We will take up other testimony now, unless counsel wants to have some cross examination at this time.
DR. KOESSL: I will try to be in a position to continue the cross examination tomorrow, that is to receive the transcript tonight. At any rate, I will be ready to do so the day after tommorrow.
MR. WOOLEYHAN: May we ask that the witness be excused?
THE PRESIDENT: I suggest that the witness be excused until the day after tomorrow morning, at 9;30, hoping that the matter will proceed so that the examination, the cross examination may be taken up at that time.
MR. WOOLEYHAN: Mr. Secretary, might I inquire if the bench has Book 3-H?
THE SECRETARY: Yes.
MR. WOOLEYHAN: Turning to Document NG-594 which is the second, document in Book 3-H-
THE PRESIDENT: What exhibit number does the prosecution attach to that?
MR. WOOLEYHAN: It will be Exhibit 194 when offered, your Honor.
JUDGE BRAND: May I ask about that? Wasn't the film to be marked 194?
MR. WOOLEYHAN: The film was 192, your Honor.
JUDGE BRAND: Thank you very much.
MR. WOOLEYHAN: This document was read, described and discussed in session last week. Contrary to -
THE PRESIDENT: Let's be sure we have this straightened out as to the exhibit number. Whet is Exhibit Number 193 according to your records?
MR. WOOLEYHAN: That was the Jacobi affidavit, Document NG-1020, describing the film.
JUDGE BRAND: My notes show that Exhibit 192 was a note by Joel, NG-594.
MR. WOOLEYHAN: That was withdraw, your Honor, and was not introduced. I an about to discuss it at this time. The lineup of the documents now is -- Exhibit 192 was the film introduced Saturday. Exhibit 193 is the Jacobi affidavit, NG-1020.
THE PRESIDENT: Of course it makes very little difference, just so we all have the same record.
MR. WOOLEYHAN: That's the point.
THE PRESIDENT: As a natter of fact, the Jacobi affidavit was introduced before the film, but that doesn't make any difference, as you suggest.
MR. WOOLEYHAN: The prosecution now comes to what when offered will be Exhibit 194.
That is NG-594, the second document in Book 3-H. This document was read and discussed in court last week, but in view of the objection by defense counsel for the defendant Joel, it was withdrawn and at the Court's suggestion defense counsel and prosecution came to an agreement outside of court. We offer this document at this time without any reference to the defendant Joel, and submit that any reference which we did make on the previous day be stricken from the record.
DR. WANDSCHNEIDER (Counsel for defendant Rothenberger): Mr. President, concerning this exhibit NG-594 I had already spoken briefly the other day and just now statement was made by the prosecutor that this document would be submitted without reference to the person of the defendant Dr. Joel. I had protested against the probative value of this document with reference to the defendant Dr. Rothenberger, and I should like to maintain this protest today because from the document it can be seen that it had not been initialled by Dr. Rothenberger nor had it come to his attention in any other way, and therefore it has no probative value as far as he is concerned.
MR. WOOLEYHAN: May it please the Court, in reference to the objection just made by defense counsel, as will be seen from the photostat of the original document, it is apparent to the prosecution, at least, that this is obviously a copy. The original we do not have. The last paragraph of this letter is numbered 3, and reads as follows: "State Secretary Dr. Rothenberger with the request to note according to instructions", and then handwritten, "see the Minister's letter."
It is the prosecution's contention that the original was sent to Rothenberger and therefore he could not have initialled this copy which we submit.
THE PRESIDENT: Another point that was raised was that the initial was not the initial of Joel, and raised the question of whether expert testimony would be offered.
MR. WOOLEYHAN: On that point, Your Honor, defense counsel for Joel and the prosecution agreed by oral stipulation out of court after we had an expert in to look at it, that it was not the initial of Joel, and we submit it without any reference to that.
THE PRESIDENT: That being true, I wonder whether Dr. Wandschneider has any further objections to this exhibit?
