MR. WOOLEYHAN: Following is an enumeration and in the margin of it "average results", grading on down through 1938, 1939 and 1940, then increasing again in 1941 to 280,439. In 1942 increasing again to 288,688.
"Final results for 1943 and 1944 are not yet available.
"As regards the above figures it should be borne in mind that the figures for the years up to 1941 comprise all persons convicted in the old Reich territory, without consideration of race and nationality. Since 1 January 1942 the nationals of the Protectorate, racial Jews and Polish nationals and Jews who wore convicted under the Criminal Law Ordinance for Polish Nationals, dated 4 December 1941--" at this moment for clarity may I interpolate to the Court that the Statute there referred to of 4 December 1941 is found on page 48 of Document Book 2 and the full title of that statute is: "Decree of 4 December 1941, Reichsgesetzblatt, Part 1, Page 759; concerning the Organization of Criminal Jurisdiction against Poles and Jews in the Incorporated Eastern Territories." If I may re-read that sentence? "Since 1 January 1942 the nationals of the Protectorate, racial Jews and Polish nationals and Jews who were convicted under the Criminal Law Ordinance for Polish Nationals, dated 4 December 1941 are covered separately for purposes of criminal statistics. In that respect number of persons comprised for 1942--" that refers to the above table which I just read-- "is smaller than in the preceding years. On the other hand, the territory covered in 1942 is larger than in previous years since from that time on, the convictions of racial Germans from the Sudetenland, the Protectorate and the incorporated Eastern territories were combined with the figures of the old Reich territory into a Reich sum total. This enlargement of the territory comprised may offset the decrease in the circle of persons who are listed so that a comparison of the above mentioned figures may be justified."
MR. WOOLEYHAN: Skipping a paragraph.
"The figures of comparison give a very favorable picture of the development of the criminality of adults during the war. It is true, the figures for the years 1939 to 1942 show that the curve of criminality is again gradually increasing after the decrease at the outbreak of war. However, there is no need to be worried aver this increase. It is not caused by a real increase of criminality for a great number of criminal actions remained unpunished during 1940 and 1941 by virtue of the Fuehrer's Amnesty Decree of 9 Sept.
1939, so that the figures for 1939 and 1940 - just as for 1938 - are lower than the actual movement in criminality.
"The seeming increase of criminality of adults since 1941 results merely from the fact that at that time the Amnesty Decree of 1939 for civilians was no longer effective."
MR. WOOLEYHAN: Skipping now to page 65 in the English book begin at Paragraph IV:
In accordance with the order given by the Fuehrer to the judicial authorities to apply the most severe measures against traitors, saboteurs, people's parasites, terror criminals and anti-social professional criminals, during the war, the number of death sentences has continually increased since the outbreak of the war. The total figures for that period are as follows:"
MR. WOOLEYHAN: I won't read the entire list but I will just compare that the figure is for 1939, which tabulates 99 death sentences. The last figure is 1943, which tabulates 5536 death sentences "For 1943 the following survey shows the distribution of death sentences as applied to the individual criminal acts."
MR. WOOLEYHAN:
Thereafter follows a table of some length which the prosecution does not propose to read in its entirety. It merely wished to call the Court's attention to a brief comparison of the first item, "High treason and treason" for which 1745 death sentences for the year 1943 are tabulated. The sixth item on that list entitled, "Dangerous professional criminals, thieves, swindlers, taking advantage of black-out and war conditions" for which during the same period 938 death sentences are tabulated and the last item on that list which is entitled, "Death sentences of the annexed Eastern territory" for which 894 death sentences are tabulated. We invite comparison of the three items of that tabulation which was read with all of the rest of the list.
Skipping now to page 68 of the English, commencing two paragraphs before Roman paragraph VI:
"If one regards the offenders who commit war crimes of such an epidemic character, it is striking that it is not the active criminal elements such as professional and habitual criminals who represent the main contingent, but far more the labile, unsteady characters. But they arc as much dangerous because they are representing a larger part cf the population than the proper aliens to the community who become criminal out of an inner want and criminal tendency.
