MR. WOOLEYHAN: The prosecution desires to contract at this point the statement in this report which I have been reading, which is a report of the Chief Public Prosecutor at the Peoples Court, who at the time the report was dated, was the defendant Lautz. I wish to contrast the figure on page 60, which I have just read which states "against about 500 arrested defendants." I wish to contrast that with the figure contained in the Lautz affidavit or portion thereof which was read into evidence a moment ago.
I skip now to page 62 of the English document book, which is the conclusion of the report which I have just boon reading:
"The chief public prosecution of the Reich at the People's Court has been informed of the request of the Supreme Command of the Wehrmacht and has been advised to take measures for the immediate transfer of the arrested from the prisons of the Military Courts in the protectorate to prisons in Germany proper, that is, for the time being to Nurnberg."
At this time the Prosecution offers document NG-419 into evidence as Exhibit No. 127.
DR. GRUSE (Counsel for the defendant Lautz): I raise an objection against the document in so far as it refers to the so-called "Report on the Situation", "Lagebericht". The photostat of the document which is meant to become an exhibit does net show the author of this report; there is no signature. Furthermore, I wish to point out that this report refers to Czech matters, but what is decisive is that there is no signature.
MR. WOOLEYHAN: May the Court please, there are several answers to counsel's objection, the first of which is that this document was found in the original in the form in which it is now offered into evidence, that is, all part and parcel of the same document; in other wards, attached or contained in the same file.
Secondly, its source, so far as authenticity goes, and being exactly what it purports to be on its face, is covered by the Coogan affidavit and other affidavits.
Third, the subject matter of this report objected to by counsel clearly is identical to the subject matter of that contained in the rest of the document and there are cross-references in the report to said subject matter.
Moreover, I don't think that counsel will care to contest the fact that it is clearly relevant in so far as it is entitled, "A Report of the Chief Public Prosecutor if the People's Court." The fact that there is no signature on it, the prosecution submits, in no way detracts from its credibility, but in any event that is for the Court to decide.
THE PRESIDENT: On the last page of the document we find the name "Jaeger", "Signature". I wonder what that means, if there is n signature.
MR. WOOLEYHAN: Your Honor, the page to which y u are referring is the last page of the document. The report to which defense counsel is objecting is contained in the middle of the document.
MR. GRUBE: The document to which I object -- that is, the "Report on the Situation", the "Lagebericht" -- does not include a signature. The signature which Your Honor has just referred to refers to another document; it refers to the note which appears on page 72 of the German document book.
Furthermore, I wish to point out that as far as I understand, the prosecutor stated that this so-called "Report on the Situation" is part of a report by the OKW of 31 May 1940. That is n t correct. First of all, this report from the OKW does not mention any enclosures. Secondly, the letter from the OKW was written on 31 May 1940, whereas the "Report on the Situation", which is supposed to have been written by the Oberreichsanwalt was written at a later date. It refers, as can be seen from the heading, to the period from the 1st of July 1940 to apparently the 2nd of October.
One must also not overlook the fact that entirely different facts have been mixed up. One report refers to Czech matters; the ether to Polish affairs.
What is decisive, as far as the admissibility cf the document is concerned is that this document has no signature.
MR. WOOLEYHAN: May the Court please, upon re-examining the original, the prosecution has this to say in conclusion on the admissibility of this document.
Its actual physical form consists of seven original pages. The Prosecution has certified -- and these cf the people who have furnished us with evidence have certified -- that the document, when originally fund, was in this form.
Secondly, the report to which the defense objects docs bear a signature. In fact, it bears a number of signatures, one of which was picked out by the Bench a moment age. I find the signature here of on Dr. Grohne, whom we described, as far as official capacity was concerned, in the opening statement.
I find a number of other signatures, which, although I cannot read them, lend a definite air of authenticity.
However, what I want to impress upon the Court is that the documents, so far as the prosecution are concerned, were found in this form, which is a normal procedure for a Ministry. We feel that the material is relevant, has probative value, and we again offer it.
