The overt acts are evidence under counts two and three of this indictment not only of the intent with which the preceding acts were done, but also of the fact that each of those defendants who knew that the preceding acts were being performed—and it is legally inconceivable to believe that they did not know—had knowledge of the fact that there was probable danger that the preceding acts would result in the overt crimes or that the preceding acts, being unlawful eo ipso and therefore felonious, would result in the overt acts as the natural consequence of preceding felonious acts. This is murder—whenever a homicide resulted from the foregoing act. And the murder being “an act usually done pursuant to” the “previous scheme and plans” establishes the guilty intent of each and all of the defendants to commit that murder who stood in any of the relationships to the murder defined in paragraph 2, article II of Law No. 10.
We have also said that it is an inevitable result of the murder of hundreds of thousands and millions of humans that such mass murder dulls our realization that the basic simple principles of the law which define the crime of murder of a single human furnish the standard by which was determined the guilt of those who have murdered those humans.
A review of these basic rules is therefore proper.
In 1877 Mr. Justice Stephen undertook to restate the English common law of homicide as he then found it. He states that an unlawful homicide, without adequate provocation, was murder, if it followed from an act accompanied by one of the following states of mind: (1) an intention to cause the death of or grievous bodily harm to any person; (2) knowledge that the act will probably cause either of the results, even though the actor hopes that they might not occur or is indifferent about them; or (3) an intention to commit a felony or to resist a peace officer in the execution of his duty.
As to the first category, no one can quarrel and there is evidence to support the commission of such murders by individual defendants.
As to the second category, Mr. Justice Holmes thought that the actor’s awareness of the danger was immaterial, that the standard was completely objective. In Comm. vs. Pierce (1884) 138 Mass. 165, page 178, he stated his view succinctly—
“When the jury are asked whether a stick of a certain size was a deadly weapon they are not further asked whether the defendant knew it was so.”
In any event, in this case before this Tribunal, we shall ask the Court to bear in mind that lawyers, by the very nature of their legal training and experience, knew that the enactment of ex post facto laws, specially designed racial legislation and other legislation directly designed to restrict and destroy the right to make an adequate defense to a criminal charge; the handpicking of judges and their control by state and party; the submergence of the courts and prosecutors to the superior authority of the police; pretrial agreement of judges and prosecutor on judgment and penalty; unlawful extraterritorial extension of German law and the issuance of the Nacht und Nebel [Night and Fog] decree contrary to the laws of war, would probably cause death of human beings, subjected to such a perverted judicial system. These defendants are not farmers or factory workers.
As to the third category, that of homicide resulting from the intention to commit a felony or while resisting arrest, it is not amiss to point out that those who are connected with a plan to extend, or who consent to, or abet the unlawful extension of German law and German courts into overrun countries contrary to the laws of war, are doing acts which amount to larceny while armed or robbery; and that those individuals who commit acts which abet or are connected with the waging of an aggressive war or a plan to do so, or who consent thereto, are resisting the efforts of the peace enforcing nations of the world to arrest the criminal. The evidence in this case will establish the unprovocated homicide of countless numbers as the result of the doing of such acts by these defendants which are clearly felony murders.
These are but the most apparent applications of the three categories of murder to the evidence in this case. Time will not permit our further exemplifying them now. They will be presented adequately when we summarize the evidence. We do not wish to be understood by furnishing these few examples as having exhausted the cases, where the application of the principles so readily understood when one life is taken by murderous homicide, to the evidence of this case, will establish murders and mass murders by these defendants. Furthermore, other crimes common to the criminal laws of civilized nations, such as enslavement, kidnapping, or mayhem, have been committed by these defendants, which can be established by the application of similar basic principles to the evidence, which should make the task more simple and at the same time, by reducing the seeming complexities of mass criminality under international law to concepts with which the average citizen of a nation is acquainted, seem to serve the salutary purpose of increasing the hatred of the average man for war and to warn him of the dangers inherent in the totalitarian police state, dominated by the philosophy that the end justifies the means used to attain it.