"The deterring effect cf severe punishment in their case is therefore greater than with active criminal elements. Hard, quick and striking measures against such an epidemic immediately when it breaks cut is therefore salutary and the most just in its result.
"Paragraph VI: According to its predominant task of protecting against sedition and purging from deterioration the stability of the home front and the war potential of the people, criminal jurisdiction must turn in the first place to the fighting of the severe criminality and such criminal acts which involve the danger of an epidemic spread. That task must be accomplished by the Justice with a staff of judges and prosecutors which has been considerably reduced by the very induction of the most active jurists and by the unusually large transfer of particularly energetic officials to the administration of the occupied territories. It turned out to be inevitable therefore to balance the considerable engrossment on this side to a certain extent by renouncing to try cases of less severe criminality. Besides a need for saving working-power, the necessity for doing so also ensued upon the offenders' side. They are today employed primarily in most important assignments for armament tacks or in agriculture, and as much as the execution cf penalty has been directed towards war-essential work, every extraction of an offender out of his job in a plant means an undesirable interruption in his assignment."
That is all cf Thierack's report that we care to read. The prosecution offers now as Exhibit No. 172, Document NG-252.
THE PRESIDENT: It will be admitted in evidence.
MR. WOOLEYHAN: The prosecution turns now for a moment to Book 2, previously admitted in evidence, in order to refer at this juncture to the following statute: Decree of 25 November 1939, Reichsgesetzblatt, Part 1, page 2319, supplementing penal -
THE PRESIDENT: What page of that book are you referring to?
MR. WOOLEYHAN: Page 22, your Honor.
"Supplementing penal provisions for the protection of the Armed Forces of the German people.
"Section 1. Damage to War Material. Whoever intentionally destroys, renders unserviceable, damages, abandons or removes military equipment or installations intended for the defense of German territory, and thereby endangers intentionally or through negligence, the fighting power of German Armed Forces, shall be punished by imprisonment for not less than six months. In especially serious cases the death penalty or hard labor for life, or hard labor for a period shall be imposed.
"A like punishment shall be inflicted upon a person who intentionally manufactures or delivers in a defective manner defense equipment or military installations or intentionally fixes a defective production or delivery thereof, and thereby intentionally or through negligence endangers the fighting power of the German armed forces. The attempt is also punishable.
"(This paragraph was added by amendment of 4 September 1941, Reichsgesetzblatt Part I, page 349, Section 3, and incorporated into the Reich Penal Code as Section 143a.
"Section 2. Disturbance of Essential Enterprise. Whoever disturbs or imperils the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population in that he made a thing serving the enterprise completely or partially unusable or put it out of commission, shall be punished by hard labor or in especially serious cases by death."
May the court please, would it be too inconvenient for the Tribunal to rise at this time? We find ourselves Unable to continue until we again convene after the noon recess.
THE PRESIDENT: You are ready at this moment to take up some other document?
MR. WOOLEYHAN: Yes sir, it is of considerable length and I would not like to read it in two parts.
THE PRESIDENT: We will recess at this time for the noon recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 27 March 1947)
THE MARSHAL: The Tribunal is again in session.
DR. BEHLING (Counsel for defendants Schlegelberger and von Ammon):
In Exhibit 172, NG 252, which was presented today, a mistake occurs, either a typographical error or an error in translation, which in certain conditions might upset the meaning of the sentence. On page 171 of the German text, line 10 from the bottom, it says, "Since 1 January 1942 the nationals of the Protectorate, racial Jews and Polish Nationals and Jews who were convicted under the Criminal Law Ordinance for Polish Nationals, dated 4 december 1941--" I am now coming to the significant word "are separated in a criminalistic respect." The words "in a criminalistic respect" give cause for objection, insofar as it evidently should say "criminal statistics", "with reference to criminal statistics".
