-1-7 referring to.
Witness, do you know the Englart case?
A. I do not know the Englart case. The case was on the 24th of March in 1943 under the presiding judgeship of District Court of Appeal Counselor Judge, Dr. Stuber. I was not presiding judge.
Q. Witness, I now shall discuss the second case. I shall quote the figures of the individual cases in order in each case to enable the Tribunal and also the prosecution to order themselves more quickly.
Court No. III, Case No. III.
Second case on the 5th of May, 1943, a certain Franz Kudelka was sentenced to death by the Stuttgard Special Courts. Do you still remember what was the situation in that case?
A. Franz Kudelka was sentenced to death in Ulm on the Danube on the 5th of May, 1943, while I was presiding judge. Kudelka was probable a Czech citizen but he was from Vienna. He was in charge of the baggage section in the railroad station in Ulm on the Danube. For months, under the protection of the blackout, Kudelka robbed the baggage cars of the trains; by that he caused damage of about 30 thousand marks and among other things he repeatedly stole Red Cross baggage of fallen soldiers and valuable baggage, suitcases of Dutch officers who were prisoners of war and robbed them.
The Kudelka case was up to that time the must serious case of train robbery that had occurred in Wuerttemberg and the Court, in accordance with the prevailing jurisdiction, on the basis of the public enemy decree because of theft, sentenced him to death.
Q. May I continue, witness? Case Number 3--the witness Eberhard Schwarz on page 2,261 of the transcript, 2,274 and 2,299 of the transcript on Saturday the 16th of June, 1942, mentioned the case Janosz Leszinski which was tried on the 16th of June, 1942. Can you still recall the details regarding that case?
A. According to a newspaper notice, which was submitted to me some time ago, Janosz Leszinski born on October 20th, 1914, on Saturday, the 16th of May, 1942, was sentenced in Stuttgard because of instigating sabotage and other things --to death. I do not know any more about that case. In 1942 and 1943, I never tried cases on Saturdays in Stuttgart. Due to that fact alone, I have to conclude that I personally was not presiding judge.
In this case, there is probably a misconception regarding the presiding judge, the same that occurred to the witness Schwarz in the Englart case and in the death sentence, listed under number 97 regarding the death sentence in the Pfaud case. Also in the Pfaud case we now have evidence to the effect that there was another person presiding judge in this case.
Q. That is all you have to say about it? I assume that in that connection you also want to refer to what you said already Friday afternoon in regard to the date of the sentence and the submission date appearing in the list. In other works, that from the date of the submission of the case, one may conclude as to the date of the sentence but that one does have to differentiate between ****s which were dealt within Stuttgart and those that were dealt with outside of town, is that correct?
A. According to the facts which I have found out the date of the sentence in the Leszinski case, the judgment date was the 16th of May, 1942, and that is correctly stated. Also the date of the Pietra case which is in the death sentence list made up by Schwarz is stated absolutely correctly.
Q. May I address the next question now? The former prosecutor Rimelin on page 2261 of the transcript discussed the case Meicher and Swarowski. Was that a case of murder? As a special cruelty toward the defendant you submitted a skull during the trial, the former prosecutor said. Can you explain this? What was it all about?
A. The defendant Meicher and Swarowski had committed murder and robbery on a gardener in Stuttgart. During the trial, the expert, in order to show the extent of the destruction of the skull, in order to prove it, submitted in a glass bowl pieces of skull which he had during the official post morten taken from the body of the murdered subject.
In cases of murder, official court post mortem is prescribed in the rules of procedure. In this post mortem, not the court where the case is to be tried but the investigating magistrate and the prosecutor are present. The record of the post mortem, however, cannot be read during the main trial; by law it is required that the officiating physician gives his expert opinion orally in court.
In support of his expert opinion, it may be necessary to submit prepared parts of the corpse. The procedure used in the Meicher and Strowbowski case is absolutely customary. And, above all, every prosecutor knows this from years of experience; any cruelty or lack of feeling toward the defendants has nothing to do with this at all.
