BY DR. SCHUBERT:
Q A last question, witness. Did Oeschoy help you personally as an official of the party at any one time?
A Well, in 1944, I had been denounced with the Gau leadership office of Franconia by a servant and her mother for my strictly catholic attitude. I was accused of having forced the maid to go to church on Sundays. If Oeschoy hadn't helped me at that time, I wouldn't have obtained any knowledge of the specific contents of the charges raised against me. Upon my request, Oeschoy found out about those facts and informed me about them in a letter.
That only enabled me to state my point of view concerning that denunciation. I turned over my statements to Oeschey who forwarded them to the office of the Gauleiter, apparently supporting them because later and again through Oeschoy I was informed that the case had been straightened out and that I should be without any concern about it.
Q Thank you, witness. That brings me to the end.
DR. KOESSL: I ask to be permitted to put a few questions.
BY DR. KOESSL:
Q Witness, do you remember the case of the Pole Serafin who as violent criminal was sentenced to death? The case was mentioned in Exhibit 556 of the prosecution.
A I remember the case. The Pole with a razor inflicted serious -at least dangerous injuried to a German girl, injuries on the throat.
Q Under the very same circumstances, would a German have been sentenced to death?
A In my opinion, yes. It was a clear case of a violent crime, such as at that time would have been punished by the death sentence against anybody.
Q Thank you. I have no further questions.
THE PRESIDENT: Are there any further questions? It appears that there is not. You may cross-examine.
MR. WOLLEYHAN: No questions, your Honor.
THE PRESIDENT: The witness is excused. Call you next witness.
HEINZ HOFFMANN, a witness, took tho stand and testified as follows:
BY THE PRESIDENT:
Q Hold up your right hand and repeat after me tho following oath.
I swear by God, the Almighty and Omniscient, that I will speak tho pure truth and will withhold and add nothing.
(The witness repeated the oath.)
THE PRESIDENT: You may be seated.
BY DR. SCHUBERT:
Q Witness, please tell the Court your full name and your profession?
A Dr. Heinz Hoffmann, District Court Counselor in retirement.
Q Dr. Hoffmann, were you a member of the NSDAP?
A Yes, I was a member of the NSDAP since the first May 1937.
Q Did you hold an office in the party?
A In the party I did net hold an office. I was legal adviser with the Hitler Youth from 1941 until 1945.
Q Since when were you a judge?
A I was a judge since 1933.
Q And when were you promoted to the position of Land Gerichtsrat, District Court Counselor?
A On the 1st May 1938 in Nurnberg.
Q Were you promoted once more?
A No, I was not promoted since. Once I applied for a promotion but that was not granted.
Q What was your work in the administration of justice in Nurnberg?
A First I was associate judge with the second penal chamber; in 1940 I was first temporarily and then permanently after a few months, I became associate judge with the Special Court.
Q Since when do you know the defendant Oeschey?
A I know the defendant Oeschey since the beginning of my work with this Special Court, first as an associate judge, then as deputy presiding judge, and later as presiding judge.
Q What can you say about Oeschey's manner of conducting trial?
A Oeschey's manner of conducting trial was frequently unsatisfactory. He had sometimes a clumsy way of, and a rude way of handling defendants and occasionally witnesses. He sometimes, if he was irritated, become aggressive in a disagreeable way. For instance, if a defendant tenaciously continued to deny facts or if his act was considered particularly abominable, he lose his self-control.
Q Witness, these occasional excesses on the part of Oeschey -- did they have an unfavorable result on the way the trial material was handled?
A No, that was not the case. In spite of that Oeschey always tried, made efforts to present and to establish the facts in the case as exhaustively and clearly as possible. He interrogated the witnesses in great detail and permitted them to say everything which was necessary for the clarification of the case.
Q What was the relation between Oeschey and the associate judges of the Special Court?
A Oeschey had good relations with the associate judges as colleagues, though from the human point of view one could not get very close to him. He tolerated the opinions of others and did not try to force his own opinion on them. Of course, he maintained a certain imposing attitude which is natural with the presiding judge, natural with the presiding judge of any court.