These two concepts differ from each there considerably, and the meaning would be changed completely. Therefore, I would ask that the original or the exhibit should be examined in respect to this mistake and, if possible-that is to say, if my view is correct-- a corresponding correction should be made.
MR. WOOLEYHAN: If the Court please, I am sure that some satisfactory arrangement can he made. However, the Prosecution would like to re-examine the original before saying anything further.
THE PRESIDENT: The Tribunal has been under the impression that either some procedure had been provided in matters of disputed translations or that such procedure would be established.
THE INTERPRETER: I am sorry, Your Honor, we did not get your sentence. 1156
THE PRESIDENT: Apparently what I said has not gone through. The Tribunal had the understanding that either s some procedure had been worked out relating to disputed translations or that such procedure would be worked out and that we would not stop during the introduction of documents to settle these matters as me go along, but that they would be adjusted at same later time. Is that agreeable to Counsel?
MR. WOOLEYHAN: Your Honor, that is completely agreeable, and some arrangement such as has been suggested has been worked out to take care of these translation matters outside of Court. However, as the Prosecution understood the objection of Defense Counsel, it was not a matter of translation but the problem was this: There is a word in the defendant's copy of the German document that is different from the way it was read, from the original. In other words, the German word is different in the exhibit from the copy of the exhibit in the German book.
THE PRESIDENT: Do you mean by that the original German document has not been properly copied?
MR. WOOLEYHAN: That is the problem, Your Honor.
THE PRESIDENT: That could easily be corrected, it seems.
MR. WOOLEYHAN: Easily.
DR. BEHLING: Perhaps I may have another look at the original. Perhaps you will allow me to see the original again.
THE PRESIDENT: Certainly. It would seen that with the assurance of the Prosecution that those matters will be corrected, mo really should go on with our testimony and that the matter can be adjusted later. Would that be agreeable? Apparently so. We shall proceed.
HR. WOOLEYHAN: We turn now to Document NG 423, in the same book--3-E--from which we were rending this morning.
NG423, page 71, English Document Book 5-E.
To give this present document further point, we would like to refer again to the statute read just prior to the noon recess. The break was unfortunate, but by reference we can refresh the recollection of what that statute was. The statute was in Book 2, on page 22, and inflicted varying penalties up to death for various damages to war material and essential war enterprises. That was read in full before the noon recess. Page 22, Document Book 2. Far the benefit of Defense Counsel, that statute was found in the 1939 Reichsgesetzblatt, Part 1, Page 2319.
Turning now to Document NG423, this document appears to be a letter, bearing the letterhead of the Attorney General at Dresden, dated 22 March 1944 and stamped "Secret". It is addressed to the Minister of Justice in Berlin. Handwritten at the top of the page, appear the words, "The minister asks to submit him to the proceedings which have led to the establishment of paragraph 2 of the later proof".The subject of this letter is stated to be penal proceedings on account of offenses against Paragraph 143a of the penal code and Paragraph 2 of the regulations supplementing the criminal ordinances for the protection against undermining the defensive strength of the German people.
That is the familiar statute, we nay remind the Court, to which we have referred a number of times, found on Page 17 of Document Book 2.
On the first page of this letter, just under the addressee, Minister of Justice, Berlin, are found the initials of the defendant Klein.
The letter begins:
"By the circulars of the Minister of Justice of May 3, 1940, 30 October 1940 and January 23, 1941, it has been decided that in all penal proceedings dealing with offenses against paragraphs 1 (now 143a f the penal code), 2 of the Military Power Protection ordinances (Wehrkraftschutzverordnung), the records have to be submitted, after the end of the inquiries, to the defence section of the Supreme Command of the Armed Forces (OKW) f r its consideration and approval. This has to be effected without the intervention of the Minister of Justice."
May it please the Court, before I go further, to clear up any possible confusion , when I mention that the first page of this letter bears the initials of the defendant Klem, that fact does not appear on the mimeographed copies, but it does so appear on the original document which will be offered in evidence.
