THE PRESIDENT: What I had in mind in making the inquiry, are there other papers in that Margarete Sponsel case in your possession?
MR. WOOLEYHAN: Not in the prosecution's possession; no, Your Honor. We obtained this document from research investigators after they had found the original case dossier and had extracted in the original German for our use what they thought was relevant.
THE PRESIDENT: If there are any other papers, they are not in Nurnberg, I take it?
MR. WOOLEYHAN: In this particular case, if there are any extra papers, they are still in existence in Nurnberg because this was a Nurnberg case, or else they have been destroyed as being of no longer use. I am not prepared to say which is the situation because I have never soon him.
One further word for the Tribunal's edification, if I may. With regard to every other case record that is not the result of a Nurnberg court action, no other papers, other than what we offer in evidence, are available in Nurnberg.
THE PRESIDENT: That will be true in the future?
MR. WOOLEYHAN: That will be true now and in the future. With regard to the Nurnberg case, since the documents were I assume found and captured here, other parts of these voluminous files are either scattered around somewhere or destroyed, but in any event, the prosecution never saw them. We only get what our investigators and analysts furnished us as excerpts from whatever original material they discovered.
THE PRESIDENT: We assume that there would be no objection to defense counsel searching the whole files to see if they can find anything additional?
MR. WOOLEYHAN: No objection whatever, Your Honor; as a matter of fact, the prosecution insofar as it is able, will turn over to the defense any unprocessed material on case records that we may happen to have if we can find it in our office.
THE PRESIDENT: It seems as though that is as far that prosecution counsel should be required to go.
MR. WOOLEYHAN: The prosecution offers as Exhibit 189, Document NG-750.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: Turning now to the succeeding document in Book 3-E, which is NG-620, which begins on Page 9 of the English book. NG-620 is a stamped certified copy of an indictment to the Special Court for the District of the Nurnberg Court of Appeals.
On the first page of this indictment, it lists seven defendants: Barth, Benachaud, Brabec, Hrbek, Krcupa, Langfritz, Schwarz. We will not read the individual descriptions of those defendants except to note that all of them are stated to be without previous convictions.
On the second page of this indictment, it begins:
I Charge:
1) Benachaud and Langfritz for stealing whilest taking advantage of war conditions.
2) Barth and Schwarz for continually stealing whilst taking advantage of war conditions and sometimes under aggravating circumstances, Schwarz for also selling stolen property at excess prices in the black market out of sheer greed.
3) Kroupa for continually and knowingly receiving stolen goods and partly for selling at excess prices in the black market.
4) Brabec for continually, Hybeck in one case, knowingly buying stolon goods at excess prices.
The defendants Barth, Langfritz, Benachaud, Kroupa and Schwarz up to tho time of their arrest were employed as workers in the shunting yards by the German Reichsbahn. The defendants Barth, Langfritz, Schwarz and Benachaud made use of this activity to steal from the railway goods waggons, which had been run into the Nurnberg shunting yard. As a rule they looked for booty in the trucks which contained International Red Cross booty in the trucks which contained International Red Cross free gifts for the English and American prisoners of war."
Skipping to Page 4 of this document, which is page 12 of the Document Book:
"Essential outcome of the investigation:
"The defendants have confessed in part. When they are lying, they are convicted by the evidence.
"These actions fulfill the conditions of punishable deeds as follows:"-
We will omit reading in detail the statutory offenses on which the prosecution indicts these men except to note that the first four: Barth, Benachaud, Langfritz and Schwarz, are indicted as having violated the public enemy statute.
Skipping to the last page of this indictment:
"The conduct of the trial fills under the competence of the Special Court for the district of the Nurnberg Court of Appeals.
"Therefore I accuse publicly and demand:
"a) Setting of a date for the trial.
"As evidence I produce:"-
And then the prosecutor enumerates a number of witnesses. No verdicts are offered. Conviction records arc offered as documents. And no other evidence. This indictment is signed: Nurnberg, 21 September 1944. The Chief Public Prosecutor of counsel with tho Special Court. Signed: Dr. Schroeder.
At this time, the prosecution calls as witness, Dr. Hugo Goeringer.
