Q Just a second. Witness do you remember that exactly? Was it not another gentlemen from the bench who read out your indictment to you?
A It was an interpreter. It was read to me in Czech.
Q I believe that. The interpreter, therefore, was there too. As far as you remember there were three judges, the interpreter, your defense counsel, and yourself?
AAltogether there were five gentlemen there on the bench, probably three behind the table and one other gentleman on either side of the judges. Who of the two gentlemen who were sitting at the side of the judges read out your indictment to you?
A The one who sat on the right side.
Q The one who sat on the right side. Who was he? Was he perhaps the prosecutor, or was it another gentleman?
A I believe he was the interpreter.
Q. Well, you think ti was the interpreter. Well, did you get a chance to speak up for yourself at the trial?
A. I was only able to answer questions which had been put to me.
Q. Were you able in your reply to say everything you wanted to say?
A. When a question was put to me, I answered it.
Q. Did your defense counsel ask you any questions?
A. The defense counsel put no questions to me. When the Court withdrew for deliberations the Prosecution rose and gave a short address and that was all.
Q. We must find out exactly about that and see whether we can stimulate your memory. As you say, you answered questions which were put to you?
A. Yes.
Q. Who put those questions?
A. Well, I believe it was the presiding judge, or perhaps it was the Prosecutor. I am really not certain. I always got it from the interpreter.
Q. Did the Court withdraw for deliberations before the Prosecutor demanded the sentence, or afterwards?
A. At first the indictment was read out to me, then questions were put to me. Then the Prosecutor demanded a sentence.
Q. Just a second.
MR. LAFOLLETTE: Excuse me. Let him answer the question completely. I wish counsel would let him finish his answer. I haven't said a word yet.
THE PRESIDENT: If he has anything more to say then defense counsel should not interrupt until he has fully completed his answer in each instance.
BY DR. DOETZER:
Q. Continue, please.
A. I have nothing more to say about that. It is all right like that.
Q. Did your defense counsel not say anything?
A. Well, I have said that already. After the prosecutor had demanded a sentence, when the judges returned from their room, my defense counsel spoke for one minute at the maximum, and then I felt that he was pleading for a shorter sentence.
Q. In other words, your defense counsel was pleading for a shorter sentence?
A. Yes.
Q. What was the verdict?
A. The verdict corresponded to the demand of the Prosecutor.
Q. Did you receive a verdict in writing?
A. I received nothing.
Q. But the court read out a verdict?
A. Yes.
Q. As far as you can remember, what did it say?
A. It said that I was sentenced to one year imprisonment.
Q. And for what offense?
A. For the offense with which I had been charged in the indictment.
Q. Well, don't you recall the legal explanations of the court for your offense?
A. In my view, that was the shortest sentence. I had not spread any news, but because I was all alone.
Q. Witness, you said you had been charged with preparation for high treason. Did the Court say anything of the kind?
A. It was in German. I don't remember it.
Q. But it was translated for you?
A. Well, I was so excited, I have forgotten it all.
Q. You can't remember it. Well, if I summarize: you can't say for certain whether you were sentenced for preparation of high treason?
A. As far as I know, under the German law of those days, Pagegraph 180 to 183 governed cases of high treason; and 139 therefore must be concerned with some lesser offenses.
Q. Witness, do you know whether the court pointed out that the provisions under which you were sentenced had not only been introduced by a German law but also by a law of the Hacha Government?
A. They were only German laws. Naturally, they were also inforced in the Protectorate.
Q. You do not know therefore whether it was due to German orders or orders of the Protectorate Government that they were enforced in Czechoslovakia.
A. Oh, I do know. It was due to German orders that were introduced.
Q. Do you know that for certain?
A. Yes, for certain.
Q. I have to put this to you very seriously: do you know for certain whether the Hacha Government too did not introduce those laws?
A. Yes. I do know it for certain, because if the Protectorate Government had introduced such laws, in that case the Czech police would have arrested me and I would have been brought before a Czech court.