When I mentioned that this first page of this letter bore the initials of the defendant Klemm, that fact does not appear on your mimeographed copies, but it does so appear on the original document.
"However, my attention has been called to the fact that the advice given by the Supreme Command of the Armed Forces has repeatedly refused to apply par. 143a of the penal code and par. 2 of the ordinances for the protection of German defensive strength although for fundamental reasons I should have considered it desirable to sentence the culprit to penal servitude.
"In view of the transfer of numerous armament-plants from regions exposed to air-raids in my district as well as the increased employment of foreigners and members of the Protectorate, I attribute a considerable significance to the apparently less serious cases of sabotage actions. Even if the Supreme Command" -- I interpolate there "of the Armed Forces" -- had denied the use of the par. 143a of the penal code or of par. 2 of the ordinances for protection of German defensive strength the conviction of the saboteur to a proper penalty has been obtained in particular cases by calling upon par. 304 of the penal code in connection with par. 4 of the 'Decree against Public Enemies,' it seems appropriate that in the report of the OKW the following circumstances be mentioned: Considering the high number of such cases, a higher penalty should be placed upon the individual case."
Skipping to the end of this letter, it is signed by one "Jung," who we presuppose from the letterhead was the Attorney General of Dresden at that time.
Passing to another part of this same document, we find it to have originated in the same office as the first part, namely, the Office of the Attorney General in Dresden, dated, however, three months later, the first of June 1944. This letter is likewise stamped "Secret," and sent likewise to the Minister of Justice in Berlin. Its subject is: "Penal Proceedings for Offenses against par. 143a of the Penal Code and par. 2 of the Regulations Supplementing the Penal Ordinances for the Protection against Undermining German Defensive Strength." It is addressed to: Department IV.
"I am forwarding the following records:
"1.) Records against Kindermann.
"Statement of the offense: Intentionally damaging parachutes during the process of manufacture.
"The opinion given by the Supreme Command denied the endangering of the preparedness of the German defensive strength. Sentence per par. 303 of the penal code: 1 year 8 months prison sentence. Requested by prosecution per par. 304 of the penal code: 3 years prison sentence.
"2.) Records against Vanecek (member of the protectorate)."
My we interpolate here a moment -- it scarcely is necessary but just for purposes of the record, whenever the word "protectorate" occurs, it of course refers to the two Czechoslovakian states of Bohemia and Moravia, which were annexed to the Reich by the rather euphonious term of "protectorate."
"Statement of the offense: The defendant had to manufacture floorpieces for tanks and to drill holes in same. In at least three cases, he intentionally and wantonly perforated or drilled wrongly so that the pieces became useless. In his report to the Supreme Command, the chief prosecutor expressed that he considered it a punishable act in reason of par. 143a of the penal code. The Supreme Command, however, denied the endangering of the German Armed defensive strength.
"Sentence of the Special Court Dresden per par. 304 of the Penal Code in connection with par. 4 of the 'Decree of Public Enemies":
"3. Records against Skuhravy (member of protectorate)" That is rather poor translation. It's not a member of the protectorate.
That means a citizen of the protectorate.
"Statement of the offense: The defendant was employed in the manufacturing department of the Saechsische Guss-Stahlwerke in Freital-Deehlen to mount the heads on 17 cm grenades, after same had already passed the control. On the 3.9. 1943 he intentionally marked a grenade provided already with the control-notch with a further notch so that the projectile had to be retained as scrap.
"The chief prosecutor assumed in his report to the Supreme Command an offense dealt with in par. 143a of the Penal Code. The Supreme Command however denied the endangering of the preparedness of the German Armed Forces.
"Sentence of the Special Court Dresden in reason of par. 304 of the Penal Code in connection with par. 4 of the 'Decree against Public Enemies' was two years penitentiary.
"Requested by prosecution: 1 year 3 months penitentiary."
