This conception of law had to be expressed at this place before the defense begins with the presentation of evidence to safeguard the rights of the defendant.
In the case of General von Leyser it will be first of all the concern of the defense to prove considering the different counts of the indictment that General von Leyser in his official position as commanding general of an army corps of the German Army could have committed the crimes charged by the prosecution just as little as in performing the tasks which were put before him particularly as commanding general in the Croatian territory.
As I have already mentioned in the beginning, General von Leyser took over the XV Mountain Corps from General Lueters in the beginning of November 1943. The predecessor of General von Leyser, General Lueters, was originally commander of the German troops in Croatia and had as such besides tactical also territorial tasks and powers. After the conversion of his staff to the XV Mountain Corps, he did not have these territorial powers and tasks theoretically any more, it is true, but practically they continued to be in existence. They ceased to exist on principle and finally only with the taking over of the XV Mountain Corps by a new man, namely General von Leyser. In contrast to his predecessor, General von Leyser had only tactical problems; his staff was completely converted to a tactical operation staff.
In the course of the defense this will have to be cleared up through testimony and affidavits.
The task to which General von Leyser was put on taking over the XV Mountain Corps was unequivocally limited and clear. It was the occupation of the territory between Karlovac and the coast, occupied by the Italian armed forces until then, and the preparation of the defense against anticipated attacks from the sea. These great and exclusive aspects determined all other measures. The war on the guerillas and the safeguarding of the roads and railways in the Croatian territory had an exclusively tactical meaning for General von Leyser. His measures in the field of guerilla warfare were directed only to the safeguarding of the supply routes in the event of an anticipated attack from the sea.
Everything he did and ordered was subordinated to this tactical task.
It is not so as generally represented in the indictment that the measures of General von Leyser were "a part of a certain plan for terrorizing and intimidation" or were even taken "to decimate the native population of these territories for coming generations". They likewise were not "arbitrary" or "senseless", but were based upon military requirements and were thereby justified. This will be cleared up in detail in the course of the defense. These great aspects, however, should not be disregarded when individual actions and individual regulations are judged.
I now come to the various counts of the indictment against General von Leyser. Under Count I of the indictment he is also blamed for the terrorizing, torturing, and murdering of persons who arbitrarily were designated as "partisans, communists, persons suspected of communist tendencies, bandits and persons suspected of banditry" or who were taken as hostages. I can keep the argumentation of this count very brief. The evidence presented by the prosecution does not contain any proof in this field. The prosecution has presented no documents which would testify the execution of such measures of General von Leyser. Just as little has evidence been presented that General von Leyser had proclaimed, passed on, or executed an order to shoot hostages in the ratio of 1:10, 1:50 or even 1:100. On the contrary the defense will be able to prove alone by reason of the evidence presented by the prosecution that the shooting of hostages was never personally ordered by General von Leyser. If such shootings were carried out at all by the troops under his command, they were only done in extremely rare cases and also in a proportion according to martial law adapted to the military necessities.
There is likewise no evidence that information of the so-called national army had been extorted from the population by using terror measures. On these two counts the indictment remains only a statement, without any attempt at proof.
As far as General von Leyser is charged, with acts of the 21st SS Division Skanderberg, the defense will prove that this unit was hot subordinated to the disciplinary power of General von Leyser. He therefore was not responsible for the actions and omissions of this division. Disciplinary powers over this unit likewise did not belong to General von Leyser when in a particular, specific case a tactical subordination ensued.
In reference to Count II of the indictment, evidence will be shown that General von Leyser has never given or forwarded orders for the pillaging, destroying, and burning of localities. In reference to this allegation quite generally made by the prosecution, the indictment of General von Leyser lacked every proof. If troops under his command destroyed buildings, such acts were in no case arbitrarily directed against a peaceful civilian population, as alleged in the indictment. These destructive acts were rather a direct result of hostilities, because the guerillas preferred to use houses and localities as positions. It further happened that houses which evidently had been used by guerillas as protection and shelter during raids were destroyed immediately after these raids. This conformed entirely to martial law. If destructions on a bigger scale took place, it will be proven that these destructions were based on the tactical necessity of taking the supply bases and shelter possibilities from the guerillas. Only in this manner was it possible to end the raids on roads used for supplies, because it was impossible to even occupy the smallest locality due to the small size of occupation forces. The evidence on hand will show that the destroyed buildings had long been deserted by the peaceful civilian population and only served as shelter to the guerillas, who had already been fighting in these regions for years using the most brutal methods of terrorizing the civilian population.