DR. GRUBE: May it please the Tribunal, I have already pointed out that this report from the Senior Reich Prosecutor, the so-called "Report on the Situation", was not an enclosure with the letter of the OKW of 31 May. The part which was taken from this "Report on the Situation" and which is supposed to have originated from the defendant Lautz, which is not established, is not covered by the signatures which are mentioned at the end and among which Dr. Crohne is included. Dr. Crohne at that time was in the Ministry of Justice, and not at the People's Curt.
Then, it must not be overlooked that on the last page but one of the document, Reich Prosecutor Ponisius is especially mentioned as having dealt with this matter, and n t Oberreichsenwalt Lautz.
At any rate, this report does in n way show that the defendant Lautz dealt with this matter; and furthermore, two entirely different matters are concerned. In one case Czechs are concerned, and in the other case Polish affairs are concerned.
THE PRESIDENT: Dr. Grube, the Tribunal is prepared to rule on this.
It is a captured document, and it is introduced in the form in which it was found. It is, therefore, covered by the Coogan and Niebergall affidavits, and in accordance with rulings we have made in similar matters we will receive it in evidence. However, you will have the opportunity to bring out the defects you call attention to when the defense comes t their side cf the case.
DR. GRUBE: Mr. President, I hope you will not misunderstand me, but I am of the opinion that if this "Report on the Situation" would have been submitted as a single document, without any doubt it then would have had to be rejected because it bears no signature.
I believe that this defect concerning the extract from the "Report on the Situation" is n t eliminated by the fact that in a separate note there are signatures from officials cf the Ministry.
MR. WOOLEYHAN: Your Honor.
THE PRESIDENT: We have ruled upon it.
MR. WOOLEYHAN: Would it be out f order, if it please the Court, for the prosecution to say a brief word on the probative value we seek to have attached to this document?
THE PRESIDENT: Well, be very brief because we have passed the usual adjournment time.
MR. WOOLEYHAN: I will be very brief, Your Honor. Before we put it in we would like to point out that that prosecution does not contend that the vital report f the Chief Public Prosecutor of the People's Court involved is an enclosure of the original letter from t ho Wehrmacht. It is quite obvious that the Wehrmacht latter was received in time Ministry of Justice, and in the normal process of filing a copy of the Chief Public Prosecutor's report was clipped thereto, which is a normal procedure. This is borne out by the fact that in the German the vital report concerned is clearly labeled, "copy".
THE PRESIDENT: Those matters have already been stated, and we so understand it.
At this time we will recess until Monday morning at 9:30.
"At 1645 hours, 21 March 1947, the Tribunal recessed until 1930 hours, Monday, 24 March 1947.
Official Transcript cf the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 24 March 1947, 0935-1630, Justice Carrington T. Marshall, presiding.
THE MARSHALL: Persons in the courtroom will please find their seats.
The Honorable, the Judges cf Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: The Marshal will ascertain if all the defendants are present.
THE MARSHAL: May it please Your Honors, all the defendants arc present in the courtroom with the exception cf the defendants Rothaug and Engert, who arc absent due to illness.
THE PRESIDENT: The proper notation will be made.
The prosecution will proceed:
MR. WOOLEYHAN: May it please the Court, we invite the Bench and the defense counsel to turn to Book III-A, document No. NG-355, which is found in page 5 of the English and 75 of the German. Fruity assembly cf this document requires us to read from page 73 in the English Book, 78 in the German, first.
This document begins with a covering letter, letterhead: "The Chief Reich Prosecutor of the People's Court", Berlin, 24 February 1942. Stamped "Secret", "Treason Case". Addressed to the President cf the Second Senate cf to People's Court, "Here". By "here"-- may I interpolate for a moment -- we assume the situs of the case to be in Berlin, since the Chief Reich Prosecutor' office was there, and the Senate to which his letter was addressed, and it states "here".
"Subject: Case against foundry worker Kasimir Kayslinski-Ledwen from Hittlingen (Bavaria), for preparation of high treason.
"Enclosure: One volume cf files; 9 copies of indictment.
"I am sending the indictment with enclosure with reference to my applications made at the end cf the letter".
This letter bears the handwritten signature of the defendant Lautz.