Q. I want to help you. This is a conclusion which you draw from this fact alone.
MR. LAFOLLETTE: If Your Honor, please, I object. I object first because the witness has been asked for conclusions for a long time; also, because at no part in the direct examination was this witness asked as to what were the legal grounds of his trial other than want was stated to him in the Indictment.
The witness has repeatedly answered that he was tried under German Law, and as far as the relevancy of this interrogation is concerned, I don't find that it's material to any issue in the case. Certainly, it doesn't go to the direct examination, as I recall. But I don't think it's relevant to argue with this witness as to what law he was tried under, although he has answered to the best of his knowledge that he was tried for a violation of German law. As to the fairness of who read the verdict to him and why the verdict was read to him, those are not material to the trial in this case at all. I think the issue is whether or not German law rightfully existed at that time in the Protectorate, and that is something that this witness can't testify to.
THE PRESIDENT: Naturally, the Tribunal would desire to be liberal in matters of cross examination rather than restrictive, but yet it has been apparent to the Tribunal for some time that questions have been propounded concerning the law under which he was tried, so far as he knows, and whether or not the sentence corresponded to the indictment -- all of which was necessarily so -- had to be so. It doesn't seem to me that the cross examination is eliciting any additional truths. And repeating: I don't like to be restrictive on cross examination, but it appears that you are going over the same grounds and developing laws that are apparent and obvious. Please be guided by those admonitions.
DR. DOETZLER: May it please the Court, I have only proceeded in this manner because the witness said that he was sentenced for preparation of high treason, and the discussion developed for that reason. But I will not put any further questions of that nature.
BY DR. DOETZLER:
Q. Witness, you said that from your resistance group, several other Czech citizens had been sentenced by a Special Court and that several others yet had been sentenced by the People's Court.
A. Yes.
Q. In the direct examination, I was unable to understand whether the person who was acquitted was tried by the Special court in Prague or by the People's Court in Dresden.
A. It was the Special Court in Prague.
Q. In the German translation, I then heard you say that this man who was acquitted was handed over to the Gestapo by the Court.
A. Yes.
Q. How do you know that?
A. How do I know that? Because from the court, all of us were taken to a cell and by that time we knew what our sentence would be, Curtnik had no witness against him, with the exception of one who testified that he had given him a pamphlet -- the court had no witness against him, and therefore had to acquit him. He was very glad because he thought he was going home. But just before we moved to Prague, on the way the Gestapo officials told him, "You haven't confessed anything. But that doesn't matter at all. You will be in custody for two years at least." And in consequence, he was handed over to the Gestapo again at Prague, at the orders of the Budweis Gestapo, and was then sent to Auschwitz where he died in February of 1942. His wife was informed.
Q. According to your description just now, you do not know if the court handed him over to the Gestapo?
A. I don't know how that was; I don't know. But on the same day, the supervisors were waiting for him and handed him over to the Gestapo.
Q. What supervisors were they?
A. German supervisors at the Pankrao. They were in a kind of green uniform.
Q. When you had finished your prison term, as far as I understood you, you were discharged and were not arrested by the Gestapo.
A. No. When I served my sentence I was not arrested.
Q. Were you taken into Gestapo custody later?
A. No, no more.
Q. Well then, when you served your sentence, the German judiciary no longer laid their hands on you?
A. After I had finished my sentence in January '42, I was discharged and allowed to go home, but four days later, all of those of us who had been discharged -- and there were four of us -- the fifth had died -- all of us had to go to the Gestapo. There we were told, "What you have seen, you have seen; but you mustn't talk about it. And if we meet again and hear any more about you, then you will never get back."
