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.
THE PRESIDENT: I take it that you invoked the sound sentiment of the people as being important relative to the sentence which should be pronounced under the circumstances of the case, is that correct?
THE WITNESS: Yes, Your Honor, in view of the especially serious circumstances of the case.
BY DR. BRIEGER:
Q May I again refer to what Judge Brand just said, Judge Brand wanted to emphasize the following, if I understood it correctly, and I believe you didn't make it clear enough yet. Did you base yourself only on the law or beyond that on the sound sentiment of the people in order to find out at all whether it was a crime? Please answer yes or no.
A The law alone regarded it as a crime, serious embezzlement and breach of trust.
Q In other words, if I understand you correctly you did not make the sound sentiment of the people part of the law?
A No.
Q Thus, if I understood you correctly, tho sound sentiment of the people was decisive for you only, or was only a guidance in order to find out the extent of the punishment?
A Yes, and he was sentenced as a thief because of serious embezzlement and because of breach of trust.
Q Would you assume that you passed such a judgment for the first time in Germany, or whether otherwise in Germany, too, sentences that serious were pronounced in other countries? I should assume that embezzlement of welfare funds during the war happened not for the first time in Germany, if I think of the entire German Reich.
A Such cases were known to have been tried by other courts for some time at that time. The Staudenmeier case happened in 1944 and was the only and first case of that nature in Wurtemburg.
Q Can you say anything as to the manner in which the funds were collected? Were they gathered in a box, that is to say, in small coins?
A They were funds from the street collections, usually in small amounts.
Q Thus you would say that everybody was asked, the moral feeling of every person was appealed to, and the smallest man contributed just as well as everybody else?
A Yes.
Q Therefore the further question seems important to me. Do you recall what amounts he embezzled.
A It was 6,500 RM.
THE PRESIDENT: We will recess at this time for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. BRIEGER: May it please the Court, may I continue with my examination?
BY DR. BRIEGER:
Q. Witness, before I go over to the next case, may I use this opportunity to ask you whether, in connection with the Staudenmeier case, you yourself wrote the judgment, and did it happen occasionally or did it happen frequently that you wrote judgments yourself? I suppose I may assume that as a rule, just as it was customary all over Germany, it was the judge who actually wrote the sentence, and that the presiding judge only occasionally made some corrections. Please comment on that.
A. I, myself, wrote the judgment only in a very few cases, and I did that in order to relieve the judge who was supposed to write the judgment, as those judges were overworked. I can only remember two or three judgments which I, myself, wrote.
Q. If I understand you correctly, you mean to say that the only motive by which you were guided when you wrote the judgment yourself was that the other judges were overworked and that it was only a friendly act on your part that you wrote the judgments, is that correct?
A. Yes, that was my only motive.
Q. Witness, I am now coming to a case which has been discussed here a great many times. That is a case which the prosecution has discussed here in great detail. I ask you to go into it in a very detailed way yourself. I am referring to Case 13, which is the Untermarchtal case. I assume that you have the document before you. I am concerned with the judgment. I have just been told that I have the judgment here. The exhibit number is 497; the NG number is 907 in the Supplementary Volume III-B. I have just been told by my secretary that it is 709.
THE PRESIDENT: It's NG-706 on your memorandum.
DR. BRIEGER: That is right, Your Honor.
THE PRESIDENT: Which is right?
DR. BRIEGER: 706. I am now handing you these documents. I am handing you the judgment which the prosecution submitted and also the indictment in the Untermarchtal case.
Witness, I would ask you, first of all, to tell us how you got hold of the indictment. Before you begin -just a moment, please.
THE PRESIDENT: I don't see why we should be concerned as to how he got hold of the indictment. Let him go ahead and discuss the case.
BY DR. BRIEGER:
Q. May I ask you to start now.
A. I have before me the judgment which was presented here by the prosecution, and the indictment which was in the possession of one of the defense counsel. I have the original of that indictment. This was a case of violating the war economic provisions and involved were 90,000 eggs, 145 liters of milk, 13,600 kilograms of flour and grain, 7,000 kilograms of processed foods, 3,500 kilograms of sugar. Too much had been consumed, or rather had not been delivered.
