 |
| |
Friedrich von Buelow
Werner Wilhelm Heinrich Lehmann
Hans
Albert Gustav Kupke |
|
| |
| The indictment contains four counts, which for convenience may be
generally described as follows: |
| |
| (1) |
Planning, preparation, initiation, and waging aggressive
war. |
| (2) |
Plunder and spoliation. |
| (3) |
Crimes involving prisoner of war and slave labor. |
| (4) |
Common plan or conspiracy to commit crimes against
peace. |
|
| |
| On 24 February 1948, the prosecution announced that it had completed
the presentation of its evidence and rested its case-in-chief. Thereafter,
during the session of 5 April 1948, the Tribunal, through the President said,
in part, as follows:¹ |
| |
“On March 12 last, the
defendants filed a joint motion for an acquittal on the charges of crimes
against the peace. We construe this to be a motion for a judgment of not guilty
on counts one and four of the indictment on the ground that the evidence is
insufficient as a matter of law to warrant a judgment against them on those
counts.
“After a careful consideration of this motion, the
prosecution’s reply thereto, and the briefs and the evidence, we have come
to the conclusion that the competent and relevant evidence in the case fails to
show beyond a reasonable doubt that any of the defendants is guilty of the
offenses charged in counts one and four. The motion accordingly is granted and
for the reasons stated the defendants are acquitted and adjudged not guilty on
counts one and four of the indictment.” |
Following this ruling the Tribunal filed an opinion stating the
reasons for its conclusion.
In taking the foregoing action with respect
to counts one and four, the Tribunal was guided by the rule as stated in one of
the most authoritative American texts. This is as follows:²
|
| |
“The defense is not required
to take up any burden until the prosecution has established every essential
element of crime charged beyond a reasonable doubt. When the prosecution has
finished its case, the defendant is entitled to an acquittal if the case of the
prosecution is not made out beyond a reasonable doubt. When this is done, then,
but not before, can the defendant be called upon for his defense.”
|
__________
¹ This opinion is
reproduced above in section VI, together with the separate concurring opinions
of Presiding Judge Anderson and Judge Wilkins on the dismissal of the charges
of crimes againat peace.
² Wharton’s Criminal Evidence
(Lawyers Coop. Publishing Co., Rochester, N. Y., 1935). volume 1, 11th edition.
section 200, pp. 220—221.
9034320— 51 — 85
1329 |
. 