DR. WANDSCHNEIDER: May it please the Tribunal, I of course, want to maintain my objection because it is absolutely not sure who wrote this letter and the Prosecution assumed that it may be initiated; that is an assumption which is not justified by any evidence and, since, therefore, any authentical or corroborating reference of this document to the personality of Dr. Rothenberger is absolutely missing, In my opinion, my objection therefore is justified.
MR. WOOLEYHAN: The Prosecution on that rests on its previous argument, plus the photostat of the original document on its face.
May I call the Tribunal's attention to the fact that there is a striking similarity between the objection for the Counsel for the defendant Rothenberger and similar objection had some days ago, when the Bench asked me if it was not the case that we had captured this document in the Ministry files from which the originals had been sent to the adversaries. We submit that this is a parallel example.
THE PRESIDENT: Is it the claim of the Prosecution that you have enough papers here to make it probable that this had come to the notice of Dr. Rothenberger?
MR. WOOLEYHAN: It is the prosecution's contention, Your Honor, that it appears on the face of this document that the original thereof was not only seen by the defendant Rothenberger but was addressed and sent to him.
THE PRESIDENT: This document has been read by the Prosecution?
MR. WOOLEYHAN: Yes.
THE PRESIDENT: It is now offered in evidence; is that right?
MR. WOOLEYHAN: Yes.
THE PRESIDENT: Under the rules, we will receive the document in evidence.
MR. WOOLEYHAN: As Prosecution's Exhibit 194.
We will turn now the document bock 3H, namely, NG 459, which is found on page 49 of the German book, This document begins with an indictment; originated in the Office of the Senior Public Prosecutor, Chief of the Prosecution at the Special Court of the Supreme Court of Stuttgart. Dated, Stuttgart, 24 February 1944. It is addressed to the Chairman of the Court of Appeal, Stuttgart.
" Indictment against Karl Schramm."
Skipping to the third paragraph:
" As a confirmed swindler this time as a parasite of society, and a habitual criminal of all offenses, he again committed fraud and attempted to commit fraud, and is doing so always pretended without authorization to be a member of the German Armed Forces.
" Facts" " The accused who served a sentence of imprisonment of 2 years, 8 months up to the 3rd of November 1942, on account of a repeated offense of fraud, and afterwards was a member of the German Armed Forces from 4 February 1943 to 10 May 1943, after his dismissal from the Army called on dependents of soldiers, and pretended that he had brought messages from their soldier relatives.
In this way he hoped to place the persons on whom he called under an obligation and to receive presents, especially food, from them."
Thereafter follows enumeration of these visits which the accused made, of which we will read two of three byway of illustration:
"1) On 20 May 1943, he called on a soldier's wife, Rosa Stetzl at Hermaringen, District of Heidenheim, whose husband at that time was stationed in the military training ground Heuberg. He introduced himself with his own name as a corporal, and pretended to be a comrade of her husband's at present of leave Ccurt 111 He said her husband had sent him to fetch food parcel for him.
She believed his lies and gave him a parcel with 6 lbs of smoked meat, 8 to 10 eggs, 20 cigarettes, and a letter, furthermore for his trouble, supper and 5 eggs. As he had intended, he kept the contents of the parcel for himself".
If I may interpolate for a moment, thereafter follows some ten mere instances of practically the same type of which I have just read, in which the accused called on the relatives of soldiers who were away and defrauded them of various amounts of food for his own consumption.
Skipping to page 5 of this document, which is page 52 of the German:
"main results of the investigation.
"The accused has admitted to having called on and told lies to relatives of soldiers in order to get food. Regarding his denial of particulars of his fraudulent behavior, he has been convicted by the statements of the above named witnesses, which appear credible. He consumed the food, which he obtained under false pretences himself or handed it over to his mother, who used it in the household, pretending he had obtained them by honest means."
Skipping to the next page.
