ROTHAUG was very domineering as a Presiding Judge. He demanded that the other judges of the Special Court accept his ideas. Collaboration with him therefore was difficult. Such collaboration was made even mere difficult by the fact that ROTHAUG strengthened his position as Presiding Judge of the Special Court by making closer and closer contacts with Party members and the Gau Leadership as well as with SD (Security Service). He t* gained a more and more powerful position , also within the administration of justice, which extended even to the Ministry of Justice. In the Nuremberg justice administration, the Presiding Judge of the Court of Appeal and the General Public Prosecutor could try to influence Dr. ROTHAUG, but they were not to succeed in this. As an example, I mention the case of GRASSER."
MR. WOOLEYHAN: If I may interpolate for a moment. We wish to invite t Court's attention, to the fact that the case of Grosser was introduced into evidence yesterday as Exhibit No. 139. Resuming the affidavit: "I "Proceedings had been opened against GRASSER, for having committed a malicious political attack on State and Party, and a report had been sent Ministry of Justice.
The Senior Reich Prosecutor at the People's Court returned the documents, with a statement that the deed did not constitute an act of seditious undermining of German defensive strength. GRASSER was therefore indicted under Paragraph 2 of the Law against malicious attacks on Stat and Party. When ROTHAUG brought the case to trial, he insisted however, that Paragraph 4 of the Law against "public enemies", Again, may I interpolate for a moment.
This law against public enemies is the same law that was brought to the attention of the Tribunal yesterday. It is to be found on page 19 of Document Book 2.
"and the decree against seditious undermining of German Defense Strength had to be applied. He wanted sentence Grasser to death by means of these decrees. In the absence of the General Public Prosecutor, Dr. LEMS, I got if touch with the Ministry on the phone. Instructions were given not to demand the death penalty. I informed the Public Prosecutor in Nuernberg of the c*** of this instruction, but was informed that Dr. ROTHAUG wanted to condemn GROSSER to death, even if the public Prosecutor should make another demand for punishment.
I telephoned again to the Ministry of Justice and informed them of ROTHAUG's determination. The Ministry functionary, whose name I do not recall, declared that I should inform the Presiding Judge of the Court of Appeal of this fact. The Presiding Judge of the Court of Appeal should talk to ROTHAUG. Only if Dr. ROTHAUG should persist in his opinion, the Public Prosecutor could be told that he could ask for the death penalty, in order to avoid a divergence between the prosecutor's demand for punishment and the verdict. The Presiding Judge of the Court of Appeal, DOEBIG, been informed of this matter. I notified him of the telephone conversation. It also was known that the assistant judges were not of ROTHAUG's opinion if the GASSER case."
"The Presiding Judge of the Court of Appeal, DOEBIG, went into the conference room and tried to dissuade ROTHAUG. He was unsuccessful. I therefore informed the Public Prosecutor in accordance with my instructions that he could now demand the death penalty. The fact that orders were later given to carry cut GRASSER's death sentence proves that even the Ministry of Justice yielded to ROTHAUG's wishes.
I know from my own experience that Dr. BEMS repeatedly tried to influence Dr. ROTHAUG to be milder. These attempts, too, were with success. Dr. BEMS told me that once he had argued vehemently with ROTHAUG in the corridor of the Court House. I no longer recall what this was about.
"These statements show that ROTHAUG, who would not tolerate any interference from the part of the justice administration and even rejecting such interference in strong terms, listened even less to the objections of judges. ROTHAUG often insulted judges when they tried to make their different opinions to be heard. In addition ROTHAUG due to his numerous ** tions, contacts with Party authorities and the SD apparently had sources of information to which judges had no access. Therefore his arguments often could not be refuted. This, too, ROTHAUG used to enforce his will. Because of ROTHAUG's dictatorial position, every judge, who had a serious argument or even came to an open breach with ROTHAUG, had to reckon with the fact that his professional, factual or human objections would be interpreted as a lack of political principles and would have the appropriate consequences.
One could not find support from the justice administration for the abovementioned reasons. The local justice administration was too weak, because it was certain not to find the support necessary to oppose ROTHAUG's powerful position."
