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.
MR. WOOLEYHAN: The first seven pages of Document 719, and the first eight pages of the German book, we will not read but describe briefly what they purport to be on their face. These first seven pages in the English book cover a period of some four months between February and May 1944 involving an exchange of correspondence between the Chief Public Prosecutor at Stuttgart and the Reich Ministry of Justice on the question of whether or not Karl Klauzer, at that time in prison in Stuttgart, should or should not be indicted.
There is also mention in these first eight pages of the proposal of the Chief Public Prosecutor in Stuttgart pursuant to an indictment which he is serving against both the aforementioned Karl Klauzer and another person named Klausner. The prosecution proposes to ask for the death penalty for both Klauzer and Klausner by reason of an attempt that these two men made to escape from the prison in Stuttgart on 21 April, 1%1. The next portion of this indictment, of this document logically following the introductory material which I have just described begins on Page 17 of the English and 21 of the German. There we find the verdict of the Special Court in Stuttgart in the criminal proceedings against Karl Klauzer and Hans Klausner for crime of violence and other crimes. The Special Court for the jurisdiction of the Court of Appeal in Stuttgart in the session of 9 March 1941, in which participated as presiding judge President of the Senate, Cuhorst, and other officials which we will not name, after a conference ruled as follows:
"Sentences are being passed against:
The defendant Karl KLAUZER for a crime against Paragraph 1 of the Law concerning the safeguarding of legal peace, in conjunction with severe mutiny; the defendant Hans KLAUSNER, as a juvenile arch-criminal and violent-criminal, for a crime against Paragraph 1 of the Law concerning the safeguarding of legal peace, in conjunction with severe mutiny.
That is, the defendant Klauzer was sentenced to penal servitude for five years, and the defendant Klausner is sentenced to death.
Skipping to page 26 of that verdict to the Roman numeral paragraph II. "The criminal act of the defendants." This is part of the Stuttgart Special Courts findings in this case. This is found on page 36 of the German's. It reads as follows:
II. The Criminal act of the defendants.
1) The previous history of the case.
After his arrest at Stuttgart the defendant Klausner was taken to the cell 16 of the Bad Cannstatt branch of the prison for defendants awaiting trial, in Stuttgart. There he met Klauzer who also awaited trial. Both told each other about their offenses. Klausner expected a very heavy sentence and, therefore, decided at all events to escape from prison. Klauzer who considered his penalty of 2 years' imprisonment as unjustifiably hig, declared himself willing to cooperate. Two other prisoner who formerly stayed in his cell, had informed him once of a plan for escape, according to which the head prison-guard should be enticed to enter the cell and be over-powered there. This plan he imparted to Klausner. They discussed it in every detail. According to it the prison-guard, during his morning inspection and whilst the 2nd prison-guard was supervising the exercise of the prisoners in the prison yard, should be held by one and the other one should knock him down from behind with the water-jug. The defendants were convinced that already one blow well-delivered would be sufficient to make the prison-guard unconscious. They also counted upon a fatal injury, tried to avoid this, but, at all events, were willing to put up with it. As they agreed that in case they succeeded in their escape they had at call cost to get away from Stuttgart as quickly as possible and required money, they also considered this problem. Klausner suggested to attack the rural police sergeant in Schwaikheim, to take his arms, his uniform and his motorcycle and then to assault his former employer in Schwaikheim, whom he suspected in possession of a large sum of money. As they needed fire-arms for the attack on the gendarme, they planned that Klauzer should search the quarters of the prison guard before they left prison.
It was clear to both of them that possibly there would be some dead bodies in the course of this project which they had planned even if they preferred it, as Klauzer expressed himself, "there were no dead bodies right away."
However, as they were afraid of the consequences if their attack on the prison guard failed, they at first tried to escape in a manner which was not so dangerous. Under the instruction of Klausner who acquired certain experience in the prison in Heilbronn, they started to break a hole in the exterior wall of the cell on the evening of 20 April 1941; however, they soon struck wood which made a further perforation impossible. As it was certain that they had to expect that this attempt to escape would be discovered, they decided to carry out the original plan in any case on the next morning and to knock down the prison-guard on his tour of inspection of the cells, to seize Ms keys and, if possible, also his uniform.
On Monday, 21 April 1941 they prepared everything before the usual inspection of the cells which, as they knew, would take place during the prisoners' walk in the yard. They arranged the table and chairs in such a way that the prison-guard, after having entered, had to stop for a moment in the center of the room. Then KLAUZER went for the earthen jug which was to serve for the blow, took it from the cupboard near the window, emptied the remaining water and put the jug in the corner of the cell near the door.