The indictment under number 9 1 of Count II holds the commanding general of the XXI Mountain Corps responsible for the burning, robbing, and looting of the villages Dresnica, Pisac, Tuzovic, and Vojvodersa by troops of the 392nd Infantry Division.
The time given is January 1944 to March 1945. To this it may he first of all said that the 392nd Infantry Division was never under the commanding power of the XXI Mountain Corps. This division was only under the command of the XV mountain Corps, whose commander General von Leyser was only until the end of July 1944. Therefore General von Leyser can only then he held responsible for the destruction of these villages if the destruction took place within this period.
Furthermore the prosecution has only produced evidence in reference to the village of Dreznica. Through the documents presented in the indictment the defense will prove, that this destruction took place in the course of heavy fighting, lasting for days, against strong guerilla groups, in other words during actions of hostilities, and that after all only 20 guerilla shelters and not the entire village were destroyed; looting did not take place.
On count III the indictment holds all the defendants responsible for illegal commands, namely the commissar order, the commando order and commands of general nature against the capitualated Italian army.
In reference to the commissar order, the defense will prove through affidavits, that General von Leyser, during the Russian campaign as commander of the 269th Infantry Division, neither received nor dispatched the commissar order nor caused its execution. It shall not be disputed that he knew of this order. But the knowledge alone is not punishable. Beyond this it will be proved that General von Leyser rejected this order as violating the honor of the soldier. Furthermore every evidence for the indictment of General von Leyser is missing on this count, on the contrary the documents presented by the prosecution show that this order was not carried out in the Croatian territory while General von Leyser was in command.
The commando order from 18 October 1942 was not intended for the Eastern theater. The command of 30 July 1944, which extends said decree to the foreign military missions in the Southeast theater, was neither forwarded by General von Leyser nor carried out in his sphere of influence.
Likewise on this count of indictment every actual evidence for the indictment of General von Leyser is missing. In spite of it, the defense will carefully prove that Englishmen as well as Americans were taken prisoners and were treated as prisoners of war.
In reference to the orders and measures against the capitulated Italian armed forces the following may be said:
The capitulation of the Italian armed forces took place in the beginning of September 1943. General von Leyser took over the XVth mountain corps on 1 November 1943. The orders presented by the indictment had at that time already been proclaimed, the measures against the Italian armed forces had for the biggest part been taken. Even if measures against parts of the Italian armed forces should have been carried out in the first days after General von Leyser took over the command, the defense will be able to prove, that basically he was not in a position to have any influence on tho carrying out, by subordinates of orders proclaimed by higher authorities previous to his assumptio of command.
If the prosecution accuses General von Leyser in Count IV of "inhuman" evacuations, the defense will prove with regard to this that those were no inhumanities, but military measures dictated by tactical requirements.
As the defense will prove with regard to this, it would have been necessary from tactical reasons to evacuate civilians from areas which in case of an enemy landing at the coast might have become focal points of fighting or especially endangered zones for supply, in tho course of the actions which were to be foreseen. Such a measure corresponds to military habits and does not constitute an offense against the laws of war. For the basis of this assertion it is to be pointed to the fact that at the beginning of the war such evacuations were carried through by tho German commanders in the Reich territory as well as by the French government in France, and that the American government also considered it necessary to evacuate, at the beginning of the war against Japan, large parts of tho Japanese population from tho Western coast of America. It was neither the task of General von Leyser in his capacity as Commanding General of a tactical operational staff to decide on the further destiny of tho evacuated civilians, nor was he obliged to do this. He had nothing to do either with the civilians being committed to concentration camps, which was a purely police measure, or with tho employment of parts of the population as compulsory workers or even with the deportation to the Reich for labor.
Such measures would have been taken by the German authorities endowed with territorial powers, in agreement with the offices of the united Croatian State. Such measures could neither be ordered by General von Leyser nor had he exerted any influence on them, as will be proved in particular by testimony and affidavits.
As far as workers were employed for the army, for the construction of fortifications and pillboxes, it was done as the defence will prove on the basis of free mutual agreement. There were people enough volunteering for work in the United State of Croatia, who were happy to have a possibility of earning money and to at the same time supplied with food.