Q. Those words were spoken by a Gestapo official?
A. Yes.
Q. You then said that five other members of your resistance group were sentenced by the People's Court?
A. Yes.
Q. What had they been charged with?
A. As far as I remember, they had violated Paragraph 180 and 183.
Q. Do you know that because you heard it from the witness, or did you hear about it later?
A. They wrote that in their letters home.
Q. What were the sentences?
A. Tow years and three months up to two years and nine months.
Q. Prison or penitentiary?
A. Penitentiary.
Q. When did those five serve their sentences? When did they finish?
A. Four of them after the 9th of May 1945 -- that is, after the end of the war, returned.
Q. Four returned?
A. Yes, four.
Q. Had they been only in a penitentiary or also in Gestapo custody?
A. In the penitentiary, like all prisoners. When they had finished their sentence, they were transferred to a concentration camp where they stayed until the end of the war.
Q. What concentration camp?
A. I don't know.
Q. When were they sentenced?
A. In 1942. About the middle of the year.
Q. If one of them was a sentence of two years and nine months, in April 1945, he should have been in the penitentiary?
A. Oh, no, that is wrong. The prison term in 1941, after the arrest, the time in prison was counted, and when it ended only two years were left, and only the rest of that time was left to spend in the concentration camp.
Q. In your case, too, the Gestapo sentence was counted in, wasn't it?
A. Yes.
DR. DOETZER: I have finished my cross-examination.
THE PRESIDENT: Any other defense counsel desire to cross-examine this witness.
DR. GRUBE: I have one or two questions to ask the witness, Your Honor. Witness, you said -
THE PRESIDENT: One moment, please, Dr. Grube. I would like to inquire whether any other defense counsel would want to examine this witness after Dr. Grube has completed his examination. If not, we have reached the time for our recess, but in order that this witness may be excused, you may proceed with this examination if you expect to complete same.
DR. GRUBE: I have only a few questions to ask him.
BY DR. GRUBE:
Q. Witness, you said before that you had been interrogated in Munich by Dr. Arndt, the investigating judge?
A. Yes.
Q. Now, I will ask you to tell the Court what happened at that interrogation. What was said there different from which had been used during the interrogation of the Gestapo?
A. No.
Q. Will you tell the Court, please, what happened at that interrogation?
A. I was taken there by the prison warden. The investigating judge was alone in his room. There was an interpreter there who translated the questions into Czech, and because my testimony was identical with the testimony I had given to the Gestapo, everything worked smoothly.
Q. Did the investigating judge exercise any pressure on you?
A. No.
Q. Did you tell the investigating judge what treatment you had received from the Gestapo?
A. No, I did not tell him, because he did not ask me.
Q. Did you say that your statements before the investigating judge had not been identical with your testimony to the Gestapo?
A. That is a question that has not been correctly portrayed. That is not what I said. My testimony to the Gestapo was of as much importance as my testimony before the investigating judge, so there was no difference.
Q. And that you gave your testimony before the investigating judge voluntarily, for there had been no pressure?
A. Yes, he put the questions to me and I gave him the same answers.
DR. GRUBE: No further questions.
THE PRESIDENT: The Tribunal will take their usual fifteen minute recess at this time.
MR. LaFOLLETTE: There is no redirect examination.
THE PRESIDENT: No redirect examination?
MR. LaFOLLETTE: There is no redirect examination.
THE PRESIDENT: The witness may be excused.
(Witness excused)
(Recess)
THE MARSHAL: The Tribunal is again in session.
MR. WOOLEYHAN: May it please the Court, the Prosecution calls as witness one Franz Gross.
FRANZ GROSS, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath; 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.)
JUDGE BLAIR: You may be seated.
DIRECT EXAMINATION BY MR. WOOLEYHAN:
Q. Witness, would you please tell the Court your name?
A. Dr. Franz Gross.
Q. Would you briefly describe for the Court your professional education and any public offices you may have held?
A. I was born on 2 February 1908 at Darmstadt, as the son of Adolf Gross, at that time assessor and now President of the District Court. After going to elementary school and Gymnasium, I made the examination at the Gymnasium at Darmstadt and then studied law. I studied at the universities of Giessen, Berlin and Munich. In the year 1930 I passed the first examination. I got my doctor's degree, and in 1933 I made the second state examination. After that I was at the Hessian Landesband, *********** the bank at Darmstadt, and then I was at various courts, such as Bentheim Bergstrasse and at the District Court, Darmstadt. On 1 September 1937 I got a position at Amberg as Counsellor at the District Court.
