Beaten, Stripped, and Thrown from a Window

[johnsmith82]

Originally Posted by Daizya

Her skull, neck, nose, and both jaws were broken, but there was no evidence of criminal assault. UM..TF?

In this case, "criminal assault" is being used as a pseudonym for sexual assault, likely due to the vernacular of the time period.

[Xploit Machine]

In State v. Swan, 131 N.J.L. 67, 69 (E. A. 1944), the court indicated that an attempt to commit rape is committed by the first overt act, i.e, by the "primary attack upon the woman made for the purpose of carrying out the intent."


Argued October 19, 1943 - Decided December 9, 1943.

1. Where on the trial of an indictment for murder, there was evidence of first degree murder, it was not error for the court to deny motions to limit the jury to a consideration of second degree murder.

2. An attempt to commit a crime has these elements: first, the intent; second, performance of some act toward the commission of the crime; and third, the failure to consummate the commission of the crime.

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 Atl. Rep. (2 d) 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."

The state's case was presented therefore upon the theory that this homicide was committed by Swan while attempting to perpetrate rape and while perpetrating robbery as defined by this statute supra.

It is argued by the plaintiff in error that the robbery was not committed, nor was the intent to do so evident until after the killing and that it was then done for the purpose of concealing the evidence of the crime; that once death occurs by homicide the degree of murder is fixed by the intent and conduct of the accused up to the point of death and cannot be changed by any subsequent act or intent and that therefore the crime was murder in the second degree. However that may be, the contention is without merit, because Swan himself said in his confessions several times, and also in his testimony at the trial, that the girl was alive when he stripped her clothes from her body, her ring from her finger and took her pocketbook.

Next to be considered is the question of whether the killing was perpetrated while an attempt was made to commit rape. This court has laid down the rule that "an attempt to commit a rape does not begin with the act of penetration, but with the primary attack upon the woman made for the purpose of carrying out the intent; and that this intent may be formed at the very moment of the attack." State v. Knight, 96 N.J.L. 461 (at p. 470); 115 Atl. Rep. 569. An attempt to commit a crime has three elements: first, the intent; second, performance of some act toward the commission of the crime; and third, the failure to consummate the commission of the crime. State v. Schwarzbach, 84 N.J.L. 268; 86 Atl. Rep. 423.

Applying these settled rules of law, it is entirely clear to us that under the proofs and the inferences that may properly be drawn therefrom the jury was fully justified in finding that Swan intended to rape this girl and that his intention was followed by definite overt acts, namely, his actions when accosting her and the entire circumstances, including the taking of the girl after she was overpowered to a secluded spot back stage and the tearing off of her clothing. The verdict was not, we conclude, against the weight of the evidence.

Finding no cause for reversal, the judgment is affirmed. For affirmance — THE CHANCELLOR, CHIEF JUSTICE, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 15.

For reversal - None.

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[Xploit Machine]

Argued February 2, 1943 - Decided June 24, 1943.

1. A trial judge is without power to direct a jury to return a verdict of murder in the first degree.

2. While it is the long established right and duty of a trial judge in this state to comment on evidence, it is equally true that this long established right and duty are not without equally long established limitations; the ultimate decision of disputed matters of fact is always the function of the jury.

3. A charge that " you will find that this girl came to her death by the hands of the defendant in such manner as would make it murder in the first degree" was in fact a direction to the jury to return a verdict of guilty of murder in the first degree.

4. Where, as here, the comments of the judge in charging the jury were in practical effect a direction of a verdict of guilty of murder in the first degree, the accused suffered a manifest wrong or injury which clearly calls for a reversal.

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 make it murder in the first degree."

We are constrained to hold that the challenge of the plaintiff in error is well founded. True, it is the long established right and duty of a trial judge in this state to comment on evidence ( Cf. State v. Jefferson, 129 N.J.L. 308 , and cases collated (at p. 310); 29 Atl. Rep. (2 d) 546), but it is equally true that this long established right and duty of the trial judge are not without equally long established limitations. The ultimate decision of disputed matters of fact is always the function of the jury. Cf. State v. Overton, 85 N.J.L. 287, 294; 88 Atl. Rep. 689. And the trial judge is without power to direct a jury to return a verdict of murder in the first degree. State v. Jefferson, supra. There is no authority for a charge that " you will find that this girl came to her death by the hands of the defendant in such manner as would make it murder in the first degree." This charge was neither withdrawn by the judge nor cured in his subsequent remarks or instructions. Giving to words their natural and ordinary meaning, such a charge could have but one meaning, namely, a direction to the jury to return a verdict of guilty of murder in the first degree. Such a direction strikes at the very heart of our fundamental and deeply rooted concepts of justice, namely, that an accused is entitled to his constitutional right of a trial by jury and that he is entitled to a trial by a jury of his peers. The challenged direction is a clear invasion of those rights. It transcends proper comment. It unquestionably invades and usurps the exclusive realm of the fact finding body. It utterly destroys the philosophy and foundation upon which our jury system is made to rest. It reduces the function of the jury to a pro forma ratification of the conclusions of the trial judge. No word or act of this court shall contribute to such a result.

We are entirely satisfied that our holding in State v. Jefferson, supra (at p. 311), is controlling. Here, as in that case, the challenged language of the charge "carried a greater weight and more binding importance to the jurors, than a mere comment upon evidence." And here, as in that case, it was, in substance and effect, a direction to them that the verdict should be guilty of "murder in the first degree." It was fatally injurious. Plaintiff in error "suffered a manifest wrong or injury" which clearly calls for a reversal.

Accordingly, the judgment of conviction is reversed and a venire de novo is awarded.

For affirmance - THE CHANCELLOR, CASE, DONGES, WELLS, HAGUE, JJ. 5.

For reversal - THE CHIEF JUSTICE, PARKER, BODINE, HEHER, PERSKIE, PORTER, COLIE, DEAR, RAFFERTY, THOMPSON, JJ. 10.

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[Coronher66]

Black and White old crime photos are always quite beautiful.

[William May]

Currently working to find out where she was buried.

[Dr_Jackal]

Originally Posted by William May

Currently working to find out where she was buried.

I was going down a rabbit hole of looking at crime scene photos and came upon this old thread.

Found two cases for the murder. The first one is the later case which gives two names of the victim: Gizella Mary Eorepaugh aka Marion Oliver. First (i.e. older one for reference. Medium has an article about her but you have to have an upgraded account so that didn't work out for me.

Actually, per the Medium one, she had a twin sister which is an interesting part of her history. Maybe that will help your search!

[PatriceIs60]

Originally Posted by Daizya

Her skull, neck, nose, and both jaws were broken, but there was no evidence of criminal assault. UM..TF?

Maybe that's what they called rape back in those days. There was a time if a woman was pregnant, they basically said "She's with child" That's the only reason I can think of