When STIBBE, senior-prison-guard, entered the cell for inspection about 8.15, the defendants had occupied their positions, as agreed. KLAUZER, on the entry of the official, got up from his chair, remained standing in front of him and rave KLAUSNER a signal by nodding to him. KLAUSNER whom STIBBE had already passed, had already seized the jug, lifted his arm up high for striking and knocked with all his force on the back of the head of the prison-guard from behind, taking care, in order to obtain a better effect, to hit with the lower edge of the jug. Nearly stunned by the force of the blow the official turned to the left in direction of the door, either with the intention of attacking KLAUSNER or in order to get free. At this moment KLAUZER went after him holding on to his right arm. Then KLAUSNER delivered three further blows with the jug and once again hit STIBBE on the back of his head and twice on the temple bone. At the last blow the jug broke. The prison-guard who had immediately started to shout for help, could free himself and escape into the corridor. KLAUSNER rushed after him, after quickly breaking off a leg from a chair in the cell and taking it into his hand. It could not be safely established, whether he beat the prison-guard who had collapsed for a short time, with the leg of the chair. He, himself, denies this. Probably he had been stopped by other prisoners who came across his way and opposed him.
Answering the cries for help of the head prison--guard STIBBE, the other official on duty, the chief administrator NESTLE, had quickly locked up the prisoners who had been in the yard and rushed to the assistance of STIBBE. On his appearance, the defendants, one of them, KLAUZER, had not left the cell all the time, gave up all resistance and let themselves to be taken into separate cells.
The injuries sustained by the senior prisonguard STIBBE were serious. Today STIBBE is still suffering from headaches and giddiness.
All these facts are established by the confession of the defendants and by the statements made by the witnesses STIBBE and NESTLE.
The only excuse offered by the defendants was that they had acted in youthful frivolity. It is, however, an established fact that they had carefully premeditated their act and that they had fully been aware of the punishment they had to expect, as they had already acquired a certain experience in criminal cases.
KLAUZER, who comes from a good family, was a good scholar and until 1940 he had not become guilty of any crime. He is a soft character, perhaps a little frivolous and not excessively keen on work. Nevertheless he proved that he is able to work even under favorable conditions. Having never become guilty of a crime, he one day suddenly became punishable and did not pick up courage to turn back. His punishable offenses had nothing to do with anything like violence and at best hint at certain inclinations of a swindler, but not those of a violent criminal.
It is he, who first developed the general plan for the attack on the prison guard. But this plan did not even originate from him, all essential details were Klausner's ideas. He also refused to strike the blow with the jug, although, being taller than Klausner, he would have been more suitable for that purpose, and when the first attack had failed, he desisted from any further action.
No doubt, Klausner, on the other hand, had inherited unfavorable characteristics from his father. Instead of going to school or doing his home-work, he gadded about in the street in his early youth already and refused to obey any order. Very early he committed robberies and instigated others to do likewise. Soon he did not restrict himself any longer to occasional robberies, but he proceeded deliberately and did not shrink from applying violence against persons and things. When committing his last thievery, application of violence was taken into account quite consciously as a means to make booty. His punishable offenses thus exhibit a rapid plunge into violent and habitual criminality. Despite his youth he is a dangerous habitual criminal. The formal and material prerequisites of par. 20 a, section 2 of the Criminal Code are given. All educational measures and means of punishment applied against him turned out to be a failure. After his latest penalty which with regard to his age was a heavy one, he immediately made himself some tools for burglary and a few months later again committed punishable crimes. This proves that a change for the better cannot be expected in his case."
At this juncture may we interrupt the presentation to point out that on pages 22, 23, 24 and 25 of this document are found enemerated the past crimes committed by the defendant concerning whom we are now reading, the defendant Klausner. We won't enumerate them here but they are set out on the pages I named. Continuing "In the case for which he is now on trial he worked out all the essential details of the plan of attack and flight."
Skipping to commence with the next to the last paragraph at page 29 of the English, on page 42 of the German's:
"He is a juvenile arch-criminal, a dangerous habitual and violent criminal. On the other hand, in the case of Klauzer the prerequisites for the application of the decree against violent criminals are not given, insofar as he can not be considered as such a type of criminal according to his personality and his whole development.
He probably has a tendency to be a swindler, but is in no way inclined to violence and without Klausner's influence he would never have committed this offense."
"Paragraph Roman numeral IV, Award of Punishment. When awarding the punishment in the case of the defendant Klausner, the following consideration was decisive for the court: Klausner, whose character can be improved by strict discipline, must be given an opportunity in time, despite the seriousness of his deed, to earn his livelihood again and thereby to start a new life."