Q Did Oeschey ever use his function in the party to intimidate his associate judges?
A No, he did not do that.
MR. WOOLEYHAN: Objection, your Honor. It is not common to answer that question.
THE PRESIDENT: Will you repeat the question, please?
BY DR. SCHUBERT:
Q Did Oeschey ever use his function in the party--make use of his function in the party to intimidate his associate judges in a particular way?
THE PRESIDENT: The witness may answer.
A No, he did not do that.
Q Do you know of a case where an associate judge under Oeschey was reproached for his opinion dissenting from the opinion of Oeschey's and had disadvantages as a result?
A No, I do not know of any such case.
Q Did the associate judge Gross frequently utter an opinion dissenting from Oeschey's opinion in deliberations?
A Yes, he did so.
Q Go ahead.
A Oeschey permitted him to do so, but time and again there were differences of opinion between them.
Q Witness, did Oeschey ever pronounce a sentence where not at least two members of the Court had voted for it?
A No. he did not do so.
Q Did you witness any cases of Poles under Oeschey?
A I cannot remember that in detail.
Q Therefore, you are not in a position to tell us whether Oeschey was presiding or a case against a Pole by the name of Kwasnik, a case of abortion?
A No, I could not say that because I had nothing to do with that case. I once assumed that it must have been Oeschey purely on account of the time when that trial is supposed to have occurred but in the meantime I was persuaded that that was a mistake on my part.
Court No. III, Case No. 3.
Q Did Oeschey always insist that the most severe sentence should be pronounced?
A No, he did not do so. I even remember in individual cases where he gave cause for the pronouncement of more lenient sentences than demanded by the Prosecution.
Q Could you give us any examples for that?
A There was a case where ration cards had been stolen. I think it was the case Poebel and Bittner. At that time the Prosecution had received the directive to demand as sentence against the main defendant for reasons of the severity of the crime, the death sentence. But because that main defendant, the woman defendant, was young and had hardly any previous convictions, Oeschey refrained from pronouncing the death sentence. Another case concerned two women also. The names were Modell. In that case after an airraid, two young women had been roving around in the country and had committed fraud referring to the damage that they had incurred by the airraid. In this case the Prosecution also demanded the death sentence against the defendant, but it was not pronounced because the previous convictions of these defendants were few, and they had acted immediately under the impression of that serious airraid, and one assumed that there was a possibility for improvement .
Q Witness, did you take part in a trial and witness and take part in the sentence of a case which became known under the name of Freicorps Plaerrer?
A Yes, I took part in that care.
Q Can you remember how many defendants were sentenced to death?
AAs far as I can remember today, two defendants, the defendant Kurz and the defendant Mandiuk, as main defendants were sentenced to death. Kurz was the leader of that gang, a serious, severe criminal with the criminal name "Three Finger Jack." Mandiuk was an Eastern laborer who played an important part in the major crimes.
Court No. III, Case No. 3.
Q Could you also tell us on what acts the sentence was based?
A The main crimes committed by these defendants were cases of blackmail and beatings, which they had committed under the cover of darkness in Nuremberg on foreign workers. They took these people to the side under the pretense that they could trade cigarettes against food coupons. They they pretended that they were policemen or threatened them with beatings in order to obtain the cigarettes which they wanted to get. The case brought unrest into the population and it appeared necessary at that time to be very severe.
Q Do you still know on the basis of what provisions of the Penal Code these defendants were sentenced?
A Yes, I still remember that. The provisions about blackmail with robbery, Articles 250 and 255 of the Penal Code.
Q Did these paragraphs already provide for very serious penalties already before 1939?
A Yes, these provisions always made a severe penalty mandatory, that is, a minimum of five years in the penitentiary, one of the most serious provisions for penalty which the law knows.
Q And on the basis of what provisions was the death sentence pronounced?
A The death sentences were pronounced on the basis of Articles 2 and 4 of the Public Enemy Decree, because an act of such seriousness as blackmail and burglary committed under the cover of darkness necessarily was a very serious case, and therefore according to the law had to be punished by death.
