According to common law, the killing of a man can be either murder, manslaughter, excusable homicide, or justifiable homicide. Excusable homicide and justifiable homicide are not punishable.
The present American law does not differentiate between justifiable homicide and excusable homicide. I refer to my closing brief, particularly to the statements of Wharton in his book Criminal Law, 12th edition, volume I, 1932, pages 826 to 879. According to Wharton, excuse and justification for a homicide are either repulsion of felonious assault, or prevention of felony.
The right of self-defense, i.e., repulsion of felonious assault, is restricted to a narrowly defined number of persons.
On the other hand, everybody is entitled to prevent a crime. I refer to the details contained in my legal arguments of my closing brief.
Killing a man to prevent a felonious crime requires the following conditions which are set forth in my closing brief:
(1) The perpetrator must have the bona fide belief that the commission of a felonious crime is immediately impending. It is not a condition that such a crime would actually have been committed. The bona fide belief of the accused is quite sufficient. In this connection I refer to the legal arguments of the closing brief.
(2) This belief of the accused must not be negligently adopted.
(3) There must not be any other possibility of preventing a crime than the killing of a person. In other words—the killing must be the only means available to prevent the crime.
The prosecution’s assertion in its final plea, “One must not kill five to save five hundred”, therefore, cannot be considered generally valid either from the point of view of German or American law.
On the basis of the statements of the prosecution, I have not been able to see clearly whether that sentence had reference only to the justification of experiments on human beings or else to the killings which were carried out by Dr. Hoven or with his knowledge.