Turning now to pa o 65 of the English book, which is page 75 in the German, we find the indictment to which the covering letter refers. It likewise is stamped, "Chief Public Prosecutor at the People's Court", Berlin, ** February 1942.
"Indictment:
"I accuse the foundry worker Kasimir Kayslinski-Ledwen, born on May 1, 1919 at Buettgen (Governmental District Rheydt), last place of residence Hittlingen (Bavaria), unmarried, Pole (formerly a Polish citizen), allegedly without previous convictions:
"Provisionally arrested on 29 July 1911 and, in virtue of warrant for arrest issued by the District Court in Feldkirch on 8 August 1941, from that any under detention pending judicial investigation at the Feldkirch jail, hitherto without defense counsel:
"I. To have prepared in Fuldkirch and ether places inside Germany in July 1911 continually by the same action the highly treasonable enterprise to separate from the Reich by force a territory belonging to the Reich, the offense having been aimed at the establishment of an organization for the purpose of preparing high treason; to have aided and abetted the enemy inside Germany during a war against the Reich and thus, as a Pole, not to have behaved according to the German laws and to the directives of the German authorities.
"II. To have committed a violent attempt on a German official near Tisis (Vorarlberg) on 29 July by the same action as mentioned under I, that is, crimes against" -- and may I interpolate here, a certain series cf sections of the criminal code which are reproduced in document book II.
"The next item, on page 66, "Essential Result of Investigations". This is still part of the indictment:
"1. The accused is a Pole and formerly was a Polish citizen. He was born as the illegitimate child of Maria Ledwen and was adopted by her husband Kayslinski. About the year 1934, he entered a training school of the French Navy in France, where he had grown up, but soon he had to leave again for health reasons.
In 1938 he and his parents moved to Kielce (formerly in Poland, new Government General), where he was resident on 1 September 1939.
"2. On 2 July 1941 the accused left his place of work at Hettlingen (Bavaria) and went to Feldkirch via Lindau."
May the prosecution interpolate here to supply a seeming gap in the facts? The indictment does not state what the defendant did between 1 September 1939, when it was stated that he was a citizen and resident of Poland, and how he happened to come to Germany in a labor capacity in 1941. That was emitted from the indictment.
"On the following day he was stopped by a customs official near Tisis (Vorarlberg), as he was about to cross the Reich border. He evaded arrest by hitting him with the fist in the face. A patrol, which was sent out, succeeded in arresting him on the same day while he was still on this side of the Reich border.
"3.) The accused states that, following a request by letter from a friend in Charleville in the Ardennes area he had intended, together with his friend, to get to Syria, and there to join the French forces fighting the British. On account of the fact that already on 15 July, as had been announced in the Press at the tine, an armistice had been concluded by the opposing parties in Syria, this statement of the accused does not deserve credence. It may rather be assumed that he intended to join the "Polish Legion," organized on the side of the hostile powers.
"The aim of this Legion, by participating in the fight against Germany to restore a Polish State, comprising the incorporated Eastern Territories, was known to the accused.
"Evidence. I.--"
May the Prosecution interpolate here, the translation reads, "The confession of the accused," but the Prosecution submits that the proper translation should be "statements." The deputy chief prosecutor. Mr. LaFollette, is preparing a written statement of the agreements reached by the defense and prosecution on this translation matter and this word, like all others in question, will be taken up out of court that way. In the meantime the Prosecution wishes to state for the purpose of the record that that statement there should read, "The statements of the accused."
"II. The witness; one Unterweger, Frontier Control Office Tisis."
Signature as deputy -- and as has been seen from the exhibit introduced into evidence Friday, namely the affidavit of the defendant Lautz, we know that the deputy refers to the deputy of Lautz. Signed, "Parrisius."
Part of this same document attached to the covering letter and the indictment which have been read is the People's Court opinion and findings in this case. That begins on Page 68 of the English book and on Page 79 of the German.