Q. Now, case No. 5. On the 12th of November, 1942, while you were supposed to have been presiding judge, death sentences were allegedly pronounced against the defendants Milch and Margethei. You remember the testimony of Eberhard Schwarz--pages 2262, 2267, and 2268 in the transcript. What was this case about?
A. The defendants Milch and Margethei were international criminals, whose citizenship could not be determined with certainty. The defendant Margethei, supposedly of Hungarian descent, was a prisoner who had escaped from a French prison in Oran, in Africa. They had gotten together in order to commit robbereis, and they were trained climbers of walls. After they had committed a large number of serious thefts in Stuttgart, under cover of the blackout, they went to Baden-Baden. There, during the night, they entered the home of the Turkish Ambassador and stole valuable jewels from the bedrooms of the Ambassador and his relative while the latters were sleeping. Through an extensive search by the criminal police, the two criminals were caught and arrested, and they were indicted as public enemies. Lawyer Dr. Ruisinger was appointed as counsel by the court.
The date of the opening of the trial was set, with a time limit of about five to six days. Shortly before the trial the defense counsel was given the files; they were brought to his office. He brought me the files, to the judges' chambers, a few minutes before the trial opened. When he did so I told the defense counsel that I thanked him for managing to get into the case and get familiar with it; and I told him that, as he could very well see, according to the confessions of the defendants, it was a very simple matter as to the facts of the case.
One minute later the trial began, and, in accordance with the notion made by the prosecution, it ended in the death sentence for each of the defendants.
Q. Have you finished, witness?
Case No. 6. In the Heinz-Niemes case--I shall later state the pages of the English transcript-the Special Court is supposed to have pronounced a prison term that was one year longer than that asked for. Was this admissible at all?
A. The Court was not hound, by law, by the notions for penalty made by the prosecution, or by the notions for sentences, Occasionally it did happen that in the case of prison terns the Court exceeded the notion made by the prosecution. That is what one supposedly nay assume happened in the Niemes case, and it certainly did happen in the Koehnlein case. The sentence in that case will be submitted later.
The prosecution, as a rule, was annoyed when the Court pronounced a more severe sentence than the motion made by the prosecution, for in such a case the prosecutors were afraid that they would have to answer for it to their superiors. This explains why, in the Niemes case, the prosecutors put a remark in the margin of the sentence which airs their annoyance, but which has nothing to do with the case as such.
DR. BRIEGER: The pages of the transcript in the Niemes case can be seen from the list that I have just submitted, so I don't believe I need to come back to that.
Q. The witnesses Eberhard and Berthold Schwarz, while they were examined before this Tribunal, discussed the Pietra case extensively. I am referring to the transcript at pages 1951, 1971, 2028, 2029, 2041, 2045, 2060, 2,273 and 2,310.
On the 12th of August 1942, while you were presiding judge, a death sentence was allegedly pronounced because of illegal intercourse with a German woman. Do you still recall that case? Exhibit 197, NG-632, in Volume III-E, is the alleged draft of a Fuehrer Information.
Has that any possible connection with the Pietra case?
A. The Stanislaus Pietra case, under the file note SL-317-42, was tried on the 13th of August, 1942, in Stuttgart. According to my findings, the indictment was filed between the 30th and the 31st of July, 1942. The trial lasted approximately three hours. The prosecution intended to ask for a death sentence against Pietra, and therefore the Court assigned an official defense counsel to the defendant, lawyer Dr. Meissner, of Stuttgart. I do not recall anything regarding the details of the indictment. However, I do know with absolute certainty that in the Pietra case the prosecution, to be sure, did ask for a death sentence, but that the Court, however, only pronounced a prison sentence the extent of which I do not remember.