"ROTHAUG's position embraced not only the Court, but extended into the sphere of the Public Prosecutor's office as well. Hardly any public prosecutor dared to oppose ROTHAUG. His sphere of influence extended to the Public prosecutor's office, with the result that he therefore decisively determined the public prosecutor's demand for punishment. In an individual case it was as follows: ROTHAUG would discuss the prosecution's demand with the public prosecutor who would prevent it at the trial. Such was the procedure at the time when the Ministry of Justice had already ordered the so-called "guidance of jurisdiction.
"After this "Guidance" of jurisdiction had been introduced, ROTHAUG refused to attend "Guidance" conferences cf the verdict giving as his reason that nobody had to "guide" him."
Skipping to the next paragraph.
"Especially in two particularly crass cases he imposed his will on the court and caused these cases to take an unwarranted turn. These were the cases of GRASSER and KATZENBERGER, in which he was interested in achieving the "extermination" of the defendants as he used to put it. The GRASSER case in which competent authorities had already proclaimed that the defendant was not guilty of undermining German defensive strength, has already been mentioned above. The worst case was that of KATZENBERGER which caused a sensation only within the justice administration, but also preoccupied the public at large. The case had already been brought up before the Criminal Divisional Court. ROTHAUG got hold of the case because he wanted, at all costs, to obtain a death sentence against a Jew. ROTHAUG was a decided anti-Semite. order to have KATZENBERGER sentenced in any case and in order to put the witness SEILER under pressure, she was arrested and involved in a perjury trial that coincided with the trial of KATZENBERGER.
The ascertained facts of the case had to be twisted in order to make possible the application of Paragraph 4 of the Law against Public Enemies" and to make the case appear as an especially grave one. Rothaug succeeded a having the Public Prosecutor ask for the death penalty. The trial was given great publicity, Party authorities were also present. The Ministry of Justice did not consider the verdict correct. I know this from a remark made to me by under state secretary Freisler. A few days after the trial the Ministry of Justice rang up and ordered that the documents relating to the Katzenberger case had to be in Berlin at 9 o'clock the following morning. Since Dr. Bems was not available I went to Berlin as his deputy the same night, and arrived at the Ministry of Justice at 9 o'clock. At the same time the Senior Public Prosecutor of Oldenburg was called to Berlin in connection with a case which later became the subject of a Reichstag speech. It was obvious that Freisler only conferred briefly with me in this case. He questioned very briefly regarding the motives in support of the judgment and wanted to knew what I thought of the verdict. I told him that I could not agree with the legal justification of the sentence. He replied that he was of the same opinion. I then was immediately dismissed. Freisler's remark made me believe very firmly that Katzenberger's sentence would be commuted. Lit was therefore a great surprise to me when the execution of the sentence was ordered and I presume that the Minister of Justice could not prevail against other instances. My opinion was strengthen when Dr. Ferber once told me that Freisler also made a remark to him suggest ing that he did not agree with the verdict. Apart from Rothaug nobody in Nuernberg would have thought of sentencing Katzenberger to death on the basis of the available evidence."
MR WOOLEYHAN: Skipping to the signature I read as follows: "These statements are the whole truth and were made without any coercion. I read them, signed and declared under oath. Nurnberg, 18 January 1947." Signed: "Dr. Georg Engert." The prosecution offers Exhibit 156, NG-649. We would like to inquire at this time whether the Tribunal and defense counsel have Document NG-562 which likewise was distributed separately.
THE PRESIDENT: I don't think we had ruled on this last exhibit. It will be admitted in evidence.
MR. WOOLEYHAN: I beg your pardon. I beg your pardon, your Honor, have you ruled on that last exhibit?
THE PRESIDENT: I did so.
MR. WOOLEYHAN: You did so.
THE PRESIDENT: Yes, I admitted that last Exhibit 156 in evidence.
MR. WOOLEYHAN: I enquire at this time whether the Tribunal and the defense have Exhibit NG-562. (to interpreter) Would you enquire if the defense have an extra copy for their use? You have it?
THE INTERPRETER: Yes.
MR. WOOLEYHAN: May it please the Court, for your convenience this document could be inserted after the last document that was introduced in the same book.
THE PRESIDENT: This will be marked page 109.