"Secret! In tho Name of the German People in the criminal case against the foundry worker Kasimir Myslinski-Ledwen --" skipping four lines -- "for preparation of treason, tho People's Court, 2nd senate,' and there follows a list of judges and prosecutors who sat on the case whose names we will not read -- "has passed the following sentence in accordance with the law:
"The defendant is sentenced to death for endangering the welfare of the German People, a crime committed as a Pole. 24 August 1942. Reasons: On the basis of the statement of the defendant the following facts are tho fining of the trial:
"The defendant was formerly a Polish citizen. He is also a member of the Polish race. He was the illegitimate son of a land girl employed in the Rhineland. Nothing more is known of his parentage. Soon after his birth his mother married a Pole, who adopted tho defendant. When he was four years old the defendant with his mother and his step father moved to France, where they resided in various towns for twelve years. In 1936 they returned to Poland and settled down in Kielce. They were living here on 1 September 1939.
"After the end of the Polish campaign tho defendant reported voluntarily for work in Germany. After having first had another job as a farm laborer which he left, he was assigned to the farmer SPOHNER in Hettlingen (Bavaria) as a farm laborer. Although he was well treated by him, he left this place of his own accord, on 28 July 1941, in order to be abroad. He went via Lindau to Feldkirch and from there proceeded to the Swiss border. On the following day he was stopped by a customs official when he was crossing the frontier. He avoided arrest by using force against the official. He was, however, arrested the same day by a special patrol.
"II. The statement of the defendant and the actual and legal valuation.
"The defendant states that he left his place of work and that he intended to go abroad because he no longer wanted to be treated as a Pole. Ho says he planned to get into France via Switzerland where he wanted to join tho French Colonial Army in Syria. He got this idea through a French friend who had written him two postcards and in these had requested him to meet him in Marseille for this above mentioned purpose.
He did not want to join the Polish Legion in Switzerland. He was not at all aware that such a legion existed there. He had however heard of a relish Legion existing in England. He had merely pushed back the customs official who wanted to arrest him.
"The prosecution charges the defendant with the intention of going to Switzerland in order to join the Polish Legion there. Several important suspicious reasons lead to support this intention of the defendant. Considerable parts cf the Polish Legion formerly active in Franco wore interned in Switzerland for which a lively propaganda was being made among the Poles, Furthermore, at the same time numerous Poles had been picked up at the German-Swiss frontier some of which could be convicted of planning to join the Polish Le ion in Switzerland. In addition, the statements made by the defendant for his reason to escape from Germany are not worthy of belief. Even if at that time fighting was still taking place between the French and the English in Syria, it does not follow that the defendant, a racial Pole, was determined to fight on the side cf Vichy-France. The defendant has, furthermore, contradicted himself in relation to the request which he alleges his French friend made, which was the alleged cause of his behaviour. In the preliminary procedure he stated that he received the request in a letter, whilst according to Ms present explanation this request was sent to him on two postcards which ho has destroyed. The final evidence, however, that the defendant intended to join the Polish Legion in Switzerland is lacking. The trial did not show any concrete evidence that the defendant, contrary to his protestations, had any knowledge cf the existence of a Polish Legion in Switzerland. Due to lack of evidence of his intention to join the Polish Legion, the defendant could not be convicted of the crime cf preparation for treason and of treasonably aiding the enemy.
"The defendant is, however, guilty according to the result of the trial, of an offence against penal law relating to Poles of 4 December 1941 The general condition cf this ordinance are fulfilled, as the defendant is, by origin, education and sentiment, a racial Polo and was on 1 September 1939 resident in the former Polish State.
In leaving his place of work as an agricultural laborer, of his own accord, at the end of July, during the harvest, he disturbed the orderly procedure of the harvest work of his employer to the detriment of the harvest. His action, moreover, was detrimental to the whole of the German people for, in leaving his place of work in order to go abroad, he deprived the German people forever of his labor. Germany, in order to cover her war needs and to ensure food supplies for the front as well as for home, however, needs all persons employed, including foreigners. Every worker who by escape abroad deprives the German war economy for good of his labor, reduces the number of the badly needed manpower and thus endangers the interest of the German people. This consequence was recognized by the defendant when he escaped from his working place, as he considered what his leaving his place of work during harvest time meant, Nevertheless he left because - as the senate is convinced - being a Pole, he did not wish to work for the German nation any more from political opposition The defendant, therefore, by his behaviour knowingly endangered the welfare of the German people and has thereby actuated the exterior and interior facts of a crime according to number I sub-paragraph 3 of the Penal Code Ordinance for Poles.
