and I suspect would have been considered a crime of 2nd degree murder if juudged by an American court. That is because apparently one of the US troops was killed in the attack on the village, which could have infuriated his comrades into the heat of passion which would have reduced the severity of the crime from 1st degree to second degree murder.
That is interesting. From the start of recorded history, crimes of passion haven't been dealt with as severly as premeditated murder. Even in the Old Testament there isn't a death penalty for murder unless there was "lying in wait".
Now, what is the time limit involved? Today there is a story about a mobster who shot a man in a night club because he was heckling a singer. If he had gone home and went to bed, woke up the next morning, hunted down that heckler and shot him, would that have been first or second degree murder?
And returning to Germany, if the culprets were minorities who had legitimate grevances against white people (Rainbow and Thunderbird) would that be mitigating? If those soldiers had a history of murder in, say, Italy, before they saw concentration camps, how would that have figured in?
I must say I'm glad that I wasn't a judge back then.
Hi Dan. I too am glad I wasn't a judge back then! Take the case of the fellows from the 45th Infantry Division at Dachau. The killings of the SS guards that took place there were, it seems to me, almost incontrovertibly done in the heat of passion, and without premeditation or malice aforethought. To my mind the more interesting and difficult question is, given the circumstances, was General Patton's decision to quash the investigating officer's recommendation of a court martial justified or not. And I'm of two minds about that.
On the one hand, a trial by court martial would have permitted a full and complete development of testimony and evidence of just what actually happened, which unfortunately we don't and will now never have, and so are condemned to opinions based on isolated and unsworn testimony, untested in the crucible of cross-examination. It could very well be that the evidence could have gone either way, but at least a formal court martial would have tended to clear the air and developed the facts of the matter so as to give us a more secure basis for reaching a judgment.
On the other hand, the effect of a court martial on the conduct of the war is surely a factor worthy of consideration. The units of the 45th Division involved in the incident at Dachau went on to continue the fighting. They were obviously valuable, seasoned veterans and important to the war effort. The effect of the convening of a court martial of personnel of this unit, under the particular circumstances of the liberation of Dachau, could have had a deleterious effect upon the morale, not just of the 157th Regiment, but on the Division as a whole, and perhaps even beyond. Patton had a war to win, and I'm damned thankful I was not in his shoes - although from what I've read of him I think he probably did not suffer much of an agony of conscience in his decision.
As to your example of the mobster and the nightclub, it's pretty hard to believe that after a good night's sleep his passion remained heated enough to support a claim of 2nd degree murder.
And as to the case of a member of a minority having a legitimate hatred against white people (and interestingly enough, one of the alleged perpetrators of the massacre was Jack Bushyhead, a full blooded Cherokee Indian from Oklahoma, who after the suffering that his tribe experienced through the long march of the "Vail of Tears" might have been able to assert such a claim) I don't know of a case where that has been held as a justification for murder.
Certainly, had the soldiers in question had shown a propensity toward murder by their previous conduct it would probably, if judged in an American court, have been held to have a bearing, not, however, on their innocence or guilt of murder, or whether the murder was of 1st or 2nd degree, but rather on the sentence to be awarded.
All of which reminds me of the story of the fellow running through the streets frantically searching for a one-armed lawyer, so that he could avoid hearing "on the one hand and yet on the other" and thereby get a straight answer to his question.
But please believe that most serious cases are so fact sensitive that it is not only difficult but dangerous to try to reach a conclusion on the basis of a simple hypothetical situation.
Best regards, Kaschner