We will omit reading the remainder of these reports on individual cases except to remark that in each case it appears to be a circumstance of either deliberately or negligently interfering with the proper manufacturer of war material munitions. In each case, the opinion of the Supreme Command of the Armed Forces was indicated, and then the public prosecutor's demand is indicated, and then the sentence is indicated. This is all considered in light of the statute which we read just before the noon recess on Page 22 of Document Book 2.
The final portion of this document that we care to read is found on the last page of the original. It's entitled: "Note."
"After formal verbal report before the Kutzner; I have discussed the matter with the chief public prosecutor Jung by telephone today:
"If the opinion given by the Supreme Command of the Armed Forces is not satisfactory, the stress should be laid on different viewpoints as the Decree against Public Enemies or complicity with the enemy, even if the Supreme Command of the Armed Forces denies the endangering of the preparedness or characterizes the case incorrectly as less serious. The chief public prosecutor Jung considers his suggestions herewith as settled."
That note is handwritten and any signatures on it cannot be deciphered. The prosecution offers as Exhibit No. 173, Document NG-423.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: At this point, the prosecution returns again to Document Book 2, Page 24. For benefit of defense counsel, the statute on that page is 1939 Reichsgesetzblatt, Part 1, Page 1841, entitled "A Law for the Changing of Regulations concerning General Penal Proceedings, the Armed Forces Penal Law, and the Penal Code.
"Article 2, Extraordinary Appeal."
Skipping to Section 3 is the "Extraordinary Appeal against Legally Valid Sentences.
"(1) Against legally valid sentences in criminal proceedings the Senior Reich Prosecutor at the Reich Supreme Court can file an appeal within one year after they have been pronounced, if, because of serious misgiving, concerning the justness of the sentence, he considers a new trial and a new decision in the cases necessary."
Skipping to sub-section (3):
"If the first sentence was passed by the People's Court, the Appeal is to be filed by the Senior Reich Prosecutor at the People's Court and the second trial is to be held by the Special Senate of the People's Court. The same applies to the sentences of Courts of Appeal in cases which the Senior Reich Prosecutor, at the People's Court, had transferred to the Public Prosecutor attached to the Court of Appeals, or which the People's Court had transferred for trial and sentencing to the Courts of Appeal."
Skipping now to Section 5 of Article 2:
"The Special Senate of the People's Court.
"(1) The Special Senate of the People's Court consists of the President and of four members.
"(2) The Special Senate is presided over the the President of the People's Court and, if he cannot be present, by the Vice-President, One of the members must be a Senate President or a Councillor of the People's Court.
"(3) Members and their deputies will be appointed for the duration of two years by the Fuehrer, on the basis of suggestions submitted by the Reich Minister of Justice."
Turning now to Page 35 of English Book 2. For the benefit of the defense, this is a Statute published in 1940, Reichsgesetzblatt, Part 1, Page 405. It is entitled: "A Decree of 21 February 1940 Concerning the Jurisdiction of the Criminal Courts, the Special Courts, and Additional Provisions of Criminal Procedure."
Skipping to Article 26 of that Statute, which is found on Page 35 of Book 2.
"Article 26, Incentestability.
"1. There is no legal appeal against a decision of the Special Court."
Skipping now to Article 34.
"Conditions for a petition for nullification.
"The Chief Public Prosecutor may lodge a petition for nullification with the Supreme Court against a final judgment of a Judge of the Criminal Court or of the Special Court, within one year from the date of its becoming final, if the judgment is not justified because of an erroneous application of law on the established facts."
THE PRESIDENT: I call your attention to the fact that in Article 34, that language does not appear in the copy.
MR. WOOLEYHAN: Yes, but the language is there. The typed copy omitted the words: "Article 34." That should be inserted just under the asterisk.
Turning now to page 78 in the English Book III-E, we find Document NG-312; NG-312 is a sworn affidavit, reading as follows:
"I, Paul Barnickel, depose and state as follows:
"I was Public Prosecutor at the People's Court from 1 December 1938 until 1 December 1944. My section was Section IV of the Public Prosecution, and Section V from 1 January 1944 on.