"The defendant has, furthermore, offended against this ordinance by having committed an act of violence against the customs official who wanted to arrest him when illegally crossing the border, who was acting in a legal capacity and in the execution of his duty. It is irrelevant in this respect whether the defendant knocked the official to the ground by a blow of his fist, which he denies. The extent of violence used by him against the official was considerable enough to prevent this official from arresting the defendant, according to his duties. The defendant, a Pole, therefore, knowingly committed an act of violence against a member of the German police."
Skipping to the next paragraph:
"Both these crimes committed by the defendant come under the Penal Code Ordinance for Poles as committed."
Skipping to Page 72, "III, The amount of punishment. According to figure 1 paragraph 3 of the Penal Regulation for Poles, only the death sentence on the defendant can be meted out --" may I interpolate here a moment. There are two or three phrases on this page, if it please the Court, that were mistranslated, or so the Prosecution contends. This also will be taken up out of court with this translation procedure that is now in the process of being set up. I will interpolate the correct translation, so far as the prosecution is concerned, and note each instance. If the defense has any objection, they can enter that out of court in the machinery which we will set up.
"According to figure 1 paragraph 3 of the Penal Regulation for Poles, only the death sentence on the defendant can be meted out unless a less serious case can be realized in his favor. The senate was not able to recognize such a case under the circumstances accompanying the offense. The mere fact that the defendant left his place of work if considered separately, could be considered as a less serious case in the meaning of the law. For his flight was undertaken alone and had not been discussed with anyone else. But by using violence against the customs officer who was going to arrest him, and thus resisting the legal German authority, he has proved himself such a fanatical and violent Pole that he has forfeited any right for clemency. After the grave bloody guilt which the Polish nation has carried since the weeks of August and September 1939, it is the duty of every member of this nation to obey willingly the rules of the German authorities. A Pole who, on the contrary, uses violence against a German official can only be punished sufficiently by the highest degree of punishment. Accordingly, this has been applied to the defendant."
The Prosecution offers as Exhibit No. 128 Document NG *5.
THE PRESIDENT: It will be received in evidence, but is that really 128? My record shows 127.
MR. WOOLEYHAN: Our records show 128, Your Honor.
THE COURT: That is correct.
MR. WOOLEYHAN: Thank you, sir. Turning now to Page 74 of the English book, which is page 87 in the German Book, Document NG 352. NG 352 is another case record of the People's Court. When it was unearthed no indictment could be found which accompanied it. Since we cannot, supply the indictment that instituted this proceeding, we would like to refer in this connection to several pages of Exhibit No. 126 which was introduced last Friday. This was the Lautz affidavit.
THE PRESIDENT: While we are on that, I suggest that we have not been advised of any paging in the document book of that Lautz affidavit.
MR. WOOLEYHAN: Your Honor, we did not repage the document book to account for this document, since we will be referring to it but once or twice more only, and we thought that calling the Court's attention to the document itself could allow you to page through its eight or ten pages and find whatever pages we arc referring to, rather than repage it.
THE PRESIDENT: We have no difficulty in finding it, but-
MR. WOOLEYHAN: You would prefer to have the book repaged? We have not done it as yet.
THE PRESIDENT: It can be put either at the beginning or and of some book, so as to have everything uniform in the bock.
MR. WOOLEYHAN: In that connection then I suggest that the document be placed at the end of Book 3-A and repage it or not, whichever is most convenient.
Just slip is in at the end of the book.
THE PRESIDENT: It would then b come Page 147 of Book 3-A.
MR. WOOLEYHAN: Yes, sir. To recapitulate one moment, in view of the fact that Document NG 332, to which we have just turned on Page 74, bears no indictment, the Prosecution submits it is apropos to road the following excerpts from Exhibit 126, namely, the Lautz affidavit.
