SECTION I - INTRODUCTORY REMARKS
72. The 'General Part ', as has been shown, deals with the essential principles of German Criminal Law as a whole, while the 'Special Part' is devoted to the rules relating to individual offences. There are such large numbers of these that in order to present them in some kind of systematic or logical order, moder writers in general find it useful to group them according to the nature of the protected interests against which the various offences are aimed. The StGB itself attempts something of the kind, but its classifications of the various groups of offences are too narrow and are therefore apt to degenerate into mere lists. A really clear survey is only possible-in the opinion of present-day writers-if the grouping is wide enough to allow the various offences to fall easily and naturally into their proper categories. The simplest and therefore the clearest system of classification is that adopted by Welzel in his survey of the 'Special Part ', which he divides into:Offences against the Person-(sections II to IX below).
Offences against Property-(sections X to XI below).
Offences against the Community-(sections XII to XVII below).
Offences against the State-(sections XVIII to XXII below).
Within the scope of this present survey it is not possible to mention all the offences the constituents of which are laid down in the Special Part, still less to discuss them in detail. The less important offences will therefore either be omitted or mentioned briefly, in order to leave space for discussion of those which by any standard must be considered important.
SECTION II - HOMICIDE
73. First in order of importance among offences against the person are of course the various forms of homicide, particularly murder. Before 1941 murder was defined as the intentional premeditated killing of another person.
This conception has been replaced by an evaluation of the physical act with the help of a yardstick. (Law of 4 September, 1941, RGBI I, p. 549.) ' Murder ' is now the killing of another person for a particularly despicable motive or in a particularly heinous manner. A murder may be committed:
(a) for particularly despicable reasons, i.e. for the joy of killing, in satisfaction of a sexual urge, for greed or from other base motives;
(b) in a particularly base manner, i.e. perfidiously, or cruelly, or by dangerous means (gemeingefiihrliche Mittel-lit.) with means dangerous to the community;
(c) for a particularly heinous purpose, viz. to facilitate or conceal some other crime.
Those who kill for lust and those who kill the victims they have raped are said to kill ' in satisfaction of a sexual urge '. 'Perfidiously' means more than 'cunningly'; it connotes deliberate deception and doubledealing. 'Cruelly' means the infliction of particularly severe physical or mental suffering. 'Dangerous means' are those which entail dangers to others besides the actual victim, such as arson or the use of explosives.
Murder is according to section 211, punishable by death, in certain exceptional cases by penal servitude for life. Although the death penalty has been abrogated by article 102 of the Basic Law for the German Federal Republic the fact that section 211 in the version of 1941 allowed the infliction of the death penalty is still of importance on the following reasons. As Military Government Law No. 1 provides that capital punishment is abolished for all offences which were not subject to the death penalty before 30 January, 1933, and that cruel and unusual punishments may not be inflicted, an important controversial point has arisen, namely: as capital punishment was introduced after 1933 in respect of a crime defined in a manner not known to the previous law, and as the new definition contains the words, 'or from other base motives ', is the old definition applicable in conjunction with the new? In other words, must the court when dealing with a charge of murder ascertain whether or not the perpetrator acted with premeditation? Or is only the new definition applicable? The answers to these questions must be sought along the following lines:
(a) Military Government Law No. 1 does not affect the validity of the present section 211, seeing that murderers were subject to the death penalty before 1933, and seeing that the death penalty in itself, which exists in many other countries, cannot be called a 'cruel or unusual' punishment. (Also of this opinion, Leuer von Hintiber, Strafrecht, 1948, p. 68.) (b) Instructions to Judges No. 2 state: Where the penalty has been increased since 1933, no punishment higher than the maximum permitted before 30 January, 1933, shall be inflicted. As HinUiber rightly points out, the new version of section 211 has not broadened the scope of the offence of murder, but has merely altered it, so that the applicability of the death penalty has not been extended.