In 1943 my section handled more than 3,000 cases altogether, among which about 2,500 concerned subversive activities against the Armed Forces.
Both Supreme Courts, the People's Court as well as the Reich Supreme Court, were competent to show cause for extraordinary appeal. We in the People's Court handled only political cases.
"The extraordinary appeal was made not only against verdicts of the People's Court, but also, and chiefly, against verdicts of the Courts of Appeal.
"There were two channels for this.
"Insofar as political cases were concerned - political proceedings were turned over by the People's Court exclusively to the Courts of Appeal - the verdicts of the Courts of Appeal were submitted to the People's Court or rather to the Attorney General Dr. Lautz, and were then sent to the section of the Public Prosecution which had worked on the case previously. There the verdict was examined. If, for instance, the man in charge of the case" -- Do you wish to make an objection at this time?
DR. GRUBE: (Attorney for Defendant Lautz) May it please the Tribunal, I do not know whether this is the right moment for reading out this affidavit, since Barnickel, who gave the affidavit, is present himself, and will be examined in the course of this trial.
I consider this objection necessary because this affidavit states as facts and names, among points, that do not agree with the actual conditions and with the legal situation concerning the extraordinary objections of the extraordinary appear. I would, therefore, like to object against the reading out of the affidavit, and should like Barnickel to be heard on this matter when he is examined.
THE PRESIDENT: Is it necessary for the Prosecution to be heard? We have no assurance that Dr. Barnickel will ever be called by the Defense, and there is no requirement surely on the part of the Prosecution to call him personally; they have a right to use any statement he makes against his interest.
MR. WOLLEYHAN: If the Tribunal please, I would like to say but one word with regard to the objection. We agree with the Tribunal that there is no need for discussion on the point just mentioned, but with regard to the credibility of whatever is said in this affidavit, that is not a matter of argument on the part of the Defense at this time, but if such a lack of credibility does exist, it is incumbent on the Defense to show.
For the benefit of the court, I am going to reread about four lines here so that the though is not disturbed.
"Insofar as political cases were concerned - political proceedings were turned over by the People's Court exclusively to the Courts of Appeal - the verdicts of the Courts of Appeal were submitted to the People's Court or rather to the Attorney General Dr. LAUTZ, and were then sent to the section of the Public Prosecution which had worked on the case previously. There the verdict was examined. If, for instance, the man in charge of the case was of opinion that the verdict was contrary to the entire usual jurisdiction, he went to his Public Prosecutor and discussed it with him.
If they agreed that the verdict was unjustifiable or that some legal concept had been changed, the case was submitted to the Attorney General Dr. LAUTZ. A report was then addressed to the Ministry of Justice stating that the Attorney General was of the opinion that in this case the extraordinary appeal should be made.
This report went to a section of the Ministry of Justice which was under Ministerialrat Dr. FRANKE.
This was one of the channels, the channel from the Public Prosecution to the Ministry of Justice. Then there was a second channel, the channel from the Ministry of Justice to the Public Prosecution.
The Ministry of Justice received all verdicts, not only those from the People's Court, but also the verdicts from the Courts of Appeal. They were examined in Dr. FRANKE's section and if they were objected to, they were returned to the Chief Public Prosecutor, Dr. Lautz with an accompanying letter, a so-called ministerial decree which was usually signed by Dr. FRANKE himself. In this letter the objections of the Ministry of Justice were stated, and then it said something like: "Please examine whether the extraordinary appeal should not be made for such or such reasons". This letter was naturally received by the Chief Pub. Pros. Dr. Lautz was was sent from there on to the competent section of the Public Prosecution. This section examined the case and made its suggestions to the Chief Public Prosecutor, Dr. Lautz. In case the request of the Ministry of Justice for extraordinary appeal was rejected, it was reported that, for such and such reasons, the Chief Public Prosecutor was of the opinion that no extraordinary appeal should be made. Sometimes the Ministry of Justice accepted the fact. But it also happened that the Ministry of Justice requested once more that the extraordinary appeal be made and then the Chief Public Prosecutor Dr. LAUTZ could not but make the extraordinary appeal.