It will be necessary, in this connection, to deal in detail with the operation "Panther". This operation is set forth by the Prosecution in Count IV, paragraph 15 g. As far as an evacuation of the civilian population was intended here by General von Leyser, it was based on military and tactical requirements. Even the documents of the Prosecution prove that the territory in question had for years been a centre for the activity of bands, from which continuous and increasing disturbances of indispensible supply roads and railroads were undertaken. In order to secure the line of retreat for the attack to be expected from the sea-side, it was necessary to remove finally the risk of being endangered by bands in this area. An order to deport the population to the Reich, as alleged by the Prosecution, had not been given by General von Leyser, as such a measure exceeding the more tactical field was outside his jurisdiction. Evidence that the operation "Panther" was indeed carried through in the sense alleged by the Prosecution, was not produced by the Prosecution.
In order to refute the individual Counts of the Indictment, the Defense will prove that General von Leyser has done everything in his power to guarantee chivalrous warfare in accordance with the precepts of the laws of war, even in the confused and complicated conditions of guerilla-warfare in Croatia.
He strictly supervised the troops under his command by all possible means as to their conduct and proceeded with rigour against excesses and enroachments. In this endeavor to fulfil in every respect his obligation to supervise and care for the troops under his command, he always tried, as far as ever possible, to inform himself on the spot of the actual conditions and to come by personal observation to a rightful judgment on the situation.
The Defense will also prove that General von Leyser in every regard took into consideration the conditions of the civilian population as far as the fulfilment of his tasks allowed this. Moreover he always helped the civilian population to a large extent for reasons of humanity and he endeavoured to relieve the distress caused by the war, by their own and enemy action in land warfare and by air raids.
I will show you General von Leyser as an officer of the old school, bound to the old traditions of honesty and loyalty, who fulfilled his duty of a soldier and officer in the hardest combat of his nation, respecting the laws of war and the precepts of humanity.
JUDGE CARTER: Is counsel for the defendant Speidel ready to make his opening statement?
DR. WEISGERBER: Yes, your Honor.
Mr. President, your Honors, as defense counsel for the defendant Speidel I believe to be able to keep my plea very short.
I can refrain, at this point, from dealing with questions of international law about arrest and killing of hostages by way of reprisals; especially if and how far the Greek partisans gave cause to such reprisals. However this may be, even according to the evidence material so far submitted, considerable doubts have come up as to the question of warfare according to international law. Defense counsel Dr. Laternser has given sufficient evidence of this in his plea for his own client. This is equally valid for General Speidel and I do not therefore have to repeat it.
The prosecution charges my client with the following points:
1. The arrest and shooting of hostages by units under his command.
2. Wantom destruction without military necessity, and plunder by troops under his command.
3. Giving and passing on of so called Kommissar orders and Kommando orders, and giving of orders for the punishment of resisting Italians, as well as carrying out of such orders by troops under his command.
4. Forced deportation of the entire male population of whole villages within Greece for the purposes of forced labor to Germany.
I shall prove that the defendant Speidel can in none of these cases be held responsible: Especially, as he had no executive power. And if he was not in the position to give orders, he can naturally not be made responsible.
In none of these events he took part either.
(A) as perpetrator (B) or as aid, or abettor, nor did he give orders or approved of such.
Naturally, the defense of the defendant Speidel is considerably hampered by the fact that the prosecution has made no exact statement which of the individual cases that have come up, the defendant Speidel has been charged with.
Admittedly, it enumerates a number of happenings in the indictment but at the same time declares that this enumerations is not exhaustive.
Is the defendant Speidel supposed to make his own choice of the charges by the prosecution? This is a task which should be done by the Prosecution and the prosecution cannot be relieved in this by the defendant; or is Speidel being made responsible for everything that happened in the Greek theatres? Does the prosecution want to charge him even such events in which, according to the documents submitted, one executive army unit did not even participate? The lists which have boon added to the individual document books are, in this respect, not complete.
But, in order to give the defense the possibility to take up a definite attitude as to the charges of the prosecution, the prosecution should not only mark the documents which, among other matters, contain some material against my client; they should mention each case and in that way it refers to each individual defendant.
But this does not become evident either from the oral submission or the submission of lists added to the document books because almost each one of these documents contains in a varied succession, compiled according to entirely different points of view, a number of reports and facts which, according to these documents, would be put in a now order referring to each individual defendant.
