#### STATE OF NORTH DAKOTA, Respondent, v. ED. FICHTNER, Appellant.

(226 N. W. 534.)

*401Opinion filed August 12, 1929.

*Cameron & Helgeson,*for appellant.

*James Morris,*Attorney General, *Harold Shaft,*Assistant Attorney General, and *Arthur B. Attains,*for respondent.

*402Burke, Oh. J.

Defendant was convicted of the crime of poisoning food with the intent that the same should be taken by a human being to his injury, and from an order denying a motion for a new trial, he appeals.

The evidence conclusively shows, that Albert Ziegenhagle put poison in the sugar at his home, with the intent to dispose of his father and mother. It is the contention of the state, and it is the testimony of Albert Ziegenhagle that he (Ziegenhagle) put the poison in the sugar under an agreement with the defendant and the one serious question involved, is, Is there any material evidence independent of the testimony of Albert Ziegenhagle which connects the defendant with the commission of the offense. Under § 10,841, Comp. Laws 1913: *“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 suffi*403cient if it merely shows the commission of the offense, or the circumstances thereof.” State v. Coudette, 7 N. D. 109, 72 N. W. 916; State v. Smith, 51 N. D. 131, 199 N. W. 189; State v. Reilly, 22 N. D. 353, 133 N. W. 914; State v. Dodson, 23 N. D. 305, 136 N. W. 789.

The state claims, that the defendant made certain admissions while in jail in conversation with Albert Ziegenhagle.

In the preliminary examination the defendant is asked this question, viz.: “Didn’t you say to him in substance this, “I am going to hold out to the last before I admit it’ ” ? “Didn’t you say that to Albert right there in the sheriff’s house in the presence of the sheriff’s boy?” Ans. “Yes.” The court stenographer took the testimony at the preliminary, and at the trial was a witness for the state; he is asked if that question was asked at the preliminary, and if that answer was given, and he answered, “Yes, sir.” Now that question was asked of the defendant at the preliminary, and he did answer yes, but later he was recalled, and testified that he did not understand the question at the time it was asked, that he did understand it when he was recalled, and that he made no such statement to Ziegenhagle. This part of the examination was not introduced in evidence by either the state or the defendant. It was no doubt inadvertently left out, but the defendant was entitled to have his explanation of the answer go to the jury for what it was worth. The whole of the preliminary was introduced in evidence, but the jury, of course, would only consider that part, that was called specifically to their attention.

The defendant has little or no education, he speaks mostly in German; the trial judge thinks that, “he has not the brain of a bright eight-year-old child;” and it is more than probable, that'he did not understand the question. What he probably said was what Ziegenhagle testified that he said, viz.: “He said he know what they brought him there for, but that it aint true, I just told a lie it is a lie I am trying to get him in the pen, but he will fight to the last, he wont go” — a statement wholly consistent with innocence and just what an innocent person would be expected to say under the circumstances. No one testified that the defendant said I am going to hold out to the last .before I admit it, but the defendant is asked a question containing forty-seven words many of which he did not understand which includes that statement, and his answer, yes, without his testimony *404that he did not understand that question, and that he did not state to Ziegenhagle that he would hold out to the last before he would admit it, went to the jury and was no doubt argued to the jury as it was in this court, as an admission of the defendant connecting him with the crime. This was not fair to the defendant, and if it had been urged on a motion for a new trial, no doubt the state’s attorney would have consented to, and the trial court would have granted a new trial. It was not specifically pointed out on motion for a new trial nor on argument in this court, but defendant insists that there is no evidence independent of Zicgenhagle’s which connects him with the crime, and having the entire record before us, it is clear that this testimony going in without the change which the defendant subsequently made, was very damaging and the defendant did not have a fair trial.

The state also claims, that the testimony of Fred Stephens connects the defendant with the commission of the offense. Stephens was janitor of the court house and slept in the jail. He testified that he overheard a conversation between the defendant and Ziegenhagle in which the defendant told Ziegenhagle “to lie out of it. He said he going to lie him out of it and then he would come up to the reform school and bring some girls along. He said they couldn’t stay together anyway he has got to go to the pen.” Before passing-sentence the trial judge examined at length the defendant, and also witness Stephens, who again1 makes the same statement to the judge, “that they were talking German, that he understood German although he told the defendant and Ziegenhagle that he did not. He said they were talking loud, they were talking like you talk to somebody when they could’nt hear.” The defendant and Ziegenhagle were confined in the same cell, and it is clear, from the testimony that witness Stephens was sleeping near for the purpose of overhearing any admissions that the defendant might make. He states, “that they had a long conversation, that they talked loud,” but the only thing that he remembers is that the defendant told Ziegenhagle “to lie him out of it, that he would come up to the reform school and bring some' girls, that they could not stay together he has got to go to the pen.”