Q Witness, in that case it was of importance that a raid had been committed on the Hitler Youth Home.
AAs far as the raid on the Hitler Youth Home was concerned, there were some other defendants who had taken part in it, different defendants than those who took part in the other robberies. There were primarily a large number of youths who took part in order to do some fighting.
Court No. III Case No. 3.
That part of the crime was what had started the whole case. But it was not the focal point of the case. Most of those who had taken part in the raid on the Hitler Youth Home were tried before the penal chamber or before the juvenile court.
DR. SCHUBERT: Thank you, witness. I have concluded my examination.
JUDGE HARDING: Witness, do you know of any case in which the two associate judges came to a verdict contrary to that favored by Oeschey when he was President of the Court?
THE WITNESS: I cannot remember any specific case of that nature. However, I know that Oeschey when he was faced with arguments from one or the other associate judge was quite open for these arguments. One could convince, one could persuade him, and one could even change his opinion. Yes, now I remember one case, especially in the case of that gang Plaerrer. There were a few juveniles before the Special Court, one or two. And I succeeded with the agreement of the other associate judge in persuading Oeschey that that young fellow did not belong in the penitentiary but in a juvenile prison. And indeed he was sentenced to a penalty provided in the juvenile law, namely, an educational penalty.
JUDGE HARDING: What I asked you was whether you knew of any case in which Oeschey as presiding judge was outvoted on the verdict by the associate judges?
THE WITNESS: No, I do not remember any such case.
JUDGE HARDING: Do you know of any proceedings in connection with the trial in which the associate judges outvoted Oeschey as President of the Court?
THE WITNESS: No, I do not know of any such case.
THE PRESIDENT: Is there any other direct examination?
DR. KOESSEL (For the Defendant Rothaug): May it please the Court, the Prosecution has submitted an affidavit from this witness as Exh. 556. I ask to be permitted to put a few questions in cross examination to Court No. III, Case No. 3.this witness.
CROSS EXAMINATION BY DR. KOESSEL:
Q Witness, on the basis of what points of view was Pirnak sentenced to death? That is the case which you mentioned in your Exh. 556.
A Pirnak was sentenced for sabotage.
Q Do you still know with certainty that Rothaug was presiding judge in that case in the main trial?
A I believe that I remember that, but with absolute certainty of course, I could no longer say that today.
Q In the case Murzyn were there any reasons to -- could one find out in that case how Murzyn obtained the primers?
A Murzyn had stated that he had found the primers. But it was not clear, it could not be found out where he really got them from.
THE PRESIDENT: The next question.
BY DR. KOESSEL:
Q On what assumption did the judges base themselves, that is, the majority of the judges?
A In the case Murzyn it was assumed that he had stolen the primers, because any other possibility to obtain them did not exist at that time, because even if he had found them, he only could have found them at a place of work and would have had to turn them in.
Q. The death sentence against Pavula and the four codefendants, was that based on the penal decree against Poles?
A. No. All the defendants in that case were sentenced according to the penal code, the Public Enemy Decree, and the Decree Concerning Looting.
THE PRESIDENT: What was the name of the first defendant in that case?
DR. KOESSL: Pavula. I will spell it. P-a-v-u-l-a-, and four codefendats. It is on Page 9 of Exhibit 556.
THE PRESIDENT: The decree is in evidence in that case?
DR. KOESSL: No, the verdict is not submitted in evidence.
BY DR. KOESSL:
Q. Can you tell us on what individual facts the legal reasons for the verdict were based?
A. No, I could no longer say that.
Q. Can you tell with absolute certainty that Rothaug was presiding judge in the main trial?
A. No, I can't do that. I think that that was the case, but I may be mistaken, of course.
Q. In the case of Salisch, under the same circumstances having committed the same crime would a German have been sentenced to death?
A. Salisch was the man--
THE PRESIDENT: You can answer that question yes or me, if you know, which probably do not.
