 |
| concentration camp inmates in the production of armament in aid of
the war effort. Flick and one of his codefendants were nevertheless found
guilty on the charge presently under consideration. This was by way of an
exception to the holding that the defense of necessity was applicable. The
basis of this aspect of the decision appears from the following quoted from the
opinion: |
| |
“The active steps taken by
Weiss with the knowledge and approval of Flick to procure for the Linke-Hofmann
Werke increased production quota of freight cars which constitute military
equipment within the contemplation of the Hague Convention, and Weiss’
part in the procurement of a large number of Russian prisoners of war for work
in the manufacture of such equipment deprive the defendants Flick and Weiss of
the complete defense of necessity. In judging the conduct of Weiss in this
transaction, we must, however, remember that obtaining more materials than
necessary was forbidden by the authorities just as falling short in filling
orders was forbidden. The war effort required all persons involved to use all
facilities to bring the war production to its fullest capacity. The steps taken
in this instance, however, were initiated not in governmental circles but in
the plant management. They were not taken as a result of compulsion or fear,
but admittedly for the purpose of keeping the plant as near capacity production
as possible.” |
The defense of necessity in municipal law is variously termed as
“necessity,” “compulsion,” “force and
compulsion,” and “coercion and compulsory duress.” Usually, it
has arisen out of coercion on the part of an individual or a group of
individuals rather than that exercised by a government.
The rule finds
recognition in the systems of various nations. The German Criminal Code,
Section 52, states it to be as follows: |
| |
“A crime has not been
committed if the defendant was coerced to do the act by irresistible force or
by a threat which is connected with a present danger for life and limb of the
defendant or his relatives, which danger could not be otherwise
eliminated.” |
| The Anglo-American rule as deduced from modern authorities* has been
stated in this manner: |
| |
“Necessity is a defense when
it is shown that the act charged was done to avoid an evil both serious and
irreparable; that there was no other adequate means of escape; and that the
remedy was not disproportioned to the evil. Homicide through
|
__________
* Wharton’s Criminal
Law (Lawyer’s Coop. Publishing Co.. Rochester. N. Y.. 1932). volume 1,
12th edition, section 126. page 177.
1436 |
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