MR. WOOLEYHAN:NG-562 is another sworn affidavit and reads as follows.
"I, Dr. Armin Baur Medical Counsellor, Baeumenstrasse 18, Fuerth, hereby declare under oath:
"I was born on 21 April 1899 in Oettingen, Bavaria. I studied at the Erlangen University from 1932 until 1937, passed my State Examination there, and that of medical doctor. In order to obtain a civil service position in the State, I passed the appropriate examination t the Munich University in 1938. Since March 1937 I have been working as physician of the District Court in Nuernberg.
"I became member of the NSDAP on 1 January 1938, and have also been a member of the SA since 1934. In my capacity as Court physician, I was well informed of the situation at the Special Court and can make the following declarations: Court doctors were more and more degraded by the Special Court from their purely medical functions to the point of becoming instruments for the political aims of the Special Courts. The position of medical experts at the Special Court was very difficult; it happened that the Judges, especially Roghaug, simply expressed their wishes with regard to the expert opinion. Roghaug once declared: "The exports can say what they want, I shall decide, however, as I please." It was known that Oeschey and Rothaug were in close touch with the Gauleiter and it was, therefore, very dangerous to disagree with their will.
I myself tried to keep away from such matters as much as possible. Therefore, I was not considered trustworthy and obtained an independent position in the District Court.
"At this time, I want to take issue with regard to a few documents which have been presented to me. Among the records concerning Pirner, Adam, there is my written opinion of 30.8.43. This was the opinion I supported during the trial, too, since I, as a matter of principle, never deviate from my conviction as set forth in my written statements when in Court. Besides, in the course of the trial no new point of view could be shown which could have made me change my opinion. Despite this fact, however, I find on page 97 of the document a note concerning the trial, giving a account of my alleged opinion, which is quite the contrary of my written statement. It is absolutely impossible that during the trial I could have made such basically different declarations. I consider this a false entry or the record, not corresponding to my verbal dispositions.
"In the case of Katzenberger I was appointed the medical expert, although * would have liked to keep away from this case. I recall the following details concerning this matter. Rothaug called me in and said he wanted to pronounce a death sentence; it was, therefore, necessary that the defendant be examined. He emphasized that this was a question of pure formality, as the "guy" would be beheaded anyhow. To my reproach that the man was old and that it seemed questionable to me whether it was not going too far to accuse him of "race defilement", he shouted: "It is sufficient for me that the swine said that a German girl had sat on his lap." At the same moment the telephone rang and I suppose that either the Gauleiter or Haberkern called. Rothaug first apologized for the fact that the session to which these higher ups were invited was being postponed in order to have the menta* state of the defendant examined. To a further question which I did not understand, of course, Roghaug answered: "This is only make-believe". Then, looking at me Shaple, he replied to another observation from the other end of the conversation: "I hope the man is all right". I assume that the question referred to the person of the expert. In fact, Katzenberger was neither insane nor feeble- minded; on the contrary, he knew exactly what he could expect from Rothaug.
He was, however, an old man who was suffering fro. heart disease, a condition that did not prevent Rothaug from hatefully shouting, at the man during the trial, as it was habit. I was asked about the conversation I had with him, which I reported. Obviously this created no sensation, just as the description of his health left everybody quite cold. During the proceedings against Katzenberger I had the impression that it was purely a sensational political trial, in which the Presiding Judge strove to show his unequalled brutality to insult the defendant in the most vulgar way; he left out nothing to drag Katzenberger's alleged affair through the mire. It was certainly the most repulsive trial I ever witnessed and Rothaug really acted in a manner which was unworthy of a human being, especially of a so-called educated man. His conduct of trials was always marked by brutality, shouting at the defendants or at un-co-operative witnesses. At this occasion, however, he really surpassed himself."
MR. WOOLEYHAN: Skipping to the last page of this document:
"Foreigners were generally dealt with by Rothaug and Oeschey as inferior beings, whose task it was only to serve the German master race. The presumption alone that there was a case of violation of the rights of the "superman" would suffice to impose the most severe sentences. In cases of foreigners in which I acted as medical expert, Rothaug declared to me beforehand that there could be no question of foreigners asking for extending circumstances on account of reduced intelligence, since the degree of intelligence could not be measured by German standards.