DR. HUGO GOERINGER, a witness, took the stand and testified as follows:
JUDGE BRAND: Hold up your right hand and be sworn. Repeat after me the following:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
DIRECT EXAMINATION BY MR. WOOLEYHAN:Q. witness, would you please tell the Court your full name?
A. Dr. Hugo Goeringer.
Q. Would you please describe, for the Court, your profession, your education, and your background briefly, please.
A. Since 1930. I have been an attorney-at-law at the Landgericht and Oberlandgericht at Nurnberg.
Q. Did you ever appear before the Nurnberg Special Court?
A. I have, in particular before the Nurnberg Special Court, defended foreigners from the western countries in particular.
Q. Do you remember a case before the Nurnberg Special Court some time in 1944 involving seven railway workers that were charged with stealing from railway trucks packages intended by the International Red Cross for English and American prisoners of war? Do you remember such a case?
A. Yes, I do. There can only be the Barth case, Benachaud and a certain Schwarz. The other names of the defendants in that case I have since forgotten.
Q. you state, Dr. Goeringer, then that case which I have just described, in your memory, could be only the Barth case? Is that correct?
A. In my opinion, yes.
Q. Dr. Goeringer, did you have anything to do with the Barth case?
A. The service officers franscais in Munich had asked me to defend the French nationals who had boon indicted by the Nurnberg Court, and therefore I knew that I defended the French citizen Benachaud in that case.
Q. I now show to the witness, to refresh his recollection, a certified photostatic copy of Document NG-620.
(Witness is offered Document NG-620)
A. That is my sentence -- I have to correct myself --- that is my indictment.
Q. Dr. Goeringer, you state that you recognize that document, do you not?
A. That is a photostat of the original which seen after the end of the war was in my office, for among the individual names, there is written in my hand, the result or the sentence which at that time was passed. Furthermore, I find in the case of Schwarz, entered in Gabelsberg shorthand, the note saying that the sentence, after the motion of the prosecutor cutting off five months spent in prison before the trial; that, in fact, the sentence was passed as the prosecutor had demanded.
Q. Dr. Goeringer, you have just said that on that original indictment, the photostat of which you now hold in your hand, you wrote as defense counsel, in your own handwriting, certain words on that indictment.
Having examined the photostatic copy myself, I have noticed that certain handwriting occurs on the left-hand margin of the first page underneath each name of each defendant. Is that the writing to which you refer as being your own handwriting?
A Yes.
Q Dr. Georinger, when did you write these words under the names of each defendant on that indictment?
A When the sentence was passed, that is during the trial, at the end of the trial rather. I am convinced that this is the sentence which the Special Court passed at that time.
Q Dr. Goeringer, you stated that you wrote those words on that indictment after sentence was passed on the defendants; is that correct?
A Yes. In German penal law this is what happens. First of all, the time of the sentence is announced, and then the reason is given why the defendant has been sentenced to this particular term; and, therefore, I noted these points.
Q Dr. Goeringer, would you please tell the Court, with regard to each of the defendant's names on that indictment, what sentences you wrote under each name. What were the sentences that you wrote down?
A In the case of Barth, that is to say under the name of Barth, I wrote down five years imprisonment, that is that Barth was sentenced to five years in the penitentiary at Zuchthaus. In the same way the notes under the name of the other defendants must be interpreted in the same way, that is to say, Benachaud was sentenced to a year and a half in the penitentiary; Brabeck was sentenced to one year ordinary imprisonment; Hrbeck sentenced to three months imprisonment; Kroupa two and a half years; Langfritz a year and a half; and Schwarz five years penitentiary.
Q Dr. Goeringer, when aid the trial at the Nurnberg Special Court take place at which the sentences which you have just read occurred; what date did it occur?
AAccording to my notes in my diary of the year 1944, the trial took place on the 20th of October, in the morning, at 8:30, Court Room 600.
Q Dr. Goeringer, did you, as defense counsel, attend that trial?
A Yes, I did, but as far as I remember, I was not the sole defense counsel, but one or two colleagues from Nurnberg also acted as defense counsel.
Q At that trial that you have just stated that you attended, namely the trial of Barth and six others, on the date you mentioned, at the Nurnberg Special Court, who was the presiding judge at that trial?
