Mr. Runyon to Mr. Gresham.
Berlin, April 11, 1895. (Received April 27.)
Sir: In accordance with the direction of your instruction (No. 231) of February 26 last, I have made inquiry whether the statute of limitation was raised or passed upon at the trial of August Junge, and whether anything could be accomplished by now raising the point in behalf of the defendant, and I have the honor to report that I am credibly informed that that defense was not presented at the trial. It further appears that while in such cases as that of Mr. Junge (trial for desertion) the accused is permitted to defend himself, he is not allowed to have counsel for his defense. The limitation in the prosecution of the offense of desertion (Fahnenflucht) in such a case as that of Mr. Junge is five years, and the period of limitation begins from the time at which the deserted would have finished his term of military service had the offense not been committed, but the law provides that any action in the case on account of the offense committed taken by the judge against the absent defendant interrupts the running of the statute (Preussische Gesetz-Sammlung, vol. 5, pp. 29, 68): “Jede Handlung des Richters, welche wegen der begangenen That gegen den Thäter gerichtet ist, unterbricht die Verjahrung.”
Whether such dealing (Handlung) with the case by the judge took place in the present instance I do not know. It is said, however, that the practice is to keep such claims alive—to prevent the barring by the statute—by some judicial act from time to time, looking to the punishment of the alleged offender. I may add that I do not see how it could be of any advantage to the accused in this case to raise the question of limitation diplomatically, he having had an opportunity of defending himself on the ground of limitation (if it existed) on his trial.
I have, etc.,