(c) Section 211 in its present form permits the death penalty to be inflicted if the deed was done '... from other base motives '. Is this a national socialist concept and section 211 therefore only applicable in its present form if premeditation is found to exist? This opinion was put forward by the appellants in CC App. 1947 No. 4: 'The purposes of Mil. Gov.
Law No. 1 are clear from its preamble, and they include the elimination from German law of Nazi policies and doctrines. Law No. 1 is a safeguard against the application by German courts of these doctrines and policies.
If a German court, acting upon such policy or doctrine, should pass a death sentence and that sentence were carried out, it would of course be impossible to set the matter right; and in section 211 as it stands to-day there is one phrase which might be construed by an unscrupulous court in accordance with Nazi doctrine. It is the phrase 'or other base motives' (oder sonst aus niedrigen Beweggriinden).' Unfortunately the Appeal Court gave no ruling on this matter, but the present writer is of opinion that the appellants' contention is untenable. Section 211 is not national socialist in character, and the expression 'other base motives' does not make it necessary to investigate whether or not the offender acted with premeditation. A decision of the German Supreme Court of the British Zone of 24 July, 1948, discusses this problem in detail on the same lines as stated above and with the same result. The decision is published in the Monatschrift fiar Deutsches Recht, 1948, Jahrg. 2, Heft 1. p. 482.
Anyone who takes the life of another person commits a ' homicide '. A '1person ' is any living human being, including an infant only partially extruded from its mother's body. ' Life ' means the period up to the actual moment of death. It is therefore possible to ' murder ' a dying person or an infant incapable of sustaining life. Intentionally and unlawfully to bring about another person's death-in any form-is criminal homicide. (Suicide is not a punishable offence.) There must be a causal nexus between the act of killing and the death itself.
74. A less grave form of intentional culpable homicide is defined in section 212. This is the intentional and unlawful killing of another person, when the incidents of ' murder ' as stated in section 211 are lacking. The punishmnent is penal servitude for life, or for a term of not less than five years. If several persons are concerned in the homicide, one may be guilty of murder, another of ' second-degree murder '; the distinction is made on the basis of section 50 (see General Part supra, para. 44) by ascertaining which of the offenders comply with the requirements justifying a charge of murder under sec~tion 211.
75. Some special cases of culpable homicide, require separate treatment:
Killing at the request of the victim. Section 216 defines this as a killing which ' the killer was induced to commit at the expressed and serious request of the victim '. It is classed as an offence of moderate gravity and is punishable by imprisonment for not less than three years; attempts under this head have now been expressly declared punishable. The simple consent of the person subsequently killed is. not sufficient (RGSt vol. 68. p. 307); the victim must in reality have persuaded the killer to commit the deed. If the latter had in any case made up his mind to do so, section 216 does not apply despite the express request of the deceased:; it then becomes a case of ' second degree murder ' (section 212). There is no ' request ' within the meaning of section 216 when the person making it is either insane or very young or for some other reason cannot be considered to possess the necessary power of judgment. Any bodily harm inflicted in the course of an attempt to kill on request is punishable (according to the decision RGSt vol. 28, p. 200).
76. Infanticide (section 217) too, is considered a less serious offence than '6murder'; the section covers the case of the intentional killing of an illegitimate child during or immediately after birth. A child is said to be illegitimate when the parents were not living in lawful wedlock either when the child was conceived or when it was 'born. If the mother erroneously believed the child to be illegitimate when it was in fact legitimate, section 59 applies (see General Part supra, para. 32), i.e., she is not punishable under sections 211 or 212; if, on the contrary, the mother believed the illegitimate child to have been born in lawful wedlock, she has committed homicide under sections 211 or 212 as the case may be. ' Immediately after birth ' means (to use the language of the English Infanticide Act, 1922) ' as long as the balance of the mother's mind is disturbed as the effect of giving birth to the child '. (RGSt vol. 2, p. 154.) Third parties who are accomplices in or accessories to infanticide cannot of course benefit by the extenuating circumstances which apply to the mother under section 217; they are...