Ziegenhagle, testifying for the state said: “He asked me what for they brought him up here, and he said, he knows what they brought him up here for, but that it aint true, I just told a lie, and he said *405it is a lie I am trying to get bim in tbe pen, but be will figbt to the last be won’t go.’’ On cross-examination he is asked: “Now tbe day be came up to tbe sheriff’s bouse did Ed. say this to you, ‘I am not guilty’ ?” Ans. “Yes.” Ques. “And be further said that you lied by bringing bim in didn’t be?” Ans. “Yes.” Ques. “He said you are a liar didn’t he ?” Ans. “He said I am a liar.” This is cor* roborated by the defendant. There was no one present at tbe time but Stephens. Tbe record shows they asked Stephens if be understood Herman and be said, No. Since they believed that be could not understand German it is hardly probable, if they were conspirators, and both guilty that tbe defendant called Ziegenbagle a liar; and told bim that be was trying to get bim in the pen, and say to bim you know7 I am not guilty, for since they believed that Stephens could not understand German they would also believe that they were just as safe in talking together as if they were entirely alone. Stephens claimed at bis examination before the trial judge that be could understand German, and yet while they talked long and loud be does not remember any of tbe conversation, except, tbe statement that defendant told Ziegenbagle to lie bim out of it, that they couldn’t go to tbe training-school together, be would have to go to tbe pen.

It is apparent, that tbe trial judge was not satisfied from tbe very lengthy examination of the defendant and Stephens, covering some thirty-seven pages of typing, and bis remarks which are included in tbe record. There are also tbe remarks of tbe state’s attorney who investigated and tried tbe case, as well as bis remarks on tbe argument in this court, in substance, that be was not satisfied with tbe evidence. Tbe only other corroboration in tbe case, is tbe testimony of tbe witness who beard a long and loud conversation, but can only remember that portion of it which might be construed against tbe defendant, while an entirely different interpretation might be placed upon tbe part that be does remember by a person who beard and remembered tbe entire conversation. Both tbe state’s attorney and the judge seem to think, however, that Ziegenbagle bad no' motive in testifying against tbe defendant. It often is very difficult to' determine tbe motive. Ziegenbagle bad a motive in burning down tbe school bouse, that was done so be would not have to go to school. No one told bim to do that, be didn’t need any prompting or encouraging. Tbe school house was *406in bis way, so be removed it. But wbat was tbe motive for poisoning tbe pony ? About tbe dearest thing on eartb to a normal boy is bis pony, and tbis boy poisoned bis pony without any suggestion from any other persons. Evidently tbe pony like tbe school bouse got in bis way and be removed it. He knows bow to remove whatever gets in bis way without assistance, and there is no necessity to look for a motive in tbe act of one with such strong criminal tendencies. According to bis own testimony, be burned tbe school bouse, and poisoned tbe pony before there was any talk of crime between him and tbe defendant. lie got tbe poison and did not use it to poison a dog, but bid it in tbe barn, tried it out first on his pony and then on bis parents. He committed a most serious crime for which be might be sent to the penitentiary for a long term of years, and being only 17 years of age' if .be could place tbe blame on someone older be might get off with a few years in tbe training school, and that is wbat happened, he went to tbe training school, tbe defendant went to tbe penitentiary, and therein is tbe motive.

There is no evidence that tbe defendant ever coiñmitted any crime outside of tbe testimony of Ziegenbagle who has natural criminal tendencies. There is no evidence that tbe defendant made himself obnoxious to tbe Ziegenhagles, or to tbe daughter, Huida, or that be pressed bis attentions on her. Tbe mother testified that Huida did not like tbe defendant, and always left tbe room when be came, and Huida testified to practically tbe same thing.

In view of tbe doubts expressed by tbe trial judge and tbe state’s attorney as they appear in the record, tbe very doubtful character of tbe corroborating evidence, and it further appearing from tbe record that tbe defendant did not have a fair trial tbe order overruling tbe motion for a new trial is reversed, and tbe case is remanded for a new trial. Tbe other questions raised are without merit and need not be considered.

CheistiaNSON, Birdzell, Nuessle, and Burr, JJ., concur.