BY DR. KOESSL:
Q. That was a case of looting at the office of the president of the police.
A. I can answer that question with " yes".
Q. Did you have anything to do with the case Serafin? Did you have anything to do with the case Serafin? He was a Pole who injured a farmer's daughter with a razor.
A. No I had nothing to do with that case
Q. On what do you base your description of that case in Exh. 556 them?
A. I was shown a report in the press about that case.
Q. In the case Wendel did the second trial result in establishing the facts which according to the Reich Supreme Court constituted a particularly serious case?
A. Yes.
Q. The sentence in the case Schaegerer, was that in accordance with the sentence and the practice of the Reich Supreme Court?
A. Yes.
Q. Also as gar as the application of Paragraph 51, Section 2 was concerned?
A. Yes.
Q. In the case Wild were you a Prosecutor or an associate judge ?
A. No.
Q. Do you remember whether in the case Wild a motion for reopening of the trial was made?
A. Yes. That motion was made.
Q. Did the penal chaber admit that the case be reopened in the regular proceedings?
A. No. the reopening was not granted.
Q. Was Rothaug the judge when the reopening was refused?
A.. No; he had nothing to do with it.
Q. In the case Kreisle were you a judge?
A. No.
Q. Did you read the opinion?
A. No.
Q. On what do you base your statements about the case Kreisle in Exh. 556?
A. Again on a report in the press which was shown to me.
DR. KOESSL: Thank you. I have no further questions.
THE PRESIDENT: Is there any other direct examination? You may cross examine.
MR. WOOLEYHAN: No questions, Your Honor.
THE PRESIDENT: The witness is excused.
DR. SCHUBERT: May it please the Court, I have to submit three document books and two small supplements. I have just asked to have the document brought here and ask to be permitted to wait a few minutes. They will be here right away. May I begin with Document Book 3, Your Honor ?
THE PRESIDENT: What was your last exhibit number? 81?
DR. SCHUBERT: 81; yes. May I begin now?
THE PRESIDENT: Yes. I was going to ask you if you could introduce them with as much expedition as possible.
DR. SCHUBERT: In Document Book 3, 4, and 5 there are excerpts from court files, and in some individual eases explanations from the legal literature and supplements of a similar nature. The furst document in Document Book No. 3 is No. 71 an excerpt from the files in the case against Boehm. First the indictment. I refer to its first page, from which it can be seen that the Prosecution demanded the death sentence. Then there is the verdict, Document No. 71 is submitted as Exh. 82.
THE PRESIDENT: Received.
DR. SCHUBERT: In connection with that case I submit as Document 46 an extract from administrative regulations concerning criminal law dealing with the theft of goods on the Reichsbank, Document 46 as Exh. 83.
THE PRESIDENT: Received.
DR. SCHUBERT: Also concerning the case Boehm, Document 32 to be Exhibit 84 a decesion by the Reich Supreme Court, where the Supreme Court pronounced the death sentence for continued thefts in a case where the nullity plea had been filed.
THE PRESIDENT: Received.
DR. SCHUBERT: Also Document 87 belongs to the Boehm case. Also a decision of the Reich Supreme Court.
I offer it as Exhibit 85.
THE PRESIDENT: Received.
DR. SCHUBERT: Document 152 offered as Exh. 86 deals with the case Giani and Sala. The first part of the document contains the indictment. I should like to draw the attention of the Court to Page 3 of the indictment. That is Page 16 of Document No 3. At about the middle of that page there is the motion made by the Prosecution to appoint a defense counsel for the accused Giani and Sala. That mean that the prosecution intended to demand death sentences for these two defendants. Then there are a few extracts from the police interrogation records which support the statement made by the witnesses, and then the sentence.
THE PRESIDENT: The exhibit is received.
DR. SCHUBERT: Document No. 50 offered as Exh. 87 is an extract from the files of the case against Irmgard Hofmann. On Page 31 of the Document Book there is the sentence, on Page 37 the decree the motion granting the motion for reopening of the case, and finally the decision to disallow the motion for reopening of the trial.
THE PRESIDENT: The exhibit is received.