"The accused is the son of the late mason Karl Schramm of Oherkochen end his wife Josefino, nee Gold, now married for the second time. After attending an elementary school, he was apprenticed to a master Mason. He alleges that he dis continued the apprenticeship on account of illness and from then on, whenever he had any job at all, he worked as a casual laborer and odd-job man.
Skipping down to the next paragraph:
"Between 1928 - 1940 his record shows 8 previous convictions. Apart from minor fines for theft, damage to property, begging and insulting a civil servant, there are 4 convictions for fraud."
Skipping now back to the first page of this indictment, we see that there appears a penciled notation near the top of the page on the right hand side. Upon consulting the original document with the same penciled notation, in fact appears and states the following: "Sentenced to death 15 March 1944".
At this point, we wish to invite the Court's attention to the fact that by his own affidavit the defendant Cuhorst was presiding judge at the Stuttgart Special Court on that date.
The Prosecution offers as Exhibit 195. Document 456.
DR. DOETZER: May it please the Tribunal, I object to this penciled note, "Sentenced to death 15 March 1944". This was not written by the defendant Cuhorst. That penciled note, therefore, as I have said, it was not written by Cuhorst nor is it signed by Cuhorst. The handwriting was a different one.
MR. WOOLEYHAN: May the Court please, I am sure that defense counsel and I will be in complete agreement once I make a rather obvious explanation. The prosecution does not intend that the writing on this indictment which states that the defendant therein was sentenced to death at such and such a date was the writing of the defendant Cuhorst. We do not say it is. We do not say who that writing was put on thereby. We merely called the Court's attention to that writing to show, by the best evidence available appearing on the document itself, what disposition was made of the case represented by the indictment just read, since the indictment was all the documentary evidence we were able to secure on the case.
THE PRESIDENT: In what manner do you connect the defendant Cuhorst with it?
MR. WOOLEYHAN: This indictment was presented to the Stuttgart Special Court during a time when the defendant Cuhorst presided thereover, and the death sentence was pronounced still within that same time.
THE PRESIDENT: That seems to answer the question.
MR. WOOLEYHAN: We again offer that document as Exhibit 195.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: Turning now to the next document in the same book, which is found on Page 56 of the German book, NG-689. This single page document bears the printed letterhead and insignia of the NSDAP.
"Deputy of the Fuehrer, Staff Leader of the NSDAP." Dated: Munich, Brown house, At present: Berlin, 8 January 1940.
"Circular.
"The Special Court in Koenigsberg has sentenced the married woman Martha Sattler of Wirtberg, Kreis Insterburg to 10 years' penitentiary and to the loss of civil rights for 10 years, because she had sexual relations with a Polish prisoner of war. She was sentenced on the basis of Article 4 of the Decree providing Supplementary Penal Law for the Protection of the Defensive Strength of the German People of 25 November 1939."-
If I may interopolate, this is the same status of that found on Page 17 of Document Book 2.
"This article provides that persons who associate with prisoners of war are to be sentenced to imprisonment, and in severe cases to penitentiary, if these relations are of such a nature that they injure gravely the sound sentiment of the people.
"In accordance with the Fuehrer's instructions, the sentence was printed in the entire press as an urgent warning.
"Heil Hitler.
(Signed) Bormann.
The prosecution offers this document as Exhibit No. 196, and is so doing, it invites the Court's attention, merely by way of reference, back to the Lopata case. I can't give you the exhibit number any more. That was introduced into evidence last Friday. I can't give you the exhibit number at this time, but the name of the case was "Lopata." We now offer this NG-689 as Exhibit 196.
THE PRESIDENT: It will be received in evidence.
DR. KOESSL: Counsel for the defendant Rothaug. May it please the Tribunal, the point of comparison between the sentence against this woman and the sentence against Lopata is absolutely incomprehensible to me. Lopata was sentenced for violence and for resistance, and this woman, for reasons of sexual relations. This comparison is quite incomprehensible to me, and therefore I ask that this reference be stricken from the record unless the prosecution is in a position to give more elaborate reasons for this reference.