THE PRESIDENT: What document number did you say?
MR. WOOLEYHAN: Sir?
THE PRESIDENT: What document number of the Lautz affidavit?
MR. WOOLEYHAN: The Lautz affidavit is Document NG 659, but it was offered and accepted into evidence as Exhibit 126.
THE PRESIDENT: Yes.
MR. WOOLEYHAN: Reading from Page 5 of the Lautz affidavit, starting at the top of the page:
"When I entered my office as Senior Reich Prosecutor, the Reich Prosecution Office consisted of four departments. At the head of each there was a Reich Prosecutor. Each department had as specialists three First Public Prosecutors and a number of assistants with the rank of judges and prosecutors. I estimate that the total number of higher officials in the Reich Prosecution Office at the time of my assumption as Senior Reich Attorney was about twenty-five. This figure increased strongly during the war because of the expansion of the People's Court jurisdiction, partly as a result of the addition of new fields, partly due to the increase in political delinquency. The highest figure reached by the higher officials under my supervision amounted to about seventy, according to my recollection. The four departments were in creased to six, during the war, to correspond to the number of People's Court Senates.
At the same time, the number of First Public Prosecutors in each department was increased to five, and a Senior Public Prosecutor was added to each department.
"According to the existing regulations, it was my duty to sign all indictments, all suspensions of proceedings and all reports to our superiors, in other words, to the minister of Justice. These regulations were in force until the end of 1943 when, because of a partial transfer of our office to Potsdam it became necessary to entrust WEYERSBERG with my representation in the signing of the verdicts, suspensions of proceedings and less important reports prepared in Potsdam. When during the second half of 1944 and the beginning of 1945, the amount of work became so vast than some of it had to be taken away from no even in Berlin, a p rt of these matters were referred to my permanent deputy for signature, out in much a manner that important matters were still reported to me. This provision, of course, also applied to Potsdam. Indictments which I signed had to be read by myself, and I would in fact, read then. Of course, it wasn't expected of me and could not be expected of me that I study the individual records. I sometimes sampled then, however, particularly the very important cases. The heads of departments could develop considerable initiative, if they wanted to sec to it that much a case was treated properly and rapidly. I had neither the choice nor the desire to change much in the papers which my tried and trusted department heads submitted to me for signature. In general, I gave them free rein in other natters as well.
"Whenever it had been decided, with the consent of the department heads, to ask for a death sentence, I asked for the prosecutor of the case to report to me concerning the case in the presence of the department head.
I then either approved or disapproved of the death sentence in individual cases.
"It was always my principle to have omitted from the indictment any mention of the punishment to be expected, since it could not be foreseen whether, for instance, a case which was regarded as serious by us would not, during the main trial, turn out to be less serious. Reich Prosecutor ROTHAUG once made an attempt to have the rather sober form of verdicts used by my office changed, since ho felt that the verdicts had to be more political. He once submitted an example of such an indictment to me."
That will be all of the excerpts that we desire to read at the moment. We will turn now to Document NG-352, Page 74, Reich is Page 87 of the German Book.
"In the name of the German people, in the criminal proceedings against: the miner Florian Mazur, the locksmith Kubisz, the locksmith Nowakowski, for preparation for high treason and treason, the People's Court 2nd Senate in its main session of the 12 August 1942, represented by the following judges: "--interpolation, whose names we will not read-"has pronounced the following sentence:
"The defendants Florian Mazur, Mieczyslaus Kubisz and Alois Nowakowski are condemned to death, because they, as Poles, harmed the welfare of the Germ n People and because in a treasonable way they helped the enemy and also prepared for high treason."
Page 75, which is Page 89 in the German book:
"Reasons. The Personal Circumstances of the Defendants.
"All the defendants arc former Polish Nationals and also racial Poles.
"On the 1st September 1939 they were resident in the territory of the former Polish State.
"1) Mazur, after attending the Polish school in his home town Wapno was occupied as a worker in a plaster factory in the area of the former Polish State which was taken over by the Solvay works after the end of the campaign in Poland.