Going down to paragraph 2: "In the case of the defendant Klausner the punishment was absolutely determined by the decree against violent criminals. Pursuant to this decree he was sentenced to death. To emphasize his personality, his former life and his criminal act, he was deprived forever of civic rights which he, as a juvenile, really does not possess." This was signed by the Presiding Judge, "Cuhorst; certified Stuttgart, 16 May 1941."
On page 14 of this same document is found a communication from the "Public Prosecutor in Stuttgart; to the Chief Public Prosecutor at the Reich Supreme Court, concerning a nullity plea in the criminal case against Hans Klausner; on 9 May, 1941, the barber apprentice Hans Klausner, born on 17 February, 1924, was sentenced to death as a juvenile dangerous criminal and a criminal of violence by the judgement of the Special Court at Stuttgart. Through brief of 19 May 1941 the defense Counsel of the condemned person has asked me to file a nullity plea."
On the following page the prosecutor goes on to say: "I submit the files for a competent resolution. I consider the mullity plea without foundation."
On the next page, page 16, which is 20 of the German, this same Public Prosecutor concludes: "In spite of this in my opinion unimportant weakness in reasoning, I do not consider the judgement unjust but just. Especially on account of my personal impression obtained during the main hearing I can only confirm that Klausner represents the criminal type of a precocious juvenile criminal characterized by an especially objectionable criminal character in regard to whom the death penalty asked for by the court representative appeared to be necessary.
Therefore, I do see no reason to support the nullity plea. Besides, I am of the same opinion as the District Court Public Prosecutor that the postponement of the execution is not warranted at this time."
On page 8 of this document, which is page 9 of the German, appears a clemency petition, addressed to: "Through the offices of the Chief Public Prosecutor; to: The Reich Minister of Justice in Berlin." I might add that this clemency plea was addressed through the office of the Chief Public Prosecutor in Stuttgart. "Subject: Clemency petition in criminal case against Hans Klausner." On the right hand of the page appears a handwritten note: "I share the opinion of the," -- the remainder of the sentence illegible. "In spite of his youth I believe the extermination of the incorrigible and publicly dangerous convict to be a necessity."
On the next page, page 9, which is page 10 of the German, "I am now submitting the files for a decision regarding amnesty."
"From his father's side who runs a small barber shop in Pforzheim, the convict is congenitally trained. According to the investigations of the Special Court the father has a bad reputation, has a criminal record because of seize and concealment of stoled goods; he is a periodic drinker and pays little attention to his family. The mother, it is true, is an industrious woman, but partly for lack of time failed to educate the boy properly. At the early age of ten years he was caught committing shop-lifting in a department store. In the course of time the convict showed an ever increasing incredible disposition to steal."
Skipping to the next paragraph: "Between 7 and 12 April 1941 the convict committed quite a series of grave and very grave burglaries together with other teenagers making use of picklocks and other tools used for criminal purposes. They broke into dwellings and business premises, climbed into buildings, pilfered motorcars, and in two cases used them for a ride.
On account of his crimes and of the penalties therefore inflicted, the convict did not in a single case conclude his apprenticeship, neither as a barber nor as a watchmaker, nor later, again as a barber with another master. Lastly he was in Schwaikheim, ran away without reason after having robbed his master and, following this, he committed the above mentioned crimes."
Skipping, to the last page of this clemency petition, paragraph 5: "The presiding judge of the Special Court and the Court itself are in opposition to an act of grace. As for myself, I concur in these opinions In spite of his juvenile age the convicted clearly and repeatedly demonstrated that he is an incorrigible desperate criminal who not only is completely lacking inhibitions, but, furthermore, is prepared to make use of violence of any kind in order to attain his goal. Therefore, he is a permanent danger to the community of the people, which danger is not even fully eliminated through prison walls, as this case proves."
This case is concluded by a certificate beginning on page 11 of the English version, which is page 13 of the German. This is a communication from the Chief Public Prosecutor of the Special Court in Stuttgart, through the Attorney General in Stuttgart, to the Reich Minister of Justice in Berglin; stamped "immediate, urgent, death sentence; concerning criminal action against Hans Klausner for the Crime of Violence, among other things."
"With reference to my clemency report of 27 June, 1941, I enclose a note on the point of view of the Chancellery of the Fuehrer of the NSDAP, Office for Clemency Matters; forwarded to me subsequently by the Minister of Justice to supplement an appeal for pardon submitted directly to your office by the mother of the convict. Upon my inquiry to the convict's father, if - in case the sentence was executed - he would take care of the dead body for a simple funeral without any ceremonies, he expressed the wish to have the body cremated in Stuttgart and to have the ashes sent to Pforzheim for burial in the local cemetery.