MR. WOOLEYHAN: It is offered not as a comparison but as a contrast, Your Honor.
THE PRESIDENT: I suppose, after all, the comment was more a matter of argument than a matter of evidence, so it has done no harm.
MR. WOOLEYHAN: Turning now to the next document, which likewise is a single page. It's found on Page 57 of the German. In the original, 632-PS appears to be a printed announcement in very large type, headed: "The Reich Minister of Justice, Fuehrer Information." Dated: 1942 No. 66.
DR. KUBOSCHOK: I protest against the use of this document. The photostat indicates clearly that this is not a signed document. Quite apparently, it is a draft which was never signed. The probative value of a draft which was drawn up by an anonymous person, whose identity can not be proved, is nil. Therefore, I ask that this document be withdrawn.
MR. WOOLEYHAN: I welcome Dr. Kuboschok's objection to this document because in answer thereto, I may be permitted to briefly describe just what these Fuehrer Informations are. In the first place, this is no draft, as is obvious from the photostat of the original. It is a carefully printed announcement in large type, in a somewhat formal manner. Dr. Kuboschok is right, of course, when he says that there is no signature on this document, but it is far from anonymous.
It bears the date: "Berlin, 3 July 1942," and underneath that is the statement: "Entrusted with the direction." "Entrusted with the direction of what?" might be asked. The answer to that is the letterhead, which is the Reich Minister of Justice.
As we know from previous correspondence, personally signed by the defendant Schlegelberger during his period of Acting Minister which was in fact included in this date of July 1942, he customarily signed his name as being entrusted with the direction; furthermore, this being not the first impression or original but only a copy, it is to be presumed that the original and only signed copy was sent to the addressee, namely Hitler; and the prosecution submits that the original was submitted to Hitler and that it was signed by Schlegelberger.
DR. KUBOSCHOK: If the document at any time had been signed by Schlegelberger, then of course even on the copies, by typewriter, the name of Dr. Schlegelberger - the signature of Dr. Schlegelberger would have been repeated. That is the custom in every office, and the Ministry of Justice did not make any exception as far as the management of their offices were concerned. I agree with the prosecutor that the remark: "entrusted with affairs" referred definitely to the Under-Secretary Schlegelberger, who at that time was entrusted with the affairs of the Ministry. I only maintain that from the fact that this photostat was made either from an original or from a copy, we don't know that - the fact that the name is not mentioned, only the one conclusion can be drawn, that we are confronted here with a draft prepared by some assistant. It goes without saying that Schlegelberger were presented many drafts which he has not signed. Many drafts may have been made which the man who did draw them up may have withdrawn later, and which were never submitted to Schlegelberger; but as long as we have no reference whatever to the author, not even to the author of this draft, we can not draw any conclusions from this photostat , nor any probative value as far as the intentions of the author are concerned.
THE PRESIDENT: I see the expression: "The Reich Minister of Justice." Is that the letterhead?
MR. WOOLEYHAN: That appears in the upper left-hand margin as the letterhead.
DR. KUBOSCHOK: On a stationary of that kind, of course all drafts had been made which any one of the miner assistants may have drawn up, but there is no proof whatever for the fact that a draft of this kind was actually submitted, and even less for the fact that it may have been approved or signed.
MR. WOOLEYHAN: May the Court please, do not let my statement of the word "letterhead" deceive you. This is a form, but this, we submit, is no draft. I don't believe drafts ever appeared carefully printed -- not typed -- but printed in large language comparable to that found on posters or formal announcements.
JUDGE BRAND: Can we see the exhibit?