At first I was not drafted because I have a weak heart. Then in June, the end of June 1942, I came to the Special Court; I was transferred to the Special Court at Nurnberg.
Q. Were you a judge at the Special Court in Nurnberg, Dr. Gross?
A. I was transferred to the Special Court as an auxilliary at first, and I was told that was so, and I protested against it.
I was told that I could do nothing against it, because he himself had not been asked, and a soldier who is drafted has to follow that also, that call, so I could not do anything else but accept this temporary assignment.
Q. While you were a judge on the Nurnberg Special Court, was your title that of Associate Judge?
A. Yes. I did the duties of an associate judge, but I believed that I was not a permanent associate judge because from the outset I was told that I would have these duties only temporarily, and it is a fact that during the entire period of this assignment to this Special Court I got per diem pay, so-call per diem pay, in addition to my regular pay. Therefore, my regular post was Amberg, and I expressly objected to a definite transfer. A transfer to Nurnberg was mentioned once, and I said I would not want to be transferred to Nurnberg. Thereupon it was not really carried out.
Apart from that, at the end of 1933, and in the course of the year 1934, I still worked at the court of Amberg, as a local judge, that is, in minor cases; cases which originally had seen before the Special court, but then because they were less important had been before the Special Court, but then because they were less important had been separated and returned to the local court marked as local cases, and which were then tried before the local court. The local court -
JUDGE BRAND: Just a moment. When did you start serving as a temporary judge in the Special Court at Nurnberg; the date?
A. It was the end of June, 1942, Your Honor. The local court -
JUDGE BRAND: That is all I want to know.
BY MR. WOOLEYHAN:
Q. Dr. Gross, after you came to Nurnberg as a temporary associate judge at the Special Court, namely, in 1943 -
A. 1942.
Q. I am speaking of another date at the moment, namely, in 1943, a case was brought before the Nurnberg Special Court involving two defendants named Kaminzka and Doven. Were you associate judge on that case?
A. Yes, I was associate judge in that case; I can remember it. Kaminzka was a Polish woman and the co-defendant Doven -
JUDGE BRAND: Mr. Witness, why don't you wait for the question to be asked, and then answer the question?
Q. That case has been introduced as evidence before this Court as Exhibit 201, but in order to discuss it, may I ask you if you remember briefly the essential facts in the case of Kaminzka and Doven.
A. Yes, I remember the essential facts. The defendant Kaminzka was a Polish woman and the co-defendant Doven was a Ukrainian; both had been working with German peasants in Uffenheim; the had been ssent there and they had sexual relations, and Kaminzka also gave birth of a child.
If I remember correctly, she brought it in the spring of 1942 to Poland; when she came back from Poland she asked for the money for the trip to Poland from her employer; the daughter of the employer refused that; and thereupon the employer because she insisted called a German soldier by the name of Wanner to assist, and Kaminzka hit that German soldier in the face; thereupon he slapped her. After that there was a row; in the course of that turmoil Wanner said to Kaminzka, or rather to Doven that he should go away. Kaminzka ran out of the room and took a hatchet, but she didn't come to use it. A short time thereafter -- all that occurred in the evening at nine o'clock -- a short time thereafter the German soldier left on his bicycle. Kaminzka came after him, and Kaminzka took a heavy stone -it weighed more than half a pound, but she didn't hit him. On the next day -
Q. Dr. Gross, when this Kaminzka woman took this stome that you described, did she threw it at the German soldier?
A. Yes, she threw it after the German soldier, but she didn't hit him; she missed him. On the next day the German oberwachmeister came in order to arrest her; he found her in the field where she worked and took her along; she tried to resist, and her boy friend Doven ran after her, although the German official had told him not to. The gendarme wanted to put Kaminzka into a prison cell, but Doven held her with both arms; finally the sergeant succeeded, with the help of others, to arrest Kaminzka and bring her into the cell. That is according to my recollection of the facts.