I wish to say this in regard to the Fuehrer Information. This alleged Fuehrer information -
Q. May I interrupt you, witness? I imagine that it is important for you to look at this Fuehrer Information.
(Document submitted to the witness)
DR. BRIEGER: May I perhaps address a request to the Tribunal? For purposes of comparison, I have asked the Administration for another Fuehrer Information, which was submitted in the case against the defendant Rothenberger. Unfortunately, I was unable to receive a photostat of that; I was told that it would take two weeks. I shall employ the recess in order to speak to the representative of the Secretary General who is in this court, and I will ask him whether perhaps he may be able to get this Fuehrer Information for this afternoon so that it can be submitted to my client in the courtroom. I can understand fully that of course they cannot hand it out to me because it is an official document, but I am merely stating this to request permission to make a reservation here, and then I can come back to this case later on during the course of the day.
Q (Continuing) Please continue.
A. The Fuehrer information--a photostat of which I have before me and which is not signed; Fuehrer Information No. 66-is of the 3rd of July 1942. The Pietra case was tried on the 12th of August, 1942. Therefore, the Information is not at all connected with the Pietra case.
Regarding the Information itself, I would like to say that it contains a striking error. The Information states that the age under which girls a.re protected is 14 years. Actually, as everyone who is familiar with legal questions in Germany knows, the protected age of girls is 16 years.
Q By that you mean to say that it is quite an elementary error, which every lawyer who reads the document would notice?
A The error is so elementary that even given the case that the draft of this Fuehrer Information is the original that this information sheet would not have been signed by any Ministerial Official who is familiar with penal law, would not have been submitted to Hitler in this form.
THE PRESIDENT: Was this crime alleged to have been committed against a female person under 16 years of age?
DR. BRIEGER: Did you understand tho question?
THE WITNESS: No, Your Honor, tho Fuehrer Information says that sexual intercourse of a Pole with a Gorman woman could have been punished only if it had been committed by rape, or on a girl in the Protected age. And here it is stated, erroneously, "a girl under 14 years."
THE PRESIDENT: I fully understand that. I am asking you whether the indictment charged that tho crime was committed against a girl under 16.
THE WITNESS: No. In the Pietra case, it was supposed to have been a crime of rape committed on a grown-up married woman.
THE PRESIDENT: You mean by "rape", rape by violence, and against the will of the woman?
THE WITNESS: Yes, rape under violence.
BY DR. BRIEGER:
Q May I ask you this? What statement by the witness Schwarz are you basing this on? Because, during his examination, he charged his attitude towards that case several times.
A Yes, I am basing my statement on the fact that the prosecution, in its indictment, supposedly from the beginning, wanted to achieve the death sentence. Otherwise, I would not have had to appoint an official defense counsel. Thus, I cannot imagine it to have been otherwise than that the prosecution at that time assumed that Pietra, as a public enemy, had committed the crime of rape on the wife of a drafted soldier, if I remember correctly.
Supposedly, during the trial, the case was found to be less serious, so that it was not necessary to pronounce the death sentence.
I would also like to state that the indictment, so far as I know was filed by prosecutor Rimmelin, whom the prosecution called as a witness in this case.
Q Was it by accident that Prosecutor Rimmelin filed the indictment in a case against a Pole, or did he do so frequently?
A Prosecutor Rimmelin, according to my information, filed indictments in almost all serious cases against Poles and foreigners in general, for example, the cases that we have discussed already, the Meicher-Strobowski case, the Pietra case, and a number of following cases.
THE PRESIDENT: May I ask you in what respect the Pietra case turned out to be less serious than what was at first thought? Was it because there was no evidence of violence?
THE WITNESS: Your Honor, I only remember the Pietra case very slightly. I can only conclude, from the entire external circumstances, that the Court at that time adjudged the case to be less serious than the prosecution thought. I gather that from the fact that the Court did not pronounce the death sentence which the prosecution had asked for. However, I no longer recall the details.
THE PRESIDENT: Is the indictment in evidence?
DR. BRIEGER: No, Your Honor. If I may make a remark-
THE PRESIDENT: It is not in evidence?
DR. BRIEGER: No, it isn't.
THE PRESIDENT: Do you have the indictment there, Mr. Witness?
DR. BRIEGER: Do you have the indictment, witness?
THE WITNESS: No, Your Honor, I don't have the indictment.
THE PRESIDENT: Then do you know whether the case was one of rape or rape or merely one of sexual intercourse by a Pole with a german woman, if you have no indictment?