A Well, I must say I cannot say exactly at the moment, but on account of information that has reached me, I must assume that at the time Director Oeschey was the presiding judge.
Q Would you please repeat again, for reference, the date on which that trial took place?
A Friday, the 20th of October 1944.
Q You have stated, Dr. Goeringer, that at the trial of the seven defendants, including Barth, you were defense counsel for at least one of the defendants; isn't that so?
A I believe I acted as defense counsel for more than one; not only one, but at this moment I cannot give you the names exactly, but I do Know for certain that I defended at least Benachaud and Hrbeck.
Q In your defense of that case, if your client or clients instead of having stolen international Red Cross packages which, as the indictment states, was intended for Americans and English prisoners of war, but rather had been accused of stealing packages intended for German soldiers, in your opinion would the sentences have been any different?
A. I believe that I may assume that before the war and that because the Special Court usually took the viewpoint that the field mail constituted the only contact between the soldier at the front and the homeland. If somebody interrupted that contact then he would certainly have had a more severe punishment than happened in this case. So, the Nurnberg Courts, in particular the Special Court took the viewpoint that this or that parcel or letter might perhaps be the last message from the homeland to the front or from the front to the homeland.
Q. Dr. Goeringer, do you then consider that theft of soldier's packages intended for German soldiers is a crime warranting a death sentence.
A. I, generally speaking, take the view that the death sentence should only be pronounced if the criminal himself had shed blood.
Q. Dr. Goeringer, I assume that from what you have just said that you do not consider the theft of packages intended for German soldiers to be deserving of a death sentence. Is that true? Is that your opinion?
A. No. No.
Q. Dr. Goeringer, please restate then what your opinion was and whether or not stealing of post packages intended for German soldiers does or does not, in your opinion, deserve or warrant a death sentence?
A. I take the view that the death sentence is irreparable and that therefore the death sentence should only be passed if all other means have failed. If -- in summarizing I would like to say that every death sentence, even if the contact between front and homeland is interrupted, such an offense should not be punished with the death sentence.
MR. WOOLEYHAN: If the Court please, I should not like to be interrupted until I finish my cross examination.
THE PRESIDENT: If defense counsel desires to object to that particular question when should he make his objection?
DR. GRUBE: Dr. Grube. May it please the Court, I hold the view that the question, what opinion the witness holds as to when and whether the death sentence is justified, is not justified -- is not admissible. We are concerned here with a purely personal opinion -- not with an observation or an export opinion.
THE PRESIDENT: I should like to hear the question propounded again.
JUDGE BRAND: May I ask you whether or not you inquiry direct to the witness was as to whether this witness believed that the death sentence should be involved in this type of larceny case? Wasn't that the question?
MR. WOOLEYHAN: My question, Your Honor, was -
JUDGE BRAND: Wasn't that it.
MR. WOOLEYHAN: No, sir, an opinion -
JUDGE BRAND: Wasn't that it.
MR. WOOLEYHAN: Yes.
THE PRESIDENT: What I would like to know is whether you are asking the witness's opinion as to the proper interpretation of a law or whether you are asking his personal opinion about that matter.
MR. WOOLEYHAN: I am not asking the witness as to his opinion on the interpretation of the law.
THE PRESIDENT: The objection will be sustained.
MR. WOOLEYHAN: Dr. Goeringer, in your opinion do you consider a death sentence inflicted upon a person for stealing packages intended for a German soldier at the front legally justifiable under the law against public enemies?
A Such a sentence, as I have already stated, in my view is too severe.
Q Dr. Goeringer, do you consider the crime of stealing international Red Cross packages intended for American or English prisoners-of-war a crime more serious or less serious than the same offense where German soldiers are the losers?
DR. GRUBE: Dr. Grube. May it please the Tribunal, 1 consider this question to inadmissible. This question, too, in the end turns to this witness's personal opinion. This is not a case of personal opinion.
THE PRESIDENT: That question is subject to the same objection.
Q Dr. Goeringer, in your professional opinion as a lawyer do you think that the offense of stealing packages intended for American and English prisoner-of-war to be legally justified as more serious or less serious than the some offense wherein German soldiers are the losers?