As for my section, I cannot remember that it ever happened that we suggested the extraordinary appeal to the Chief Public Prosecutor Dr. LAUTZ. All such requests were sent to us by Dr. FRANKE's section in the Reich Ministry of Justice.
It was probably in 1943 to 1944 that most of the extraordinary appeals were made in the sphere of subversive activities against the Armed Forces and defeatism, because this was the sphere in which the Ministry of Justice became more and more interested.
The extraordinary appeal was made to the People's Court. The following document was drawn up by the Public Prosecution: "To the President of the People's Court. I appeal against the judgment of such and such date." Then came a short argument. The document was signed by the Chief Public Prosecutor, Dr. Lautz. The Court could not object to the extraordinary appeal, it had to accept it.
With the extraordinary appeal the verdict of the Court of first instance was quashed. No new charge was brought since the extraordinary appeal itself represented a new charge.
Then new proceedings took place before the special Senate of the People's Court. This Senate handled exclusively extraordinary appeals and was the only one competent for such cases.
I recollect no case in which the request for extraordinary appeal had been made by the Ministry of Justice in order to have the sentence reduced. It as always a request for severer punishment.
Even before the introduction of the extraordinary appeal into the criminal procedure there was a way to appeal against judgments.
That was to have a retrial. The judgment could be altered in the defendant's favor or otherwise. It was impossible, however, to have a retrial merely to obtain a severer sentence for the defendant. The main point in the retrial was that after the proceedings basic evidence had to be brought forth which was unknown before. Whereas in the extraordinary appeal it was not necessary to submit new evidence, and the existing evidence had only to be examined from a new angle.
I have read the above statement consisting of four pages in the German language, and declare that it is the whole truth according to the best of my knowledge and belief. I have had the opportunity to make changes and corrections in the above statement. I made this declaration voluntarily without any promise of reward and I was not subjected to any duress or threat.
Nurnberg, 13 November, 1946 Signed, Dr. Barnickel."
The Prosecution offers into evidence as Exhibit No. 174 the Document NG-312.
THE PRESIDENT: The document will be received in evidence.
The Prosecution refers once more to book No. 2, page 26. For the benefit of the Defense Counsel, this is an excerpt from a book entitled "German Criminal Procedure" (Hamburg, 1943) by Heinreich Henkel. On page 438 of that book appears the title: "Validity of Double Jeopardy and Breaches of this Principle." Beginning on page 440, I quote from that book:
"A criminal case on which verdict has been passed must not again become the subject of another criminal proceeding. This exclusive effect pertains to the subject of the case both as regards the crime and the criminal. *** According to the findings of the German Supreme Court and to the prevailing theory in accordance with these findings, the effect of ne bis in idem includes the history of the case submitted to the court for verdict. *** This theory, however, leads to unbearable consequences. In order to avoid the breach of the principle against double jeopardy in exceptional cases where jeopardy of a second trial is necessitated by the 'sound sense of justice'" ***
THE PRESIDENT: I think Mr. Prosecutor that you read that document just before noon.
MR. WOOLEYHAN: I certainly beg the Court's pardon.
Turning now to page 82 of document book 3-E; that is, document NG 348. NG 348 is a sworn affidavit which reads as follows:
"Sworn Affidavit "I, Guenther Nebelund, swear, testify and declare:
"The judiciary members of the Special Senate of the People's Court were, according to my recollection:
"People's Court Judge Greulich and People's Court Judge Lemele. Of the honorary members I recall only Hans Petersen.
"The Special Senate dealt only with cases in which an extraordinary appeal had been filed against the original sentence. The purpose of the extraordinary appeal was primarily that of rendering the sentence more severe. Statistics dating from the year 1944 gave, according to my recollections, a total of 70% death sentences for this Special Senate.