DR. KUBUSCHOK: I must make a statement in that connection. I may help to clarify this. The large type, of course, is remarkable but that can be explained in the following way. All correspondence with Hitler had to be written with a specially manufactured typewriter. That was a requirement expressly stated because Hitler was astigmatic but, for reasons of vanity, did not want to wear glasses and therefore could be sent only very large writing and typing. Therefore, if anyone of his assistants made a draft to be submitted to Hitler, even when the draft was drawn up it had to be typed on a typewriter of that kind.
THE PRESIDENT: All that Dr. Kubuschok has said is possible but it is probable that this is an authentic document, being found among the documents that were captured and it is therefore received in evidence.
At this time we shall adjourn until tomorrow morning.
MR. WOOLEYHAN: The Court will note that it is Exhibit Number 196.
THE PRESIDENT: 197.
MR. WOOLEYHAN: 197, I beg your pardon.
THE MARSHAL: This Tribunal is recessed until 0930 hours tomorrow morning.
(The Tribunal recessed at 1635 hours, 1 April 1947, until 0930 hours, 2 April 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against-Joseph Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 2 April 1947, 0930-1630, Justice Carrington T. Marshall, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: The Marshal will ascertain if all the defendants are present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: The proper notation will be made.
MR. LA FOLLETTE: May it please Your Honors, I would like to start with Document 590, found on page 16 of the Document Dock 3-H; that is page 58 of the German. That is a --(To the Interpreter) Would you test the English for me a minute? (Interpreter tests sound track).
This is the document signed by Dr. Mettgenberg in Berlin, first of April 1939: "By the President of the Court of Appeal and the General Public Prosecutor, to the President of the District Court and the Chief Public Prosecutor in Hamburg. RE: Criminal Case against the former physician, Israel Leopold for race defilement."
"In the indictment of 17 October 1938 as well as in the verdict of 14 December 1938, Leopold's profession is given as a physician although his patent had expired on 30 September 1938 pursuant to article 1 of the 4th ordinance of the Reich citizenship law of 25 July 1938 (Reich Legal Gazette I, page 969). This also applies to the report of the Chief Public Prosecutor to the Reich Minister of the Interior of 6 February 1939."
I skip to the last paragraph ....
"I ask you kindly to do the necessary, and especially to take care that in criminal cases against Jews which were filed previous to 1 January 1939 the names given are rectified, as far as this has not already been done. By order: (Signed): Dr. Mettgenberg."
I offer in evidence Exhibit 198.
THE PRESIDENT: I didn't get the number ...
It will be received in evidence.
MR. LA FOLLETTE: I next turn to Document NG 144, found on page 13 of the English Book and it is found on pages 59-65 of the German Book. I read first from page 18, but it is in the beginning page 59 in the German Book. I believe I am permitted to call the attention of the Court that the document following this, which is on page 23 of the English Book, page 66-69 of the German Book, deals with the same subject matter and bears apparently the same file number -- or reference number: RK5850-B.
"Berlin, 17 April 1941. To: The Reich Minister and Chief of the Reich Chancellery. Subject: Penal Laws for Poles and Jews in the extended Eastern territories."
"I started from the standpoint that special conditions in the annexed Eastern territories also require special measures for the administration of the penal laws against Poles and Jews. As soon as the decree issued on 5 September 1939 by the Supreme Commander of the Army had introduced the special court in the Eastern territories, I tried to make those courts, with their particularly prompt and energetic procedure, centers for combatting all Polish and Jewish crime. That I succeeded is shown by the very impressive numbers of cases dealt with by the special courts during the first ten months of their activity in the Eastern territories. The special court in Bromberg, for instance, has sentenced 201 defendants to death, 11 to penal servitude for life, and 93 to terms of penal servitude amounting to 912 years in all, thus averaging 10 years' penal servitude for each individual."