DR. GRUBE: May it please the court, again the same question has been put. The Tribunal has said that such questions are inadmissible. The entire examination is built up purely on a personal opinion and not on an expert opinion as a witness.
JUDGE BRAND: Does counsel to ask whether there is a statute which authorizes a distinction in the punishment or do you have some other purpose? *
MR. WOOLEYHAN: Evidently my purpose was not very clear, your Honor. Nor whatever the intentions that your Honor mentioned. For instance, that's clear from the statutes on their face which were introduced.
THE PRESIDENT: That question is subject to the same objection and therefore the objection will be sustained.
MR. WOOLEYHAN: That concluded the direct examination.
THE PRESIDENT: We have reached the usual recess time.
(a recess was taken)
The Marshal: The tribunal is again the session.
DR. SCHUBERT: (Counsel for the defendant oechey.)
May it please the Court, before I cross-examine the witness, I ask you to rule to delete those parts in the transcript of proceedings in which the witness expresses his opinion about the death penalty. We are not concerned with his expert testimony here. Therefore, I request to have these parts stricken from the transcript.
THE PRESIDENT: All counsel who may be interested in this examination are revised that insofar as the witness has expressed his Personal opinion on the matters inspired about, they will not be considered by the Court. They will be deleted form she record.
CROSS-EXAMINATION BY DR. SCHUBERT:Q Witness, during your direct examination you mentioned that the indictment which was submitted to you was form your own file.
A Yes.
Q May I ask you whether you still have this files in your possession?
A I believe these files with the exaction of the indictment are still in my possession. However, I cannot testify as to their necessity any more today because my practice was damaged by air attacks in February or March.
Q Did I understand you correctly that the complete copy of the decision is not in your files?
A. I cannot judge this question. It is German legal practice that the complete copies of the sentence are received only in case of clemency pleas. In this case, Barth and Associates, it was only a question of a penalty. I did not need the opinion any more.
Q. Witness, do you still remember the oral opinion?
A. I have defended so many foreigners, especially after the Prosecution indicted them before the Special Court, that I cannot remember details any more.
Q. Perhaps you can still remember the following: In the case under discussion, the defendants confessed only in part, and were convicted only to that extent.
Q. And the extent of the thefts was therefore in the trial found to be considerably smaller than it appeared from the indictment?
A. I believe to the extent--
MR. WOOLEYHAN: Witness, just a moment please. If the Court please, unless that last question of the defense was phrased as a hypothetical question which, as I understood it through the earphones, was not, the Prosecution objects to it because it is a matter of argument and evidence which has not been introduced. As I understood the question, it was a statement of facts, not a hypothetical question.
DR. SCHUBERT: May I state my opinion as to this objection?
THE PRESIDENT: First of all, please re-state your question, then we will be better able to rule on it.
DR. SCHUBERT: I asked the witness whether he can remember that a part of the defendants confessed only in part. That is, during the trial, they admitted only a part of the crimes with which they were charge. Therefore, the decision, they were regarded as convicted only in part. Therefore, the extent of the deed which is under discussion here appeared to be much less in the sentence, than it appeared in the indictment.
THE PRESIDENT: The witness may answer the question.
AAs far as I remember, I believe that the large amount of the mater that was stolen was much smaller than stated in the indictment by the police I believe, therefore, that the defendants could not be charged with all the counts and could not be convicted on all the counts mentioned in the indict:
Q Perhaps you can still remember that the defendants were convicted only for having stolen packages which were damaged already during transport.
A It is correct. There were accomplices among them. They all maintain that they stole packages which had already been damaged. A proof that they, themselves, tore up the package, could not be given.
Q Witness, you defended the Defendant Benachaud, the Frenchman, among others. Do you still remember that that Frenchman among others was accused of thefts, but they could only prove that he had stolen cigarettes once?
Q One final question, Witness. Correct me if I misunderstood you. You appeared before the Special Court frequently during war time?
A Yes.
Q You probably appeared, also, before other Special Courts or other State Courts beside Nuernberg as a defense counsel.