"2) Kublisz, after leaving a Polish school learned in the territory of the former Polish State, the locksmith trade and also worked as a locksmith. From February 1936 to September 1937 he did his military service in the Polish army, and then voluntarily remained in the army where ho was promoted to the rank of sergeant. He took part in the Polish campaign and fought against the German troops, and was taken prisoner. He returned to his homo at Podlin in the district of Wongrowitz and from the 16th of April to the 21st October 1940 also worked in the Solvay works in Wapno.
"Nowakowski"-- skipping to the last five lines of that paragraph --"From April to October 1940 he worked in the salt mines in Podolin in the district of Wongrowitz, which wore also taken over by the German Solvay works after the Polish campaign had ended.
"In October 1940 the defendants together with other Polish workers were sent to Buchenau in Thurinia to the soda factory which belongs to the Solvay works.
II.
The Facts The defendants, after previous agreement, left on 23 August 1941, their place of work at the soda factory of the Solvay works in Buchenau, Thuringia, went by train via Munich and Innsbruck to Feldkirch in the Vorarlberg and the next day crossed the Swiss border.
A few hours later they were stopped by a Swiss border official, taken bact to the frontier and handed over to a German border official.
III.
The argumentation of the Defendants and its Consideration.
The defendants state, that is page 90 of the German, that they wanted to and other work in Switzerland, that they had left their place of work although they knew that this was punishable. NOWAKOWSKI and KUBISZ testified that they did not like to work on Sundays and that they were not allowed to move freely during their leisure hours. They had also been punished by a fine of RM. 54. - each for an unauthorized visit to a circus and for arriving home late at the camp where they had been housed in a barracks together with 42 other Polish workers of the Solvay works; although they did not pay the fine. According to the statement made by the defendant KUBISZ the food supplied by the employer was insufficient, as it always only consisted of soup. MAZUR declares he was dissatisfied because a coupon (Bezugsschein) for shoes had been refused him, also the wage deductions had been too high. He also asserts that the work - he had been employed in the quarry of the factory - had been too hard for him, he had been afraid he would not get through the winter. He had hoped to find work in Switzerland as a shepherd.
All three defendants deny they had intended to join the Polish Legion in Switzerland, and deny any knowledge of the existence of the Polish Legion in Switzerland. MAZUR adds that he is unfit for military service, and NOWAKOWSKI states that he has had enough of military service.
"During the trial, the senate came to the conclusion that the defendants had the intention of joining the Polish Legion in Switzerland. The reasons given by the defendants for having left their place of work cannot justify their action. They had no reason to complain about the treatment at their place of work nor do they do so. Moreover, their net earnings were such that they were able to pay for their needs out of these, as is proved by the fact that according to their statement they had, when arrested, money on them, namely amounts of RM. 80, 70, and 10. Neither can the food have been insufficient since Mazur and Nowakowski did not criticize it, and Kubisz merely maintained which was not confirmed by the other two defendants that they received 'nothing but soup'. The fines which Wowakowski and Kubisz are alleged to have received for unauthorized visit to a circus and for arriving home at the camp, cannot either be considered grounds for the excape; for the defendants did not have to pay them. The same applies to the statement of Mazur that the work was too hard for him especially as he has given no reasons why he did not apply for lighter work, though he alleges he feared that he would not last through the winter. The further statements of the defendants according to which they considered themselves handicapped" -- "incriminated against" is obvious gibberish. It should be "handicapped" and the German word so indicates. "They considered themselves handicapped through Sunday work and through insufficient leisure, and of the defendant Mazur by being refused coupons for shoes, finally do not constitute valid reasons for leaving their place of work at the present time of intensified work and essential restrictions in the many necessities of life caused through the war. The defendants were also aware that they would be punished for leaving their work. "That the condition at the place of work could not really have induced the accused to escape is shown by the fact that they remained there for nearly one year. On the other hand, the labor-conditions in Switzerland as reported in the press, could not have raised their hopes of finding employment as foreign workers there. Thus the expectation of securing work in Switzerland could not or could not entirely have caused them to escape. The reasons given by the accused for their escape, are so ill founded that they may be considered as sheer subterfuges.