"This statement is the full truth and was given without any threat. I read it, signed and declared under oath. Nurnberg, 3 January 1947." Signed: "Dr. Armin Baur."
MR. WOOLEYHAN: Prosecution offers this document NG-562 into evidence as Exhibit No. 157.
THE PRESIDENT: The document will be received in evidence.
MR. KING: I would like the Court at this tine to turn to Document Book 3-D. The prosecution will introduce at this time as Exhibit 158 the Document NG-357, which is to be found beginning on page one of the English and German document books. We begin reading from the opinion in the case of Rudolf Kozian on page two:
"The defendant attended the elementary and municipal school in Vienna, learned the restaurant trade and was a waiter until 1910. He took a driving test and earned his living as a private chauffeur, From 1915 until 1919 he served in an infantry regiment and was on the Russian front. Since 1919 he has been in business as a taxi owner-operator.
"He has been married since 1916 and has two sons who have both been conscripted.
"From 1916 on he was a member of the Social Democratic Party. He was a member until it was prohibited. During the Systenzeit (period of the Weimar Republic) he worked for the NSDAP by distributing pamphlets. After the seizure of power he became a member of the NSKK: however, in 1939 he left it again.
"On 10 or 11 November 1943 the defendant drove Frau Kiene, who was evacuated to Hainfeld from Germany proper, and her seriously wounded husband from the south station in Vienna to the auxiliary hospital Vienna-Lainz. On the return trip Frau Kiene and the defendant get into a conversation. She told him that she was originally from Essen and was bombed cut there during a terror raid. The defendant asked what Essen looked like and the witness answered that it was terrible there, but that it did not matter because the population was confident that the Fuehrer would rebuild everything at the end of the war. The defendant laughed at this answer and said to the witness, 'You people in the Reich may put up with everything. Do you Reich Germans and your Fuehrer believe that we Ostmarker have our ears stuffed with mud? We guarantee you if Vienna is bombed there will be a revolution (Negeraufstand) in the Ostmark. We hear and see everything. In his speech in November of last year the Fuehrer said about the closing battle cf Stalingrad: "Our troops have already occupied.
Stalingrad and will take the rest by surprise." Instead of that, however, Stalingrad was taken by the enemy and the Fuehrer hid behind silence, rather than inform the population of it. The Fuehrer said at that time that 340,000 dead were to be mourned. But that can never be correct since from my house alone seven were killed. To us Viennese it is all the same from whom we receive our bread, whether his name is Stalin, Churchill, or Hitler. What matters is that we can live. In the Reich for every 600 enemy bombers only three German fighters go up to meet them. I know that exactly since I sneak to many soldiers who arrive at the South station from Germany proper.
"'When I quarrel with someone and see that I can no longer carry on, then I stop and do not continue the fight until everything is destroyed. The Fuehrer in his speech said that he would destroy us all.'
"When the witness interjected that this was not true, the defendant answered: 'The Fuehrer has said that this war will be fought until one side will be annihilated. Every child knows that we are that side, unless the Fuehrer will come to his senses before then and offer peace to the enemy.'
"The witness thereupon answered that although the Germans from the Reich proper had experienced much sadness during the war they still had full confidence in the Fuehrer and the defendant ought to love him, the more so, since he too was from the Ostmark. But the defendant answered: 'If the Fuehrer were still living in the Ostmark, he would have been done away with a long time ago, because it is better that one disappear from the scene rather than have an entire young generation killed or wounded. I am convinced that if we lose the war, as thousands of Viennese believe, then no German from the Reich will leave the Ostmark alive. If you had left the factories in the Reich and not brought this trash to the Ostmark, then the enemy would spare the Ostmark. Under Schuschnigg we had in the end almost nothing but dry bread and this is being taken from us as well by this new government. This we did not think of, or nobody would have agreed to the Anschluss of the Ostmark to the Reich.'
"The witness answered. 'We all desire the end of the war but we will have to wait until victory is won.'