Q. Dr. Gross, were Kaminzka and Doven Polish citizens?
A. Kaminzka was a Polish woman, and in the year 1939 before the war broke out she lived in Poland, and Doven was a Ukrainian.
Q. Dr. Gross, I gather from that -- and please correct me if I am wrong -- that neither Kaminzka nor Doven were citizens of the German Reich; is that correct?
A. That is correct.
Q. Now, Dr. Gross, you have said that both of these defendants, namely, Kaminzka and Doven -- one a Pole, the other a Ukrainian -were doing labor -
A. Yes.
Q. In the Reich, is that correct?
A. Yes, that is correct.
Q. During the war, Dr. Gross, that is between 1939 and 1945, did you know at any time that Poles were being brought forcibly into the Reich for labor?
A. No, at that time I did n't know; I only found that out later.
Q. When did you find that out?
A. Well, I could not say that accurately; I believe it was after the end of the war when I found that out.
Q. You have described the act of the defendant Kaminzka -- as having thrown a rock at a German soldier, which missed him.
A. Yes.
Q. Would you say that that act of Kaminzka was an assault with a deadly weapon within the meaning of the German statute against violent criminals?
A. At that time already I was of the opinion that was not a crime in the sense of a violent act; that it should not be punished with death; at that time already I thought that sentence was inhuman and I objected to it; but with Oeschey there were no deliberations; there were no votes taken.
Q. One moment, Dr. Gross, if you please. You mentioned the name of Oeschey.
A. Yes.
Q. Was he a judge in that case?
A. Yes, he was the presiding judge of the case.
Q. Then, in your opinion, or rather let me withdraw that. You have said that at the time Kaminzka was tried you did not believe that the violent criminal statute made death mandatory for her act;
is that correct?
A. No. At this time already I was of that opinion that the death penalty was not applicable for that case. I also told Oeschey about my objections, my misgivings; and he explained that as Rothaug had done so in similar cases that it was a necessity for the state and nation that particularly against Poles severe measures had to be taken. It had been Rothaug who first mentioned to me that it would be sufficient if a Pole just raises his hadn against his employer to sentence him to death. In my opinion, Oeschey in that case of Kaminzka considered himself the execute of the racial politics of the Third Reich, which during -
DR. DOETZER (Attorney for Defendant Oeschey):
May it please the Tribunal, I object on the ground that these are opinions which the witness states, but not facts, about which he has been asked.
A. If I may say something to this, I have to say everything, haven't I? I also have to describe the opinion I had at that time; I have been asked to do so.
THE PRESIDENT: The witness, being a judge, is in a different situation, and he is expressing his opinion of the case that was then before him. I see no reason why he can't do that.
BY MR. WOOLEYHAN:
Q. Dr. GrOss, with regard tO the act of the defendant Doven which you have described, namely, that of holding or physically confining for a moment the defendant Kaminzka outside her prison cell -at the time that this case was tried, did you consider that an act which made death mandatory under the Public Enemy Statute?
A. No, I did not consider this an act to be punished by death, since there were relations between the two defendants; it could be quite understood, humanly understood that Doven tried to hold Kaminzka.
I consider it doubtful whether this could be even considered resistance against the authority of the state. At any rate, his act was neither punishable by death.
Q. From your observation at the trail of this case, of Kaminska, and from anything that the presiding judge at that case, Oeschey, may have told you, what appeared from those observations or opinions expressed by Oeschey, if any, as to his judicial attitude toward Poles?
A. Oeschey, in this matter, followed Rothaug precisely; he continued the tendencies established by Rothaug, that in the case of even minor offenses, the most severe measures had to be executed against Poles, and in the case of Kaminsak that was clearly expressed. At that time already, I had the impression that Oeschey, himself, saw quite clearly that the case-- the facts in the case did not suffice for a severe penalty. That was why he answered to the objection which I made by explaining that other high tribunals, I believe he also spoke about the Supreme Reich Court in similar cases had handed down similar verdicts, and that in the particular case -- the throwing of the rock, as it was here, was considered a violent crime. I mentioned this, because Oeschey otherwise did not even care to have any long discussions with me; he did that, only if it was a serious case in which he was further interested. If he wanted to pronounce a death sentence, and had to speak on my part or any other associate judge's part, there was some resistance to be expected; then otherwise he would not have any discussion.