DR. SCHUBERT: The next document, 64, is offered as Exh, 88, an extract from the files of the Jankovic case. The first document contains proof that the warrant was served to the defendant Jankovic. The second document is a report by the administrative of the prison, according to which Jankovic had fled, and on Page 42 I am submitting an extract from the indictment of the following reason. The Prosecution has already submitted in evidence the indictment in the case Jankovic, but in the document submitted by the Prosecution from the stereotyped form of the indictment the passage appointment of defense counsel has been copied with out being crossed out, which permits the assumptions that the Prosecution actually asked for a defense counsel to be appointed. In fact, however, as one can see from the files, that was not the case, but on the form the motion for appointment of defense counsel is just crossed out.
Then I come to my Document No. 63, the sentences of the Special Court in the case Koch, offered as Exhibit 89.
TEE PRESIDENT: ** and 89 will be received.
DR. SCHUBERT: Document Do. 74 is offered as Exhibit 90. It is an extract from the files of the case Collischan. I refer particularly to the first document of that extract, according to which the General Public Prosecutor issued a directive to the Senior Public Prosecutor to demand the death sentence.
THE PRESIDENT: The exhibit is received.
DR. SCHUBERT: Document 53 is offered as Exhibit 91. It is an extract from the files of the case against Katharina Meyer. It contains the death sentence.
Document No. 70 is offered as Exhibit 92. It is an extract from the files of the case Pirner.
THE PRESIDENT: 91 end 92 are received.
DR. SCHUBERT: In this indictment, may I point out that on Page 67 of the document book, the prosecution in the case of Pirner referred to Paragraph 1 of the amended law. Document 53 also has to do with the case Pirner; it is offered as Exhibit 93. Document 153 is an extract from German law. Furthermore, I submit document 80 as Exhibit 94, an extract from the Juvenile Court Law.
THE PRESIDENT: Received.
DR. SCHUBERT: The two following documents, I do not submit, because they have nothing to do with the case as such.
THE PRESIDENT: Which ones?
DR. SCHUBERT: Documents 159 and 146. These documents deal with a law which was not applied in the sentence of that case. However, the Document 162, which I offer as Exhibit 95. still refers to the Primer case.
THE PRESIDENT: Received.
DR. SCHUBERT: Also Document 111, which I offer as Exhibit 96.
THE PRESIDENT: Received.
DR. SCHUBERT: And Document No. 43, offered as Exhibit 97, is a decision by the Reich Supreme Court - a decision as early as 1908 which states that in the case of a criminal who has committed his criminal act partly before the 18th and partly after the 16th birthday, the Juvenile Law cannot be applied.
THE PRESIDENT: Exhibit 97 is received.
DR. SCHUBERT: May I be permitted to point out to the Court in this connection that Article 57 of the Penal Code, which is mentioned here, was the provision enforced at that time, in 1908. It was later replaced by the Juvenile Court Law. Document No. 66 is offered as Exhibit 93; it is an extract from the files of the case Schnaus. It contains the indictment, the sentence, and an opinion rendered by the General Public Prosecutor concerning the clemency question.
Document 137 offered as Exhibit 00, also relates to the case Schnaus. Likewise, Document 128, offered as Exhibit 100, a decision by the Reich Supreme Court. Also, the decision contained in the Document 77 offered as Exhibit 101 still relates to the case Schnaus.
THE PRESIDENT: Just a moment, please. 98, 99, 100 and 101 are received.
DR. SCHUBERT: Document No. 48 is an extract from the files of the Sponsel case. Since some of the files have already been submitted by the prosecution, I only submit the indictment and emphasize that according to Page 1 of that indictment, the prosecution demanded the death sentence. It is offered as Exhibit 102.
THE PRESIDENT: It's received.
DR. SCHUBERT: Also in connection with the case Sponsel, I offer Document No. 39 as Exhibit 103, which contains principal rules concerning the thefts of field post mail. Also, Document No. 10, offered as Exhibit 104, is a decision by the Reich Supreme Court concerning field post thefts. Document 86, offered as Exhibit 105, likewise is a decision by the Reich Supreme Court.