"To that the defendant declared, 'You are closer to Berlin than we are. If you would no longer have the Fuehrer then we would all be living in peace already, because the Fuehrer is not satisfied with ruling only Germany and the other countries which he has already occupied, he wants to conquer the world.'" We skip now to the last paragraph on page four:
"The defendant admitted part of his assertions toward Frau Kiene, as for the rest, he denied having expressed himself in the stated manner. Frau Kiene however had repeated the discussion with the defendant without prejudice in the effort not to say one word too much, so that the senate gained an excellent impression and believed the witness implicitly. Her statements therefore were used as evidence to the facts. The statements of the defendant were liable to paralyze and break down the people's will for resistance. His statements left me doubt that the war was lost and would end with the destruction of the German People unless the Fuehrer came 'to his senses before' and. asked for peace. Thereby he reproached the witness that the Fuehrer had only followers left in the Reich proper; that if he were living in the Ostmark, he would have been 'done away with' a long time ago, an expression with which the defendant wanted to say, according to the opinion of the witness, that the Fuehrer would have been forced to resign from the government. His further remarks, such as, there would be a 'Negeraufstand' in Vienna if there was an air raid, that the Viennese did not care whether they lived under Stalin, Churchill, or Hitler, that if the war were lost, no German from the Reich proper would, leave the Ostmark alive, show quite clearly with what measures the defendant wanted to weaken his listener's belief in a final victory, undermine the confidence in the leadership and cast doubt on the permanent union of all the German peoples. Thereby he proceeded in public because he had to take into account and, in fact, did take into account, that the witness would pass on his statements, and that is what happened later."
We skip now to the beginning of the next page in the English text:
"What the defendant has done is very serious. He did not hesitate even to attack the person of the Fuehrer in his statements which were full with seditious ideas. In spite of all objections by the witness, he maintained his assertions making still more defamatory remarks. The effect on the witness who, as he knew, had suffered already a great deal in this war, was such as to cause her to decide to 'escape' to the Reich proper end was induced only by third parties to remain. Moreover, the defendant made another attempt to undermine the morale of the German forces by sending tablets containing caffein to his son. That excludes the possibility of considering this a minor case. The senate has sentenced him to death in accordance with the sole punishment provided for this in Article 5, paragraph I. The defendant has acted in a dishonorable manner and he will therefore be deprived of all civil rights.
"According to Article 465 of the Criminal Procedure the defendant will bear the costs of the proceedings."
It is signed "Duve" and "Koehler".
That is all of this document that we care to read into evidence at this time and we therefore offer the Document NG 357 as Exhibit 158.
DR. GRUBE: May it please the Tribunal, in this Document 357, which is supposed to be submitted as an entire exhibit, there is in our document book an application by the Chief Reich Public Prosecutor regarding the re-opening of the case and a decision of the senate of the division of the People's Court regarding the application for re-opening - both of these documents. There is no photostatic copy in the exhibit of these two documents. Since the document is to be introduced in its entirety, we, however, in the exhibit which is to be submitted, do not find all its pants. I do not think that the document can be admitted in evidence in this form. Therefore, I object to the submission of this document.
MR. KING: I think because of an inability to get the sound mechanics working I missed part of the statement by defense counsel. However, as much of it as I got, this is the point which I think I understood him to make - that in the photostatic copy of the Document NG 357 a portion is missing and for that reason he does not feel that it should be admitted at this time.
Now, as to that exact portion, I am in doubt. But, nevertheless, I am quite amenable to the suggestion which he made. We do not want to offer in evidence at this time an original which in any way is incomplete. And we will naturally remedy that defect in the original before we offer it. However, since the document has been read - such portions of it as we would in any event read for the Court - may I suggest that we have it admitted conditionally and at such time as defense counsel can be satisfied that the original which we are offering - which we hand up to the Secretary General - is complete and in agreement with the German text; that the condition can then be removed by the Court
DR. GRUBE: Mr. president, at the beginning of the submission of the documents it was decided that the prosecution is not obligated to read the entire document, but that it has the right to read only parts of the document However, at the time it was stated expressly that the document will be regarded as having been submitted in its entirety. If now the Document 357 will be submitted as evidence as an exhibit then this means in fact actually that it has been entered in the form in which it is in our document book, and as above all as it is in the document book of the Tribunal, contained in the document book. Therefore, I believe that the defense has a right to request that all of the photostatic copies which are required for the entire document have to be introduced at this time. I do not want to wait until the condition has been fulfilled which the Prosecutor would like to offer. I believe that we have the right to demand that all the documents which belong to the original document have to be in it before it is submitted in evidence.