Q. May I just interrupt you, witness? As a rough estimate, if I assume that this happened in war time and that food was rationed, would you say that several dozens, several hundreds, or several thousands of people suffered because these amounts of food went to the black market?
THE PRESIDENT: We can make our own estimate from that. You don't need to reduce it to the number of meals.
DR. BRIEGER: Yes, Your Honor.
BY DR. BRIEGER:
A. The offense occurred in the canonic congregation of the sisterhood in Untermarchtal. This was not a convent but it was a canonic congregation; that is to say, it was a sisterhood. Among the defendants there was the Mother Superior, the sister in charge of household affairs, the sister in charge of purchases, and a number of other sisters and also firms that supplied the sisterhood, and also the mayor. The offenses were made possible because, as is clearly evident from the judgment, the administrative authorities had failed completely. The sisters exploited that fact. The indictment was made out in great detail. It goes over 150 pages and there were several thousand pages and supplementary files.
The prosecution spent six months in writing the indictment. When the proceedings were instituted, the court did not play any part in the matter. The court, as well as I myself, had no idea that the Gestapo had confiscated the sisterhood. That can be seen quite clearly from the files.
Q. Witness, I want to interpolate a question. When did you hear for the first time that proceedings were to be instituted against Untermarchtal?
A. I heard of that for the first time - and then I only obtained some information - that was approximately in November 1941. That was when the prosecution asked that some arrest warrants were to be issued on account of the danger that otherwise essential testimony would get lost. It asked for such warrants to be issued against the mayor, and as far as I know, also the sister in charge of household matters, When the warrants had been issued, we no longer saw the indictment for several months.
On the 10th of March 1942, the indictment was filed. The trial was held three months later; that is to say, it was fixed for the 1st of June 1942. There were 28 defendants and 9 defense counsel. The trial lasted ten days without Sundays and without counting a Catholic holiday on which no session was held. The trial was conducted in great detail. Innumerable witnesses and experts were called. The result, the judgment, was not quite in accordance with the extent of the indictment. In particular, the Mother Superior, Agnes Burger, who was responsible before the law, was not sentenced for a crime against the war economy, as had been charged in the indictment, because the court had doubts as to whether the Mother Superior had known everything about the very many offenses that had been committed.
As to the sentences, the main defendants among the sisters were given a great deal of consideration, and only now in the peace of my cell, I have discovered that the Special Court, concerning the defendant Sister Caroline Mueller, allowed several days more for the time spent in detention that she had actually spent. The reasons given for the sentences, too - and I do not wish to repeat then here - show quite clearly that the Special Court did emphasize the merits of the sisters to a very large extent.
There are several passages where it is emphasized that the sisters could not possibly be held responsible for all the failings of the authorities who had been responsible for the administration.
Q Witness, a little while age you said that it wasn't a convent. May I ask you whether these sisters were only looking after themselves in that place or whether they had guests--paying guests, perhaps, in large numbers, and whether they had these paying guests net only temporarily but permanently.
A The congregation of Untermarchtal runs a number of hospitals in Wuertemberg--sick bays, spas, etc. The original home, if I may call it that, is in Untermarchtal on the Danube. In that original home, every now and then spiritual exercises are held, which are to a great deal attended by people from the rural surroundings. Affiliated to the original home, there is a home, where sisters live who are no longer able to work. There is also a home for children and for crippled and a home for fallen girls. At Untermarchtal itself, a place with a population of only 300 persons who do not belong to the convent, there are at the convent an average of 600 to 700 people. The convent was the biggest agricultural producer of the district of Ehingen on the Danube, which is largely agricultural. Above all, it had the biggest chicken farm in Southern Wuertemberg, and also their livestock department was exemplary. The size of this enterprise explains the amount of food that was not delivered or consumed in excess respectively. Consideration was duly paid to that in the judgment.