A. Yes, in Munich, in Vienna and Berlin.
Q. From your practical experience and from the cases which you could read in the legal journals, do you know that in so-called thefts from the field posts or A.P.O's, mail addresses of the A.P.O's the death penalty was in effect since the beginning of the war regularly, that is, it was constantly applied in jurisdiction, that is, that the death penalty was involked in cases where there were relatively extensive thefts and if the attitude of the thief was regarded as particularly despicable?
A. This opinion is known to me. However, it docs not change my personal opinion about capital punishment.
DR. SCHUBERT: Thank you.
Q. (By DR. SCHILF for defendant Klemm): Witness, I want to ask you, during the direct examination -
MR. WOOLEYHAN: If the Court please, may the prosecution at this time ask for a general ruling for our guidance in the future as to the Court's policy on the question of whether or not defense counsel representing clients, who have in no way connection to the witness' testimony at hand, whether or not such defense counsel will be permitted to cross-examine, in the interest of expeditious trial?
THE PRESIDENT: Is the Prosecution asking for a ruling in this matter or asking for a ruling generally?
MR. WOOLEYHAN: We are asking for both, but with most emphasis on the latter, the general rule for our guidance in the future.
THE PRESIDENT: It will be sufficient to make a ruling on each matter as it arises. Dr. Schilf, state to the Court in what way your client is affected by the testimony of this witness so far as he has testified?
DR. SCHILF: May it please the Court, the witness has in the direct examination, declared in the direct examination that the Special Court here in Nurnberg in regard to thefts at the field post was of the opinion that the thief would be punished particularly severely because it could be a greeting from a soldier to his home or vice versa. He also testified about the case, Barth, and he was asked whether he considers one case to be more severe than the other.
I want to ask him only one question to the effect how two action which the Prosecution used as a comparison, legally according to German Penal Criminal Code how they can be qualified or classified and into what penal framework of crime, into what general framework of penalty these two crimes are according to the criminal code? This question is of interest to all defendants because we are concerned with finding out that these two cases which have been compared, quite different penalties are prescribed in the criminal code. Thus the witness is supposed to say only which legal order according to the criminal code, is to apply in these two particular cases, should be applied.
DR. GRUBE: May it please tho Court, may it please the Tribunal, may I point out another important matter? All of the defendants are, as is well known, charged not only with the deeds they committed themselves but also because of conspiracy. This therefore leads up that all of the defendant are also charged with the deeds that another one committed. Therefore I believe that you have to permit everyone to ask questions of every witness.
THE PRESIDENT: We will rule on matters as they arise. The question be answered.
BY DR. SCHILF:
Q. Witness, you have already heard my question when I told it to the Tribunal. May I now ask you to answer it?
A. To answer your question I would first have to have the two indictments before me. I am not in a position to answer them this way off-hand.
Q. I don't think that will be necessary if I give you a short concrete statement of the facts.
A. But then I cannot answer these two specific cases, in regard to these two cases.
Q. In the first case there are the following facts in the case. A woman is employed by the post office to hand over letters. When she is employed she is obliged for her appointment to the Chief of state, Hitler. Further she is told that she will now be in the capacity of a civil servant in regard to legal matters. After she began her service for the post office during the course of a considerable tine, she has opened about fifty parcels from the field post, destroyed the wrapping and kept the content.
Thai is the case of a typical theft of the field post, a field post theft. How is this deed to be classified according to the criminal code of procedure, if you are in a position to state the legal rulings?
A. It is obviously as follows, that the defendant has stolen quite a large number of field post packages and that according to the regulations of the law, I can't at the moment tell you which ones, that according to the law she should receive a rather severe penalty. Even if the case actually should have taken up and if the Court -
Q. Witness, may I interrupt?
A. Yes, you are welcome.
Q. I did not ask you what the facts in the case are. I only want the ans war. This case, this concrete case is theft, or whatever you call it according to the German usage. I only want the legal qualifications without regard to the circumstances.
Q. Well then, you just have to read no the law which I can apply in the case. There is doubtlessly field-post theft.
Q. Is it really theft? Rather isn't it embezzlement? Will you please answer, Witness? According to the facts in the case, a short concrete description, it is so clear that description, field-post theft. It isn't a legal description.