MR. KING: I fail to see the point of the remarks made by the defense counsel since I conceive it makes no difference whether the document, the missing portions are added now or later, but if it will make defense counsel feel better, we will withdraw it and later submit it, as we would in any even when the defect in the photostatic copy is remedied. We therefore withdraw for the present the exhibit which was to have been 158, and will submit it again without further reading when the missing photostatic portions are included in the document.
THE PRESIDENT: I was wondering whether inasmuch as the notations have been made in the record of this exhibit number whether this exhibit might retain its number and then comply with the submission and then have the fin* submission and the final acceptance?
MR. KING: If it is the rule of the Court I would be very happy to have it that way. In fact, that is what I suggested before counsel got up the second time.
THE PRESIDENT: No, it isn't quite the same. It was suggested to admit it conditionally. It isn't admitted even conditionally under the suggestion just made.
MR. KING: All right, we will consider the next document then as 159.
As Exhibit 159 the Prosecution will now introduce Document N.G. 381 to be found in Document Book 3-D, at page 17 in the English text and at page 22 in the German text. We be in reading from this document on page 17 of the English text which is a letter dated Vienna, 3 April 1943 from the Ortsgruppenleiter, whose signature is illegible on the photostatic copy which is included with the original exhibit. The letter bears the notation:
"Subject: Oskar Beck, of mixed race, Vienna, 2., Obere Donaustrasse 12, "I enclose a report from the competent block leader on Oskar Beck.
Beck is of mixed race, 1st degree, but he behaves like a 100% Jew and is a malicious enemy of Party and State, who unfortunately could not be caught up to now, I have already raised objections against the man when, at approximately 11 o'clock at night, he removed wireless sets from his shop to install them in his flat. I reported to you personally in this matter at the time, but there was then no means of initiating proceedings against him.
"The present report may make it possible to apprehend Beck."
We desire to read next from the bottom of page 18 in the English text which I believe is the beginning at the top of page 23 in the German. It is a note dated Vienna, 29 June, 1943, labeled confidential, and refers to the man Beck.
"The above-mentioned was a member of the social democratic party and while it was banned, he was a voluntary member of the Fatherland Front. He was at that time an adversary of the movement.
"There has been no change in his opinion up to the present. He does not belong to any of the affiliated associations of the NSDAP and gives very small sums to collections.
"On political grounds exception must be taken to Beck, who is of mixed race, 1st degree. Heil Hitler! " Signed Volkmer.
We now turn to the indictment which begins on page 19 of the English text and I believe it is near the top of 24 in the German text. The indictment is signed by Dr. Barnickel, Berlin, 30 July, 1943, the Chief public Prosecutor at the People's Court.
"The radio engineer and radio dealer Oskar Beck, born on 21 July 1899 in Vienna, from Vienna II, Obere Donaustrasse 15, bechelor, no previous convict provisionally arrested on 3 June 1943, from that day on under detention pending judicial investigation in virtue of the warrant issued by the examining magistrate at the District Court, so far without defense counsel, is charged by me in Vienna in March or April 1943 to have undermined the fighting moral by malicious incitement against war work for women. - Crime according to article 5 paragraph 1 No. 1 of the Extraordinary War Penal Ordinance.
"The defendant who attended the elementary school and a four years' high school course in Vienna and for five years attended a trade school for electr** technicians was employed until 1924 in a number of places; since then he has had a shop of his own with a net income of 200 Reichs marks per month. He is of mixed race, first degree, his mother was a Jewess. From 1919 until March 1922 he was a member of the Social Democrat Party. He is now a malicious adversary of the National Socialist State.
"In March or April 1943 he repaired the wireless-set of Theresia Draxler retired post office secretary. When leaving her apartment he saw application form for joining the total war effort on the kitchen table. He asked the witness Draxler whether she had already filled in the form and added;
'Do you know that every woman, who goes to work, sends one soldier to his death?'
