wm. H. Hutchinson as presiding judge. The jury returned a verdict finding the defendant Pusch guilty of murder in the first degree and fixing as his punishment imprisonment in the State's penitentiary for life. The defendant moved for a new trial which was denied and the defendant has appealed from the judgment of conviction and from the order denying the motion for a new trial.

The trial was quite extended. The transcript of the evidence adduced and the proceedings had upon the trial aggregates more than 900 pages. There are also a large number of exhibits including certain letters or notes some written by the defendant and others written by Lydia Witt. The defendant Pusch, Lydia Witt, and her husband Otto Witt were all sworn and testified as witnesses upon the trial. According to the evidence Minnie Pusch at the time of her death was approximately 60 years of age and the defendant, August L. Pusch, was approximately 60 years of age. The defendant and Minnie Pusch were married in October 1909 and lived together as husband and wife from the time of their marriage until the death of Minnie Pusch. According to the testimony of the defendant, he and his wife, Minnie Pusch, never had sexual relations. The defendant Pusch and his wife, Minnie, moved to Wahpeton in 1943 where the defendant was employed as manager of a local grain elevator owned and operated by the Peavey Elevator Company. He continued in such employment until January 1948. The elevator company owned a residence in the vicinity of the elevator which they furnished to the manager and which was occupied by the defendant and his wife during the time they lived in Wahpeton until the death of Minnie Pusch.

Lydia Witt, named in the information as co-defendant of August L. Pusch, is the wife of one Otto Witt. Otto Witt and his wife were married in 1923. They lived on a farm in the vicinity of Wahpeton and when they moved to Wahpeton in 1942 or 1943 they had four children. Otto Witt had been a farmer all his life until he was employed by the defendant Pusch to work in the elevator then managed by him. After such employment the Witt family moved to Wahpeton and occupied a home located about a half block from the home occupied by the defendant Pusch and his wife. There is some discrepancy in the testimony as to when Witt moved to Wahpeton. Witt testified that it was in 1942. The defendant Pusch states that it was in 1943. The deceased, Minnie Pusch, worked at the elevator as a bookkeeper for a period of approximately two years after Witt was employed there and during that time Mrs. Witt took care of some of the Pusch household duties and the two families were on friendly terms. However, the evidence shows without dispute that relations between the defendant, August L. Pusch, and Lydia Witt later became intimate and that illicit sex relations between the two commenced in 1943 or 1944 and continued until they were arrested in May 1948. There is a discrepancy in the testimony as to when the illicit sex relations began. Lydia Witt fixes the times as in May 1943 and the defendant, August L. Pusch, fixes the time as in the fall of 1944. They agree, however, that such relationship existed and that after it commenced it continued from time to time and from place to place including the home of Lydia Witt in Wahpeton until the arrest of the defendant Pusch and Lydia Witt in Arizona in May 1948, where they were then living together and holding themselves out to be husband and wife. In November 1945 Lydia Witt gave birth to a female child who was named Barbara. She testified that the defendant Pusch was the father of this child. The defendant testified that in March 1945 Mrs. Witt told him she was pregnant, and that he then told his wife that he had been having sex relations with Mrs. Witt, and that she had become pregnant. He further testified that when the child was born he told his wife about the birth and that he was the father of the child. The evidence shows that Minnie Pusch had been ailing and in 1947 had been in a hospital in the neighboring City of Breckenridge. When she...