On error to the Middlesex County Court of Oyer and Terminer.
For the plaintiff in error, Alex Eber (Morris Spritzer, of counsel).
For the state, John A. Lynch, Prosecutor of the Pleas.
The opinion of the court was delivered by
PERSKIE, J. The basic question requiring decision is whether the trial judge transcended the bounds of proper comment in charging the jury.
This is a homicide case. Plaintiff in error was convicted of murder in the first degree, without recommendation of life imprisonment, and was sentenced to death. He was tried on an indictment, in statutory form, which charged him with the murder of Gizella Mary Forepaugh, also known as Marion Oliver, on October 4th, 1942, in the City of New
Brunswick, in the County of Middlesex. Plaintiff in error appeals and the judgment under review is before us on a writ of error (N.J.S.A. 2:195-1) and on the entire record of the proceedings had upon the trial of the cause pursuant to N.J.S.A. 2:195-16.
The case for the state was tried and submitted to the jury upon three theories, namely, (1) that the killing was willful, deliberate and premeditated, (2) that the killing occurred in the perpetration, or attempted perpetration, of rape, and (3) that the killing occurred in the perpetration of a robbery. In light of the result we reach, there is no need to detail the proofs which were adduced in support of any one or all of the states' theories.
Plaintiff in error challenges the propriety of his conviction. That challenge is bottomed on the broad premise that the judge transcended the bounds of proper comment in charging the jury. More specifically, it is argued that the comments of the judge were in "practical effect a direction of a verdict of guilty of murder in the first degree." If this be so, plaintiff in error clearly "suffered a manifest wrong or injury." N.J.S.A. 2:195-16.
We turn to the charge. At the outset thereof, the trial judge impressed upon the jury the fact that this was one of the "most important" cases tried in the county for many years. For, in his words, "it revealed a most dastardly, horrid murder, without the shadow or a cause of excuse." He then read to the jury the applicable law, and instructed the jury as to its meaning and application. He stated to the jury his version of the proofs and the inferences he drew from those proofs; he instructed the jury that if he had stated the facts incorrectly or if he had not drawn such inferences from the facts "as you would draw" then the jury must take its version of the facts and such inferences as it drew from those facts; and then he said:
"So it seems to me that you will be justified and will find that this girl came to her death by the hands of this defendant, in such manner as would ...