The prosecution has charged the defendant Speidel with cases which without the slightest doubt are even outside his geographical territory of command and, therefore, are certainly not within his competence.
I refer only to English Document Book XVI, NOKW-674, Exhibit 381.
The connection between the Military Commander of Greece and the Second Panzer operating in Croatia and the evacuation of the islands at the Adriatic Coast is and remains incomprehensible.
All these obscurities are evidently based on a number of primary errors:
1. The prosecution misjudges the extent of the executive power of the defendant Speidel. I shall prove that it did not apply to the areas in which the mentioned events happened and, furthermore, that the emits which were carrying out these actions did not come under his command and, furthermore, that Speidel's competence did not extend in this direction at all.
2. The main reason for the prosecution's conclusion that the responsibility of the defendant was far reaching is the mere reason that he was in charge of "Maintenance of Peace and Order."
However, this task can, in a case of military commander, not apply to war areas and theatres. In those areas only the military authorities are the rulers. This basis rule is expressly stated at a number of points in the regulations about the command in the Southeastern area but Greece always was and remained a war theatre (fighting zone).
3. Speidel is mentioned as the holder of executive power. In this assumption the following has boon overlooked:
a) At no point the term "executive power' is properly explained by the prosecution.
b) It has furthermore been overlooked that, according to the degrees about the Southeastern Command and the regulations for the Military Commander Greece he, (the Military Commander Greece) only holds the executive power "if he has been entrusted with it." Not a single order has been submitted which describes the extent of this entrustment more explicitly.
c) It becomes, however, evident from the very nature of the matter that the military commander can in any case only be entrusted with the executive power in the areas under his administration.
This automatically excludes fighting areas and war theaters.
d) There are, furthermore, a number of orders which prove that the executive power of the defendant Speidel in the area remaining under his administration did not pertain to matters of the sphere under question here; I shall prove this to be so by aid of the documents through affidavits and witnesses.
c) The means at Speidel's disposal were in accordance with his subordiante comptence. I shall prove that the few military units under his control partly served an entirely different purpose and partly would not be any means have sufficed to carry out the executive power to the extent assumed by the prosecution. Thus apparently only his high sounding military title has led to a misinterpretation of the true extent of his competence. The truth of the matter is that this title was nothing but a conspicuous singboard advertising his representative position which, of necessity, had to deceive outsiders, inducing the Greek population, by lack of proper perspective about the true facts.
Only through this it can be explained that the witness Santos towards the end of his examination expressed the view: who else was supposed to see to it that the German troops behave and act according to international law if not the military commander? After all, he had the supreme position in Greece.
4. It would be a further basic error to charge the defendant Speidel with the responsibility for the actions reported by him or by others from the area under his command. The daily and monthly reports of the district and field commandanturas serve the purpose of informing the superior command of all events happening in the area to the possible degree. They do, therefore, not admit any conclusion as to the respon sibility of the reporting authority for any individual incident. Responsibility is only taken for the fact that the incident had actually happened.
This is especially valid for reports from the Ic area as the Ic task consists mainly in accummulating and passing on of nows for information of superior authorities. This I shall prove in detail.
In spite of this, I shall at this point try and outline my basic principles which I deem important for the exoneration of my client.
Regarding Count 1:
All these measures were taken during and in combat against armed bands within the war area.
By submission of documents and producing witnesses I shall prove that the defendant Speidel did not have a hand in this at any time during his term of office in Greece.
a.) As long as Speidel was Supremo Commander in Greece (12 October 1942- September 43) these tasks were dealt with by the Italians. At this time Speidel was only in command of a very small area at the Coast of Africa in which at that time no band activities had been reported.
b) During Speidel's activities as Military Commander Greece September 1943 - 15 May 1944 ) he had under his command not a single one of those units which were in charge of those areas from which any of the incidents have been reported.
We find the shooting of hostages under the caption, "Greece." The factual connection, however, only becomes evident if the military unit carrying out and responsible for the action is mentioned.
Only in a very few cases the prosecution documents mention merely the geographical term "Greece" without naming any military unit- but even here the context shows that another authority is in command which is not the defendant Speidel.
I shall prove conclusively that the higher SS and Police Leader did not even come under the Military Commander as far as police matters were concerned. Even here he came immediately under the Reichsfuehrer SS.