Q Witness, if I remember correctly, the sisters, in particular the Mother Superior, at least in one case or another said that she had not known that the agricultural products were subject to official control Would you assume that the size of the enterprise was such that commercial principles were to be applied, and that therefore the administration considered itself an obligation to keep these newspaper which published instructions concerning rationing and control?
AAs far as I remember, we pointed out in the judgment that the assets of the convent by far exceeded ten million Reichsmarks.
The enterprise had an exemplary modern bookkeeping by machine. The sisters who dealt with the administration--all of them had the Reich Law Gazette--Reichsgezetsblatt--as well as the publications of the Catholic Charitas organization.
Concerning the legal state of affairs, as far as we found, they were far better informed than the competent highest administrative official in the district, Landrat Dr. Bodnerin Ehingen on the Danube.
Q If I am correctly informed, all the same the sisters had said that they had been ignorant of these matters, is that correct?
A Yes.
Q Witness, who of the convicted persons received the heaviest sentence? Please have a look at the judgment.
A It was the mayor who received the heaviest sentence--the mayor of the village of Untermarchtal--and the defendant Stuetzelberger.
Q I am sorry, but I have to interrupt you here. Was the mayor a member of the convent?
A No, he was the mayor of the Parish, and he was an old Party member. He was a mayor in a honorary capacity. He was the only defendant to have a penitentiary sentence.
Q What was that penitentiary sentence?
A That was three years.
Q What was the maximum sentence which was passed on a member of the convent, and on whom was it?
A It was the defendant Landerer, and Mueller.
Q Were they sentenced to a penitentiary?
A No, they were sentenced to be imprisoned and the time which she had spent in detention pending trial was decuted in the Mueller case. It was seven days.
Q Were you under an obligation to deduct all time spent in detention awaiting trial from the penitentiary sentence?
A No, such an obligation did not exist.
Q Witness, please have a look at the judgment and have a look at the opinion and the reasons for the sentence, Please look for the passage which shows that in the case of the Mother Superior, a heaviest sentence was not pronounced. I am referring now to the extenuating circumstances, and I am particularly thinking of the fact that you took into consideration the unisial merits of this siter from the days of the First World War; that is to say, from a time which was a long time ago, further, to the fact that you made reference to her blindness.
A Those extenuating circumstances are mentioned a great many times in the judgment. They occur again and again in the judgment like a red thread. Concerning the last part of your question, may I refer you briefly to the fact that concerning the two main defendants among the sisters, it says in the judgment that the character of the two defendants indicate that the merits of their work and welfare should not be ignored; in particular, the defendant Caroline Mueller distinguished herself in nursing, particularly during the World War.
She sacrificed her health for her work and she was in danger of losing her eyesight completely. Similar phrases can he found in other passages in the judgment.
Q. Was it of importance that without always mentioning the particular extenuating circumstances you ha.d thought the sentence might be revoked by a nullity plea?
A. Before the trial opened we feared that there might be a threat of a nullity plea. Therefore, I suggested that an observer from the Reich Ministry of Justice should be sent to the trial, for I knew from the very beginning that the authorities in the district of Ehingen had failed and I knew Wuerttemberg sufficiently well to know that. I also knew that for that reason only relatively light sentences could be expected in this case. However, no official from the Ministry came. As for the nullity plea, the prosecution is said to have discussed that matter for a long time, but I never heard any details.
Q. Witness, were those sisters party members or not?
A. No.
Q. I had assumed that they were not. Now, I ask you as a party member did you not have any misgivings, or did you not have a struggle with your conscience when you sentenced a party member to the heaviest sentence, and contrary to the sentences that were passed on the other defendant, you passed a penitentiary sentence on him.
A. No, I didn't have any misgivings because the mayor had previous convictions, and the sisters knew about that; his superior in the Landrat did not know that. Without the mayor , the convent could never have gotten into this whole affair. Therefore, he had to be considered the main defendant.
Q. If I understood you correctly, you have already indicated that you had nothing to do with it when later on the property was confiscated.
A. No, I had nothing to do with that. The property was confiscated during the pre-trial period, and at the time when the indictment was filed with the court as far as I knew, that confiscation had already occurred.