DR. BRIEGER: Witness, if you don't recall exactly, don't say anything.
THE WITNESS: Your Honor, according to my recollection, this was a case of rape, but I cannot cite more than my mere memory for this fact. This case occurred many years ago.
BY DR. BRIEGER:
Q Witness, if I recall correctly, the prosecution's witness Schwarz stated, at tho time he was here, in regard to the Pietra case, that first a death sentence was pronounced and then the death sentence was quashed, and in the second trial a new death sentence was pronounced but the man was pardoned. One thing was without doubt, that he was not executed. May I ask you how it was possible at all that the first sentence was quashed and then there was a new trial?
MR. LA FOLLETTE: Excuse me, Your Honor. I would just like to ask that when we are discussing the witnesses Schwarz, we identify either Berthold or Eberhard; I can't tell.
DR. BRIEGER: Yes, Mr. LaFollette, I was a little careful here because, for as far as I remember, both witnesses Schwarz said something about this case. However, I believe this remark was made by the witness Eberhard Schwarz.
Q (Continuing) Herr Cuhorst, perhaps you remember which one of the two witnesses made this remark.
A The witness Eberhard Schwarz. The witness Eberhard Schwarz was not quite clear in his own mind as to whether, in this case, there was a pardon or whether a second sentence was pronounced by a different court.
DR. BRIEGER: In regard to that testimony, I would not like to make my client responsible under his oath, because it is very easy to tell from the transcript which one of the two witnesses made the remark.
Q How, I would like to ask you, what was striking in the description given by the witness Schwarz?
A The sentence pronounced by the Special Court at Stuttgart could have been nullified only by a nullity plea in favor of the defendant; I have only experienced these against a defendant.
THE PRESIDENT: One more question please, Mr. Witness. If, in case Pietra, the evidence had disclosed a case of actual rape by violence by a Pole against a German woman, would not the sentence have been a death sentence?
THE WITNESS: No, Your Honor; It depended entirely upon the circumstances of an individual case, because even in cases of rape there are gradations of the crime. In this case it must predominantly have been a question as to whether the defendant committed the rape by exploiting war-time conditions or other circumstances that made the crime more serious.
THE PRESIDENT: All right.
BY DR. BRIEGER:
Q Have you concluded your statements so far in regard to this very important Pietra case, witness?
A Yes.
Q Case No. 8. Did you, on the 20th of July 1942, preside over the criminal case regarding Helena Polek, about which the witnesses Rimmelin and Eberhard Schwarz testified? Is it possible to only pronounce the death sentence in a case of murder?
A The Helena Polek case was tried, while I was presiding judge on Monday, the 20th of July 1942, in Rottweil on the Neckar. The indictment was raised by Prosecutor Rimmelin. This was a clear case of murder under the meaning of Article 211 of the Reich Penal Code, where only the death sentence could be pronounced. The Polek woman, after preceding threats, had killed her farmwoman employer while this farm-woman was in the stable milking the cows.
Q I now go to the next case, No. 9, which has been discussed here extensively too.
In regard to the sentence which was pronounced, under your presidency, against Klausner and Klauser--Prosecution Exhibit 191, NG-719, In Volume III-H--the prosecution submitted the sentence and charged you with misusing the law. I shall show the sentence to you immediately. Please comment.
The witness Berthold Schwarz also discussed whether one of the defendants was a member of the NSDAP.
What do you gather from the sentence in regard to that statement? Just a moment, witness.
(Document Submitted to witness)
A In the Klauzer and Klausner case, the prosecution submitted clemency files from the Reich Ministry of Justice. To be sure, they are incomplete, but the complete judgment which was pronounced while I was presiding judge is contained in these files.
Hans Klausner, who was condemned to death, was a serious juvenile criminal, who, in spite of the fact that he was only seventeen and a half. Klauzer had committed a number of serious criminal offenses and, according to the findings of the opinion, Klausner had instigated his somewhat older cellmate Klauzer, from Vienna, to commit, together, a serious assault on the prison official.