Regarding Count II:
What has been mentioned in connection with Count I is equally valid for Count II. As Speidel had nothing to do with combatting armed bands, he cannot be made responsible for the destruction mentioned in this connection. Apart from this, the prosecution has not in a single case submitted conclusive evidence for the destruction having been "wanton" and "without military necessity" or for Speidel having ordered or tolerated them. This the prosecution must still prove. It is not for the defendant to prove that the burned villages were destroyed "not wantonly" and "on account of military necessity." In almost all documents submitted by the prosecution itself, the statement keeps appearing that the burned villages had served a retreat for the bands and as ammunition dumps or that the inhabitants supplied the bands with information and food. Who, then, will call their destruction "wanton" or "not a military necessity?" Furthermore, in a variety of cases it must be assumed that the destruction was admissible according to international law as it was the immediate consequence of battle.
Court No. V, Case No. VII.
Regarding Count III.
a) I shall prove that Speidel never received the "Kommisar" order. This order applied exclusively to fighting units at the Eastern front; but Speidel never commanded any fighting units.
b) The same is valid for the "Kommando" order. There was no possible reason for sending such orders to Speidel. Neither as the Chief of the Luftwaffen mission (air force mission) in Rumania (October 1940 - May 1942) nor as Commanding Officer Southern Greece he participated in this program as he was excluded from field action.
c) Spedel had nothing to do either with the arrests and measures against the Italians. This also cames under the category, "Field action."
Regarding Count IV:
Here the defendant Speidel is charged with the following: murder, torture, terror, confinement in concentration camps, arbitrary forced labor for fortification, adduction of Greek civilian population for slave labor by troops under his command by his order.
The Prosecution, under letters "a-g", does not make mention of a single case which happened in Greece. I would, therefore, be justified to ask:
a) What individual cases is my client being charged with?
b) Which were the units that carried out these actions?
c) How far were these units under the command of the defendant Speidel?
The prosecution has not in any way made any exact statements regarding these questions, but only the following incidents can have been meant:
1) Concentration Camp Chaidari. This camp had been instituted by the Italians and later came under the police supervision of the higher SS and Police Leader who himself was responsible to the Reichfuehrer SS.
2) The Greer workers' transports:
I shall prove that there was a special authority in Greece dealing with allocation of labor acting independently and in no way responsible to Speidel. Furthermore, during his term of office, assignment of labor in Greece was on a voluntary basis.
3) Fortifications and military positions.
Speidel did not have to deal with such tasks as field action was not within his sphere of activities. It was solely the tasks of the combat unit. The assumption that Speidel supplied forced labor for such programs does not become evident anywhere.
4) No documents or other evidence have been submitted pertaining to torture and terror by troops under Speidel's command. Again this is a mere assumption.
I shall base my evidence on;
1) Hearing my client in the witness stand,
2) Examination of the co-defendants insofar as they will be put on the witness stand,
3) The submission of affidavits,
4) The testimony of witnesses, the number and names of which will be duly indicated to the High Tribunal, as soon as I can find out the details.
PRESIDING JUDGE CARTER: Is counsel for the defendant Rendulic prepared?
DR. FRITSCH (Counsel for defendant Rendulic): Your Honors, after this war for the first time in history soldiers and army officers are being brought before courts which are not composed of their own countrymen, but of members of the victor nations.
The defendants are not charged with violating their duties towards their own people but with violating general principles. These general principles have been compiled by the prosecution on the basis of Control Council Law No. 10 under the two conceptions, war crimes and crimes against humanity. This fact makes it highly necessary for the Defense to sift and to examine with extreme care the material submitted by the Prosecution.
In the main, the defendant General Rendulic is charged with two complexes in which he was active and by which he is supposed to have made himself punishable. The Balkans and Norway. Before going into details with regard to the charges against my client, I would like to point out the following which is a fundamental importance:
The judgment will have to deal in articular with the legal questions which are supposed to be valid as a basis for this trial and especially with these legal foundations wnich have been suparately set up for trials of this kind. The final plea will show in detail that Control Council Law No. 10 raised by the prosecution as the material foundation cannot in my opinion, fulfil this task. The principle of nullum crimen sine lege, nulla peona sine lege is generally recognised in all national legal provisions and the violation of this principle has already been determined in another trial before these military tribunals and has been described as particularly reprehensible.