I call attention to the fact that on page 22, the Court will find that this document is signed by the defendant Dr. Schlegelberger. I turn now to page 19 of the English Book which is page 60 of the German Book, and read at the top of the page of the English Book:
"The aim of creating special legislation for Poles and Jews of the Eastern territories was systematically pursued by the decree of 6 June 1940, which formally introduced the German penal law which had been applied in the Eastern territories from the beginning. In the sphere of the code of criminal procedure, compulsory prosecution no longer exists; the public prosecutor rather prosecutes only such acts which he thinks it necessary to punish in the public interest. The procedure of compulsory prosecution (articles 172 ssq. of the Code of Criminal Procedure) was rescinded, as it seems intolerable that Poles and Jews should in this way compel the German prosecutor to issue an indictment. Poles and Jews were also prohibited from raising private actions and accessory actions."
I now go to the bottom of page 19 of the English Book which, I believe, will be found on page 61 of the German Book. I begin where it says: On being informed of the Fuehrer's intention to discriminate in the sphere of penal law between the Poles (and probably the Jews as well), and the Germans, I prepared , after preliminary discussions with the presidents of the courts of appeal and the attorneygenerals of the annexed Eastern territories, the attached draft concerning the administration of the penal laws against Poles and Jews in the annexed Eastern territories and in the territory of the former Free City of Danzig.
This draft amounts to special legislation both in the sphere of actual law and in that of criminal procedure. In this connection, the suggestions made by the Fuehrer's deputy had been taken into consideration to a great extent.
I turn now to page 20, at the top of the page, which is either at the bottom of page 61 of the German Book or at the top of page 62.
It begins:
"No. 1, paragraph 3, contains a statement of facts in general terms, through which penal proceedings can be taken in future against any Pole or Jew belonging to the Eastern territories who is guilty of punishable activities directed against the German race and which allows for every kind of punishment."
On the same page of the English -- and I think of the same page of the German -- I go down about twelve lines or fifteen, in the English to a sentence beginning as follows:
"Furthermore, the ordinance admits of a wider application of the law in a manner appropriate to the requirements of the Eastern territories. (Article 2, penal code)."
"So far I have been in agreement with the opinion held by the Fuehrer's deputy on the fact that a Pole is less sensitive to the imposition of an ordinary prison sentence. Therefore, I had taken administrative measures to ensure that Poles and Jews be separated from other prisoners and that their imprisonment be rendered more severe. No. 3 goes still further and substitutes for the terms of imprisonment and hard labor prescribed by Reich law other prison sentences of a new kind, viz the prison camp and the more rigorous prison camp."
I now go to the second paragraph from the bottom of Page 21 of the English Book which should be found very close to the top of Page 64 of the German Book.
"No. XIII makes the factual special legislation against Poles and Jews and the elimination of compulsory prosecution apply also in cases where the Polish or Jewish criminal does in fact reside in the Eastern territories, but the crime has been committed in another part of Greater Germany."
I now turn to the top of Page 22 in the English Book which is still found on Page 64 of the German. I believe it is the last part of a long paragraph.
It begins "In the sphere of criminal procedure, the draft shows clearly the difference in the political status of Germans on the one side and Poles and Jews on the other.
"The introduction of corporal punishment, as discussed by the Fuehrer's deputy, has not been included in the draft, either as a criminal sentence or a disciplinary measure. I cannot agree to this form of punishment, as in my judgment it would not correspond to the level of civilisation of the German people.
"Criminal proceedings based on this draft will accordingly be characterized by the greatest possible speed, together with immediate execution of the sentence and will therefore in no way be inferior to summary court proceedings. The possibility of applying the most severe penalties in every appropriate case will enable the penal law administration to cooperate energetically in the realization of the Fuehrer's political aims in the Eastern territories.
"In charge of the office.
"Signature, Schlegelberger."
I offer to introduce in evidence prosecution Exhibit Number 199, Document NG-144.
THE PRESIDENT: It will be received in evidence.
MR. LaFOLLETTER: On Page 23 of the English Book, Pages 66 to 69 in the German Book, is found NG-130. As I previously observed, this bears the same file mark as the document which has just been introduced.