The witness Draxler did not answer him. Then the accused left the apartment.
"He denies, but has been convicted by the trustworthy statement of the witness.
"The remark of the accused aims at preventing a person from duty register for the total effort. This attempt to burden the conscience of a woman, who is willing to work, by seeking to make her responsible for the hero's death of soldiers, jeopardises the devotion to work of women and has an adverse efi on the nation's fighting morale and its will to self-preservation in total war.
The accused could not count on Mrs. Drxler keeping his remark to herself, but had to reckon with the fact that she would speak of the incident to other people and that his utterance would become known to wider circles."
There follows some other notations which we will not read and is signed as previously indicated, by the defendant Barnickel.
We call attention now to the fact that on page 25 of the English text, 26 in the German, there appears a statement signed by Dr. Barnickel which should precede page 21 in the English text. It makes no difference in the orderly presentation of the case except there apparently is an error in assembly. We read now from the opinion verdict which begins on page 21. He begin reading from page 22, the second full paragraph. That is page 28 in the German.
"The Drakler couple were among his customers in Vienna whom he had sold a radio several years ago. At Mrs. Draxler's request he had repaired it several times. In March 1943 Mrs. Drakler called him in again to overhaul the radio. As he left the apartment, he happened to see lying on the kitchen table an application form for employment in the total war effort. Believing this to be Mr. Draxler's form, he asked Mrs. Draxler whether she too had filled in such a farm. When she informed him that she had got the form for herself, he said: "You realize of course, that every woman who goes cut to work, sends a soldier to his death?" Mrs. Draxler who was very indignant about this remark, refused to answer and he left very soon afterwards. Later on she spoke of this incident to some of her acquaintances, among others to the wife of a political leader in the NSDAP who reported it to the Ortsgruppe (local division of the NSDAP).
"The Senate considers these facts to be correct on account of the trustworthy statements made under oath by Mrs. Draxler. The defendant admits that he was in the apartment of the witness in the spring of 1943 to test the radio and to have left it through the kitchen; he denied emphatically, however, during the preliminary proceedings as well as at the trial to have made the remarks with which he is charged or any similar remark. He maintains to have only discussed business matters with Mrs. Draxler as with his other clients. The woman might have been annoyed that the radio had been out of order several times and had therefore reported him. The witness might have heard the remark from somebody else and mixed it up. His attitude was not hostile to the Third Reich. He had advised a National Socialist, Walter Pinder, who during the Schuschnigg period had supplied him with cardboard out of which swastikas had been out, to be careful. The party member senior customs inspector Schmidt and Scerences would be in a position to testify to it that he has not been an enemy of Nationalsocialism. An inquiry at the Rembrantstrasse Ortsgruppe would show that he had done repair work for them free of charge.
"The defendant cannot have any success with defense. The witness Draxler firmly maintained her statements in the face of all his objections and the Senate from her bearing at the trial gained the conviction that the witness did not wrongfully accuse the defendant out of annoyance because her radio did not work.
Furthermore, she denied to have been annoyed at all and pointed out quite rightly that she had not made the report. The Senate is convinced that by his denials the defendant is only trying to avoid the serious consequences of his offense. To interrogate the iwitnesses Pindur, Schmidt and Scerences and to obtain a statement from the Ortsgruppe Rembrandtstrasse in Vienna is superfluous in view of the facts, especially if one considers that for ulterior motives the defendant would not have disclosed his true opinion to these witnesses nor to the Ortsgruppe.
The way in which the accused spoke calmly and deliberately, and without any apparent cause, only an enemy of the state can think and speak.
"The utterance which the accused is known for certain to have made to the witness Draxler, was liable to impair her as well as other people's willingness to work for the total war effort. By his remark he attacked therefore the fighting morale and the will for self-preservation of the German people and this he did "publicly" within the meaning cf article 5, number 1 of the Extraordinary War Penal Ordinance, as he had to count on the fact, and he actually did count on it, that the witness, whom he did not know well would spread his remarks, as actually did happen. The Senate is furthermore cf the opinion that the accused was fully aware of the defeatist nature of his remark and the publicity in the above sense. Thus, the conditions under article 3, paragraph 1, number 1 of the Extraordinary War Penal Ordinance of 17 August 1938 apply. The fact that the intention cf the accused was without any result as regards the witness does net affect this state cf affairs: the purpose of the above ordinance is not merely to prevent any undermining of the people's will to self-preservation, but to prevent all possibility of undermining it.
