State v. Pusch

Burke, J.

(dissenting) I cannot agree that the error in permitting the prosecuting attorney to examine the defendant concerning a statement he purportedly made to his attorney was not prejudicial. The question asked was, “Did you not in that conversation say to-him this — now I want you- to-listen to it carefully: Tf I confess will I get some of my money back?’” When the trial, judge indicated that he would sustain an objection to the question because he thought it called for the disclosure of a confidential communication between attorney and client, the prosecuting attorney stated, “It was not confidential as to some third person who may have overheard it. Of course the lawyer couldn’t testify to it, that is clear, it would be confidential as far as he is concerned, but a third person who overheard it could testify to it .... Of course he (the defendant) didn’t know where this other person was. I can’t ask this witness; he doesn’t know. He didn’t even know the person was there.” When the objection was overruled, the defendant, upon several repetitions of the question made equivocal answers, such as, “I have never said I was guilty”, “I wouldn’t deny it and I wouldn’t say ‘Yes’ “If I máde a statement like that it would be in connection with doing it for'Lydia Witt to get her out to the children;” and “Not to my .knowledge.” The prosecuting attorney thereafter made no attempt to establish by any evidence his positive assertion that some third person had overheard the defendant make the statement.

The jury could justifiably, from the equivocal answers given by the defendant, have reached the conclusion that he had made the statement as alleged. They might unjustifiably have reached the same conclusion from the unsworn statement of the prosecuting attorney. Having reached the conclusion that the statement had been made, they might have drawn an inference of a consciousness of guilt on the part of the defendant from his use -of the words “If I confess.” Prom what transpired later in the *903 trial I am satisfied that some of the jurors, at least, did reach that conclusión and draw that inference.

After the case had been submitted to the -jury and had been considered by them for four or five hours they returned into court and inquired concerning this testimony. The question was, “In the testimony day before yesterday, that would be Thursday, there was evidence introduced and we don’t lmow whether it was accepted or stricken out, regarding the conversation that was overheard by the deputy sheriff, Mr'. Jensen, I believe, at the jail. Was that stricken out or was it carried on the record as such regarding the conversation he overheard?” Thereupon the record of the incident was read to the jury.

I cannot agree with the majority of-the court in holding that little weight is to be given to the fact that the jury returned into court to ask this question after considering the case for four or five hours. The majority considers that it does not follow from the fact that the jury made the inquiry that they attached much importance to the incident. They are no doubt correct in the sense that this conclusion does not follow inexorably to the exclusion of all other possible hypotheses.

In my view, however, the proper conclusion as to the importance the jury attached to the incident lies in the answer to the question, “What is the most reasonable inference to be drawn from what they said and did?” To me the answer to that question is clear. The inference which I consider, not only most reasonable, but the only reasonable-one, is that some of the jury believed -that the defendant had said to his attorney, “If I confess, will I get some of my money back?” and that they considered that the statement was some evidence of guilt. It is not reasonable to assume that jurors would interrupt their deliberations to inquire if evidence, which they did not believe or which they considered had no bearing on the case, was stricken from the record. I am satisfied that the examination of the defendant concerning this matter, erroneously allowed, contributed to the result of the trial, a verdict of guilty of murder in the first degree. It was therefore prejudicial.