Q. Dr. Gross, sometimes in 1943 or 1944, while you were a temporary associate judge on the Nurnberg Special Court, do you remember a case tried by that court involving two defendants named Jeannie and Sala?
A. Yes, I remember that case very well.
Q. One moment, Dr. Gross, in that case of Jeannie and Sala, which you say you remember, were either one of those defendants citizens of the German Reich?
A. No, both of them were foreigners; if, I remember correctly Jeannie had French citizenship and Sala, Italian.
Q. Can you tell us the essential fact of the case of Jeannie and Sala?
A. Yes, I can do that. I remember that both defendants were charged with three burglaries, which they were alleged to have committed in Nurnberg during the night. They only confessed one burglary-- however, rather, only one burglary could be proven; two other burglaries they denied emphatically. And, in that case it was a definite case of circumstantial evidence against both of them. Together, they were living with a man by the name of Bertran who was a criminal and who had been killed while trying to escape. In this apartment they had together, two objects were found -- a towel and a small cotton bag, and these two exhibits came from these two burglaries.
Q. You state that in the apartment where Jeannie and Sala lived, there was found a towel and a small cotton bag; was that all that was found in the possession of the defendants? Just answer yes or no.
A. I cannot say that now, at this moment--I cannot remember any other exhibits at the moment.
Q. At the trial of Jeannie and Sala, were any exhibits offered by the prosecution as having been found in the defendants possession other than the towel and the small cotton bag?
A. No, no. In the two burglaries which the two defendants denied, a large number of objects had been stolen, but none of them were found, that is, not with the two defendants--with the exception of these two exhibits, the piece of cotton and the towel, if I remember correctly.
Q. In view of the fact that only those two exhibits that you mentioned were offered as evidence at the trial, what were the articles or goods that Jeannie and Sala were accused of having stolen?
A. Oeschey considered sufficient that he had the two exhibits.
Q. One moment, you mentioned Oeschey again; was he also the presiding judge in the case of Jeannie and Sala?
A. Yes, also in the case of Jeannie and Sala, Oeschey was the presiding judge.
Q. Continue with your description of the goods that Jeannie and Sala were accused of having stolen.
A. There was quite a number of goods, wines, and liquors that had been stolen, and that had considerable value. Oeschey was of the opinion that these two were also the people who had committed the two burglaries on the basis of the two exhibits. I had serious misgivings, and I emphasized these misgivings but Oeschey only smiled.
Q. One further thing, Dr. Gross, under what statute were these two defendants indicted?
A. The decree against public enemies.
Q. And, what was the sentence that each received?
A. Both of them were sentenced to death. I remember very well that during the deliberations, if that could be called a deliberation, I had specifically stated not only in that connection but in the connection with other circumstantial evidence, it would be better to acquit ten defendants by mistake than to sentence one to death by mistake. However, Oeschey's mind could not be changed, and he insisted.
Q. Dr. Gross, as an associate judge on that case, were you satisfied that the acts of burglaries of such a serious nature as to bring them within the public enemy statute, justifying a death sentence were actually proven?
A. No, I was of the opinion that only one burglary was actually proven, and that would not be sufficient in order to try the defendants under the public enemy decree and sentence them to death, but Oeschey, as I have already explained, did not need my objections concerning the circumstantial evidence at all. I told him at that time specifically that even if these two exhibits came from the two burglaries and that their owner recognized them as their property, it could be that the two burglaries had been committed by the man who had already been killed. It could be quite possible that the burglaries had been committed by Bertran alone, and upon which he said-
Q. Dr. Gross, may I interrupt one moment, please. On this Jeannie and Sala case, did you act as a reporter for that case in addition to being an associate judge, by that I mean did you write the opinion?