THE PRESIDENT: 104 and 105 are received.
DR. SCHUBERT: May I ask if the Tribunal has already decided about the exhibits 102 and 103?
THE PRESIDENT: Yes. They are received.
DR. SCHUBERT: Document 184 is offered as Exhibit 106. It is the sentence against Barth and others. That case was mentioned by the prosecution in connection with the Sponsel case.
THE PRESIDENT: It's received.
DR. SCHUBERT: Document 164 is offered as Exhibit 107. It is an extract from the so-called Leipzig Commentary, which was frequently quoted here. These statements refer to the case which was dealt with here, a case in which foreigners had picked, up food ration points which had been dropped from airplanes.
THE PRESIDENT: Received.
DR. SCHUBERT: Document 165, offered as Exhibit 108, is an extract from a Judge's Letter and also refers to the use made of ration points drooped by Allied planes. The same applies to Document 11, offered as Exhibit 109.
THE PRESIDENT: 108 and 109 are received.
DR. SCHUBERT: As well, is Document ll4, which is offered as Exhibit 110.
THE PRESIDENT: The exhibit is received.
DR. SCHUBERT: This concludes the submission of Document Book III . May I begin with Document Book IV now? Document Book IV contains cases of habitual criminals; whereas Volume III dealt with the Public Enemy Decree. The first extract is that of the case Bachhuder, Document 79, offered s Exhibit 111. Page 1 of that extract shows that the prosecution intended to demand the death sentence. Page 2 of the indictment is where a notation can be found.
THE PRESIDENT: The exhibit is received.
DR. SCHUBERT: Document 132 relates to the case Bachhuber. It is offered as Exhibit 112.
THE PRESIDENT: Received.
DR. SCHUBERT: Also, Document 83, affidavit by Bachhuber's defense counsel.
MR. WOOLEYHAN: Your Honors, with respect to the document just offered, the affidavit Kroher, that affiant wan cross examined here on the 22 of May by defense counsel, on the same case in which this present affidavit is offered. I object to the affidavit on the grounds that the witness was here and available and could have been made the defense's own witness, if they so chose.
DR. SCHUBERT: May it please the Court, may I replay to this? What the prosecutor has just said is essentially true. The witness Kroher was here. He had given an affidavit to the prosecution, and on the basis of that affidavit, I cross examined him. At the time when I conducted, the cross examination of the witness, I did not have in my possession the files of the Bachhuber case. I had not received them at that time from the prosecution. When I received them at a later date, I found out that the statements made by Kroher in the affidavit given to the prosecution were incorrect. Thereupon, I asked attorney Kroher to look at the files. Attorney Kroher, without my asking him, told me that he intended to correct these statement, whereupon he gave me that affidavit which I offer as Document 83 to the Tribunal. That affidavit, therefore, serves to avoid a mistake which the witness incurred in good faith, and it also serves to establish the facts, such as they actually occurred. Therefore, I believe that the acceptance of this affidavit should not fail for formal reasons.
THE PRESIDENT: What was the date of his examination before?
MR. WOOLEYHAN: The 22nd of May, Your Honor.
THE PRESIDENT: Was that before the commission?
MR. WOOLEYHAN: Yes, Your Honor.
THE PRESIDENT: We will recess until one-thirty this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing recovened at 1330 hours, 15 September 1947.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Before you proceed with your documents--some days ago, the Tribunal, in open court, stated the imperative necessity for the making of a proper application without delay in the event that any witnesses who had been approved by tho Tribunal should be desired by counsel for tho defense, from zones outside of the American zone in Germany. The application which Dr. Schilf has presented does not comply with the requirements which we set forth. It does not set forth the evidence from which it is possible for the Tribunal to determine whether the documents or the evidence desired is material or necessary to tho proper presentation of the defense under the provisions of Rule 12 of this Tribunal.