The details can be seen from the opinion that has been submitted in evidence. Neither the defendant Klausner, who was condemned to death, nor the defendant Klauzer, who was condemned to imprisonment, were members of the party. The clemency proceedings did hot affect the court at all. In this case it was proceeding which took place several years after the sentence was pronounced. The interesting thing about the submitted files is also the following fact, namely that the Prosecution, due to the seriousness of the offense, asked for an extraordinarily short time limit and that the Special Court refused to set the opening date of the trial in such a short time. This can be seen from a letter of 3 May 1941, which is also contained in the files that had been submitted. Hans Klausner, who was condemned to death, was an absolutely serious criminal character; His criminal offenses assumed a more serious character from month to month. As the General Public Prosecutor found, Klausner was a very dangerous person. I myself who in general did not have any precautionary measure taken in regard to defendants, through having Klausner guarded especially carefully believed that that was necessary to protect myself. Klausner was a typical premature criminal whose sentencing to death in accordance with the prevailing jurisdiction was inevitable. Whereas regarding the defendant Karl Klauzer, who was 20 years old and born in Vienna, the death sentence asked against him was not pronounced since the court assumed that this defendant had gone astray and that he still had a chance to grow towards a normal life.
Q May I now discuss the next case, and, Witness I would like to ask you, too, in the document book which I have just given to you, to look at the Oilback sentence. It is the sentence of 21 November, 1942, Exhibit 182, NG 437, Document Book III-E.
THE PRESIDENT: May I ask a question before you proceed to that case?
DR. BRIEGER: Surely, your Honor.
THE PRESIDENT: Merely for information. What was the nationality of Klausner?
THE WITNESS: Klausner was a German. He was born in Vienna.
THE PRESIDENT: Thank you. That is all. Now the Oelbach case.
BY DR. BRIEGER:
Q.- That is Case No. 10.
A.- May I answer?
Q.- Just a moment, witness. Even though the Prosecutor here only cited a. few passages which were taken from the sentence and the opinion, which were taken out of their context, I shall not come back to that now, but shall only address one question to you, Witness, which has already been discussed, too, and accordingly seems to be of some importance. Please state your position in regard to the question, was Oelbach able to stand trial.
A.- From the opinion I gather the following about this. It says in accordance with the -
Q.- Excuse me for interrupting you, witness. Please, could you state the page of the judgment?
A.- German page 3. In accordance with the information of the Tribunal, as in accordance with the statements made by the expert, the defendant was in a position to follow the trial. This seems to be the decisive point tome. On that question I refer to the fact that a trail against a defendant who is on a stretcher is nothing new at all, for already in 1908 the famous Count Eulenburg was tried before the Penal Chamber, Berlin, Moabit, for weeks while he was lying on a stretcher.
THE PRESIDENT: Pardon me. This is the case is it not, where the man injured himself before the trial and then refused to eat?
DR. BRIEGER: Yes, Your Honor.
THE WITNESS: Yes, that is the Oelbach case.
BY DR. BRIEGER:
Q: Witness, therefore I just wanted to ask you to again comment as to whether you know or you can gather from the judgment that he made a suicide attempt. As far as I recall, there were even two, but don't let me influence you. And secondly, that he wont on a hunger strike.
A: The defendant Oelbach, who had a number of previous convictions, had made a number of escapes, some of which were successful and some of which were not. He also made an attempt to commit suicide, and that when the opening date of the trial in Siemaringen was set, he carried out a partial hunger strike. After the trial, and that was still on the 19th of November, 1942, the defendant was able to go to the railroad station on foot and leave by the train, which went according to schedule, to which he was brought to Stuttgart by two police officials. It was no longer necessary to bring him on a stretcher. The motion for reopening of trail by the defendant Oelbach which the witness Schwarz mentioned was rejected by the Penal Chamber as unfounded.