A. I did not regard it as such at the moment but only such as it was described in general.
Q. But, witness, I just asked you for the legal qualification, the legal, under what law it comes legally?
A. I don't have to give you a legal code.
Q. It is obvious it is embezzlement. Will you please clarify this to the Court.
A. That is why I an just asking you.
MR. WOOLEYHAN: May it please the Court, the answers of the witness in the last five minutes have not been elicited by cross-examination of the witness but have been stated as a matter of argument by the defense counsel.
This argument and supplying the answers by the questions themselves is strenuously objected to.
JUDGE BRAND: Let me, for the purpose of only eliciting the facts, tender a bit of assistance to counsel for the defense. Witness, does an indictment for stealing from the field post of packages addressed to German soldiers come under the same statute us the statute -
THE WITNESS: Please, I do not understand.
JUDGE BRAND: Suppose that there are two indictments. One indictment is for stealing from the field post packages for German soldiers. The other indictment is for stealing a Red Cross package addressed to an American prisoner of war. Do both indictments come under the same penal statute or do they not? That is counsel's question reduced to its lowest terms.
THE WITNESS: At the moment I cannot decide that because I do not have the text of any laws before me.
THE PRESIDENT: The witness has said he cannot answer your question, and counsel may propound another, but before the witness answers we will rule on it.
DR. SCHILF: If the witness without having submitted a legal code to him cannot answer the question, I do not want to ask any further questions.
MR. WOOLEYHAN: The Prosecution feels that it can answer the last question propounded from the bench, but before attempting to do so it will first be necessary to offer the Barth case, Document NG-620 into evidence as Exhibit 190.
THE PRESIDENT: You are offering that exhibit, are you?
MR. WOOLEYHAN: We are.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: Now, merely by way of inviting the Tribunal's attention to evidence already introduced and accepted, we note that on Page 12 of Document Book 3-E, which is the indictment in the Bart case which was just introduced into evidence, we find that the first four defendants in that case, namely, Barth, Bernachaud, Langfritz and Schwarz were indicted on the basis of crimes violating the statute against public enemies.
We also invite the Court's attention to the document beginning on Page 8 of the same book, the Sponsel case, namely NG-750, and find that at Page 10 of that document in the plea for clemency entered by Dr. Ernst Escher, the defense counsel for Sponsel, he states, "Plea for clemency concerning the execution of sentence on Margarete Sponsel convicted of a crime against the law concerning public enemies." The Prosecution therefore submits in answer to the Tribunal's question that both crimes were countenanced at least in the main under the same statute.
May the Prosecution ask that the witness be excused? We have no redirect examination.
THE PRESIDENT: There being no further questions on the part of either the Prosecution or the Defense, the witness may be excused.
(Witness excused.)
MR. WOOLEYHAN: Turning now to Document Book 3-H -- By way of introduction to the first document in Book 3-H we invite the Court's attention to Page 37 of Document Book 2, a statute found on Page 37 of that English book, entitled, "1941 REICHSGESETZBLATT, Part I, page 549.
Law Changing the Criminal Code Of 4 September 1941 The Criminal Code will be supplemented and changed as follows:
Article 1 The dangerous habitual criminal (Article 20a of the Penal Code) and the sex criminal (Article 176-178 of the Criminal Code) are subject to the death penalty, if necessitated for the protection of the national community or by the desire for just expiation."
Signed, "Headquarters of the Fuehrer, 4 September 1941 by Adolf Hitler as Fuehrer and Reich Chancellor, by Reichsmarshall Goering as President of the Ministerial Council for the Defense of the Reich, by Dr. Schlegelberger as Reich Minister of Justice in charge of the Ministry, also by Minister of the Interior Frick, and Reich Minister and Chief of the Reich Chancellery, Dr. Lammers.
Turning now to the first page of Document Book 3-H, Document 719 -
THE PRESIDENT: Will you repeat the page, please?
MR. WOOLEYHAN: It is the first document in Book 3-H, your Honor, Document 719, beginning on Page 1. May I inquire of the tribunal if 719 has been inserted in their books?
THE PRESIDENT: Yes.