I call attention to that fact. The Tribunal has just, after great difficulty, received information--but inadequate information--concerning these requests for witnesses and documents. We are preparing as order which merely attaches to the order the application of Dr. Schilf with the request and the direction to the Secretary-General to take such steps as are required and provided for in Rule 12, Paragraphs (c) and (d), in an attempt at this late hour to secure the witnesses who have been requested. If they are not found, counsel will have no ground for objection.
Tho Tribunal is doing everything in its power to secure them, notwithstanding tho fact that we do not have the detailed information which the rules require previous to the making of this order. I might add that the only information that there is in this application is by reference to applications which were made and approved and have been filed in the archives at different times over a period of many weeks. It certainly was asking too much of the Tribunal to check all of these applications. We have done the best we can, and the order will be issued and will go to Berlin to the Control Council for such help as we may be able to obtain from them as to the witnesses who are outside of this zone.
Now you may proceed.
The objection which was made to the last affidavit which was offered is overruled. The exhibit is received.
Exhibit 113 is received. Exhibit 112 is also received.
DR. SCHUBERT: Document 183, Exhibit 114, is an excerpt from files from the Bauer case. I refer you to page 14 of the Document Book which contains the indictment. On the first page it says that the prosecution intended to ask for the death sentence. The document also contains the sentence which was passed.
The next document, No. 73, will be Exhibit 115. It contains a motion for evidence by the defendant Becker. I included that motion in the document because attorney Kern, in his affidavit, Exhibit 232, complained that his motion for evidence had not been allowed. From the record taken at the trial, which was also incorporated in my document, one can see that Attorney Kern at the trial did not make a further motion for evidence I offer Exhibit 115.
THE PRESIDENT: 114 and 115 are received.
DR. SCHUBERT: Document 182 will be Exhibit 116. It contains the indictment and the verdict in the case against Fluhrer. I refer you to Page 2 of the Document, Page 36 in my document book, where you will see that the defendant Fluhrer was convicted under Article 1 of the so-called Amendment Law.
The next document also relates to the Fluhrer case. The number of this document is 20, and the exhibit number will be 117. It contains extracts from the decision by the Supreme Reich Court. Document 51 will be Exhibit 118. It contains extracts from the files of the Friedchen case. It contains the sentence, and also on Page 1, two documents from the proceedings of the prosecution, which show that the prosecution asked for the death sentence on Friedchen.
The next document, No. 97, also relates to the Friedchen case. Its exhibit number will be 119. This is a decision by the Reich Supreme Court which emphasizes that it does not matter whether a habitual criminal only got away with small proceeds at his last offense.
The next document, 163, which I am offering as Exhibit 120, also relates to the Friedchen case and to some other cases which follow. They contain basic statements from the Leipzig Commentary, which I have quoted several times, and they relate to Article 51 of the Penal Code; in particular, concerning the question of mitigating circumstances under Article 51 Section 2.
THE PRESIDENT: Exhibits 116, 117, 118, 119 and 120 are received.
DR. SCHUBERT: Document 34, which will be Exhibit 121 also relates to the Friedchen case and other cases where mental deficiencies play a part. This is a decision by the Supreme Reich Court, which was a basic decision for the interpretation of Article 5l Section 2.
THE PRESIDENT: It's received.
DR. SCHUBERT: Document 98, which I am offering as Exhibit 122, also contains a decision by the Reich Supreme Court concerning Article 51; and Document No. 30, which will be Exhibit 123, contains a decision by the Reich Supreme Court which was passed in connection with the problem constituted by Article 51 Section 2 concerning habitual criminals.
THE PRESIDENT: 122 and 123 are received.
DR. SCHUBERT: Document No. 40 relates to the same problem. I am offering this document as Exhibit 124.
THE PRESIDENT: Received.
DR. SCHUBERT: It contains extracts from the book of criminal law and deals with the problem of Article 51 Section 2 and the amending law.
The last document which is concerned with this problem is No. 150. It exhibit number will be 125. It contains extracts from Professor Schoenke's Criminal Code published in 1947. It shows that the basic decisions made by the Reich Supreme Court, which I quoted before, still valid in German legal practice today.
THE PRESIDENT: Received.