Q: Witness, only the following now. In regard to your behavior, in other words, in regard to the fact that you insisted that the trail be carried out, did it contribute to this that this man was a professional criminal or that he had a number of previous convictions -- a considerable number. Perhaps you can find out something about it from the judgment. If I recall, he was also charged with being a pimp, As is known, being a pimp is the mother of all crimes, Oelbach's behavior towards the Special Court was of such a nature that I raised the question whether the defendant Oelbach could have the nerve to withdraw from a trial. Only after the expert position had determined that Oelbach exaggerated very much we began the trial and then carried it out without consideration of Oelbach's exaggeration.
THE PRESIDENT: You don't have to go into that. The record shows what the situation was, and it is pretty clear.
DR. BRIEGER: Yes, Your Honor.
8022 (a) BY DR. BRIEGER:
Q I now come to Case No.11, the Schramm case. Witness, please comment on the sentence pronounced on 2 August 1943. I believe that you have the exhibit No. 193 in Document Book 3-H. Would you please state the NG number?
QNG 458, regarding the trial of the fraud and receipt. Were there any rash regulations?
A On 15 March 1944 Karl Schramm was sentenced to death while I was presiding judge in Ulm. He had a number of convictions; There were eight on the list of his previous convictions, and the court in Elbingen o/ Jagst, when he was convicted for the last time, stated already in the opinion that the course that he was going on, he could not continue, but if such a crime should recur, he would have to count with it that he would be put into protective detention as a dangerous habitual criminal. Schramm was a so-called greeter--took messages, and he predominately turned to the members of the families of missing soldiers and give them alleged regards from their sons or brothers and had them give him presents for that. The Reich Supreme Court asked for the most serious penalties against these public enemies, and as in the Schramm case eleven crimes in accordance with Article 4 of the Public Enemy Law existed, the death sentence in accordance with the prevailing jurisdiction was unavoidable. His own mother was summoned as a witness in the Schramm trail, and she did not ask that the life of her son be saved in the least.
Q She also made a significant remark during the trial. Do you recall it still?
A She made the following remark; Karl Schramm was our scoundrel. During the trial there was an attack on Ulm, so the trial had to be interrupted.
Q "Scoundrel", if I understand you correctly, means a worthless person?
A "Lump" Means a worthless person. The mother Schramm gave up her son.
Q May I now go over to the 12th case. In Case No, 12, the Staudenmeier case, the prosecution is charging you on the basis of Document Exhibit 169 that a man was tried while you were presiding judge who had embezzled party funds. I assume, Witness, that you have the sentence before you. Please comment on that charge. Who was the judge who reported on that case, who drafted the judgment? In other cases did you draft sentences yourself?
A The Staudenmeier case was tried in Ulm o/Danube on 8 February, 1944, while I was presiding judge. I myself was the recording judge who wrote the judgment. Staudenmeier was a political chief who in more than a hundred cases embezzled the collected funds of the winter relief and the Red Cross. Staudenmeier was to be regarded as public enemy. A death sentence was in this case required appropriate. Why I, myself, in war time judged such cases severely can be seen from the opinion which I wrote. I was of the opinion that in such cases every fairminded citizen demands the death of such a public enemy during war time. With that I meant to express that the jurisdiction during peace time would only be different. As to the defendant Staudenmeier's having embezzled party funds, there is no question of that.
THE PRESIDENT: My notes indicate that you invoked the provision of the law which refers to the sound sentiment of the people in that case. In what respect did you think the prevision concerning the sound sentiment of the people was important in that case? Was it with reference to the fact of the commission of a crime or with reference to the propriety of the death sentence?
THE WITNESS: In view of the fact and the nature of his crimes, for I was of the opinion that such funds that had been collected, especially those of the Red Cross, during war time, should untouchable, especially should not be touched by political leaders of the NSDAP, who should be required to have exemplary behavior.
THE PRESIDENT: You didn't answer my question. Wherein did the provision of the law with reference to the "sound sentiment of the people" become material in this case? Was it with reference to the question whether a crime was committed or with reference to the nature of the punishment which should be imposed?
THE WITNESS: The sound sentiment of the people is from the Public Enemy law and the offense as such was so serious that, in my opinion, every fair-minded person would demand the death of such a criminal, such a public enemy during war time.