On writ of error to the Middlesex County Court of Oyer and Terminer.
For the plaintiff in error, Alex Eber (Morris Spritzer, of counsel).
For the defendant in error, John A. Lynch, Prosecutor of the Pleas.
The opinion of the court was delivered by
PORTER, J. John Swan, the plaintiff in error, was convicted of murder in the first degree without recommendation as to punishment and was sentenced to death. A previous conviction for the same crime was reversed by this court for trial error. 130 N.J.L. 372; 32 A.2d 843. The writ of error brings before us the entire record in accordance with R.S. 2:195-16.
Three assignments of error are argued for reversal. The first and second are based on the refusal of the trial court to limit the consideration of the jury to murder in the second degree upon the close of the state's case and upon the conclusion of the entire case. The third is that the verdict was against the weight of the evidence.
We conclude that these grounds are without merit and that the judgment should be affirmed. There was evidence of first
degree murder, as will be shown, and it was therefore not error for the court to deny the motions to limit the jury to a consideration of second degree murder.
Swan was employed as a porter in a moving picture theatre in New Brunswick. On the night of October 4th, 1942, he followed Gizella Mary Forepaugh, also known as Marion Oliver, into the women's toilet room in the theatre and there struck her, with his fists he says, about the head and face, overpowering her. He then took her back stage and stripped her of her clothing. He also took a ring from her finger and her pocketbook containing some change. Later in the night he returned and threw her nude body from an upstairs window into an adjoining yard. The following morning the body was discovered. Whether she was alive or dead when thrown from the window is not clearly shown. Swan was arrested on October 5 and admitted in writing on that day and again the next day the killing and the robbery. He showed the police where he had secreted the ring, the pocketbook and the clothing. Both confessions were admitted into evidence, and he repeated more or less the same account of his conduct when testifying in his own defense. He denied having committed rape, but he both denied and admitted in his confessions that he had intended to perpetrate that crime. The state did not contend that he had committed rape but did contend that the evidence was persuasive that he had attempted to commit that crime.
R.S. 2:138-2 defines degrees of murder as follows: "Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in perpetrating or attempting to perpetrate arson, burglary, rape, robbery or sodomy, shall be murder in the first degree; and all other kinds of murder shall be murder in the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder in the first degree or in the second degree." (Italics ours.)
The state's case was presented therefore upon the theory that this homicide was committed by ...