Undoubtedly some of the provisions of Control Council Law No. 10 coincide with the facts constituting a crime laid down in the national penal codes and also in the German Reich penal code. Other facts set down in Control Council Law No. 10, such as the "killing of hostages" and participation therein do not observe this principle, so that application of this kind of facts constituting a crime is a violation of the legal principle quoted.
Above all, the acts of participation contained in Article II of Control Council Law No. 10 go far beyond the forms of participation contained in the German Reich Penal Code and also in the wording valid prior to 1933. In particular fact of "conspiracy" as an act of participation, as set down in Anglo-American conception as defined in Article II of the Control Council Law No. 10, finds no support in the more subtle standards of German penal legislation. The defense, therefore, at the appropriate time will regard it as a special task from the legal point of view to deal with these questions in detail and if necessary, to submit evidence.
I would also like to refer quite briefly to another question here.
The defendant General Rendulic was released from a prisoner of war camp in the United States of America and immediately placed on trial. The defense, in it's presentation of evidence, will be obliged to deal with the question of whether this trial before this military tribunal is at all in accordance with the international principles laid down in the Hague Land Warfare Convention and the Geneva Convention for Prisoners of War.
Your Honors, the highest duty of a soldier in the armies of all countries is obedience towards his superiors and to the Laws.
General Rendulic was a soldier cf the Austro-Hungarian monarchy; naturally, after the affiliation of Austria to Germany which was universally welcomed Dy the German people, he did not, and could not, refuse to perform his duty as a soldier,and continued to serve his Fatherland. There is no need to go into details about the fact that he always fulfilled his duty or a soldier and obeyed the orders of his superiors, as far as he could reconcile them with his own general ideas of humanity and the fundamentals of law.
But the defense will also prove that whenever General Rendulic recognized faults in orders from his senior officers, he always carried them out or passed them on in a suitably altered form.
And now, the Prosecution brings against this man the serious charges of having committed war crimes and crimes against humanity, charges which, in the opinion of the defense, are without sufficient substantiation.
As an introduction to its charges, the Prosecution stated in it's opening Statement that the defendant Rendulic ranked as a "Nazi-General". The mere fact that the defendant was a member of the NSDAP in Austria from May 1932 until the dissolution of the party in 1933, that is, one year and a quarter, cannot justify this description. The defense will prove that the reasons which caused him to join the party were of an entirely idealistic nature and that from inside Austria the defendant could no more envisage the development of the NSDAP than could the rest of the world.
The defense will also prove that, when later on, army officers were allowed to join the party, the defendant refused to become a member of the NSDAP.
If perhaps the Prosecution meant by their comment the conferring of the Golden Badge of Honor on the defendant by Hitler in September 1944, then the defense will show that this "Golden Badge of Honor" was at that time a decoration which did not of necessity have anything to do with belonging to the party and furthermore, the bestowal in the case in question had a purely military origin, because of the situation brought about by the Russian propaganda in Norway.
If the Prosecution chose this term to cause the rise of the defendant during the war from Colonel to General to appear in a special light, then the defense will also submit evidence to show that there can be no question at all of a "Phenomenal promotion"; on the contrary, the promotion was quite a normal one and was exclusively the result of the military capabilities and experiences of the soldier Rendulic and his successes in the Russian theatre of war.
I now turn to the two general charges, which can be dealt with under the terms "Commisar Order and Commando Order".
1. The Commissar Order.
According to the evidence submitted by the Prosecution, there seems to be no dispute about the fact that the so-called Commissar Order was, according to regulation, sent in writing only to the Armies and from there downwards to the lower-rank officers, that is, to the Corps and the Divisions. It had to be passed on orally. If necessary, I will produce the requisite proof for this fact and will also prove that the defendant who, when this order was issued, commanded an Infantry Division in Russia, neither passed on this order personally nor ordered it to be brought to the notice of the regimental commanders.
I will also prove that within the sphere of his division not one commissar was ever shot.
2. The Commando Order.
Here the defense will merely point out that the Prosecution has not proved that the defendant Rendulic received knowledge of this order in the Russian theatre of war, (for which it was not valid) and that he executed it or passed it on within the meaning of the charge. It is not the business of the defense to produce the negative proof of ignorance. Negativa non sunt probanda.