"It is out of the question to assume a less serious offense because the accused acted with the intention to undermine morale and because the appeal to the emotions of a woman prepared to join the war effort represents a well calculated and particularly mean and dangerous attack on the German nation's will to self-preservation. Accordingly, the death-sentence, which is the only penalty provided for the crime of undermining the defense morale, was passed on the accused."
The verdict opinion is signed by Millendorf, That is all of that document which we will read at this time. We therefore offer formally into evidence as Exhibit 159, the Document NG-381.
THE PRESIDENT: The document will be received in evidence.
MR. KING: I ask the Court to note at this time that Exhibit 158, or which will become 158 when introduced, is now complete and has been submitted to defense counsel for examination. Perhaps we should permit more time for that. I understand, and let the record so show, that defense counsel has no further objections to the admission of NG-357. We therefore reoffer it as Exhibit 158.
THE PRESIDENT: We hear no objection. It will therefore be admitted in evidence.
MR. KING: We invite the Court to turn now to page 26 in the English document book 3-D, which is the beginning of the case against the Frau van Brincken. We ask the Court in that document to turn first to page 38 of the English text. This will became, when offered in evidence, Exhibit 160* The portion -
THE PRESIDENT: Did I understand counsel to say page 38?
MR. KING: Page 38 of the English text, yes.
THE PRESIDENT: That seems to bear a different number.
MR. KING: It will be Exhibit 160. That is 274.
THE PRESIDENT: 274; that's correct, sir.
MR. KING: We ask the Court's indulgence as we move from place to place within this document in an effort to present the story in as coherent a fashion as possible.
The portion from which we are now about to read is styled, "Copy of Filenotice dated 7 October 1944."
"The records of the Chief Public Prosecutor at the People's Court in the case against Frau Erika von Brincken for undermining the morale of the fighting forces, file number 4 J 1868/44, have been submitted. They begin with a report of the Kreisleiter of the Kreis of Rostocktown of the NSDAP to the Secret State Police based on records of the NSDAP, Ortsgruppe Warnemuende, Alter Strom, concerning the statements of Frau Kaete Koestner and Adolf Rcennau.
Frau Kcestner deposed as follows: " -- the extract being -
"On 9 August 1944 the woman who had the beach chair beside mine and who had occasionally talked to me asked whether I had heard that the Officers had been hanged. She seemed to feel indignant about it and went on to say, they should have been shot according to martial law. I asked her what would have happened if the plot had succeeded. Thereupon she merely replied: 'Well, that is a question.' In the course of conversation she also said that she knew Witzleben and Schulenburg personally.
"On 13 August the woman again took the chair next to me and Herr Roennau and in the course of conversation asked to what extent the Heinkel Works had been destroyed. In her opinion 90 per cent had been. Then she told us how she had said to Dau the chair man when he got angry about the bad way in which his chairs were treated: 'Well, don't worry, the Russian Kommissars will be sitting in them next year." She was also indignant because her 17 year old daughter had just been drafted for labor assignment in the country, and said it would do the farmers no good, they would only get more work and more worries. The girl could not do anything but eat.
"Then she came to speak about the construction of fortifications in the cast and said that a few trenches like that could not hold up the Russians. Last week's events had shown how the German tanks overran everything and the Russian tanks were at least as good, if not better. There was no use making any pretense about it, we must be honest. Finally she mentioned that she had received a letter from her sister-in-law, Frau Klausing, in which the latter expressed her anger because their name was ruined forever. Since I assumed that she had the same name I asked her whether she thought that it was meant for her. Thereupon she looked all around her, as she had often done during our talk, and finally said: 'One can't say everything. I do not bear that name, and if I did, then it would be just the opposite.'
'The witness Roennau confirmed Frau Koestner's statements and added that during the Heinkel conversation he had said himself that in his estimation only 50 per cent had been destroyed, whereupon she asked quite indignantly how he had got this percentage, they knew pretty well what they wanted to hit.