on the one side the punishment of a dangerous habitual criminal could and had to be increased and that to penal servitude up to 15 years (Article 20a Penal Code) and apart from that the court had to order security detention besides the punishment if it was in the interest of the public (Article 42e Penal Code).
This security detention had to be served after the expiration of the time of punishment; it was unlimited on principle, however it had to be re-examined in periods of 3 years each in order to ascertain if it had to be maintained or if the criminal in question could be released as improved on account of it having served its purpose.
The War Penal Code at first brought no new provisions against dangerous habitual criminals. Only in 1941 and that by the Amendment of 4 September 1941 quoted so often the death penalty was forcioly introduced against dangerous habitual criminals under certain suppositions.
The defendant Oeschey has stated in the witness box in which cases he had made use of the law of 4 September 41 in conformity with jurisdiction of the Supreme Court, namely, when a habitual criminal according to his previous life had to be regarded as incorrigible. There is no doubt that the law of 4 September 1941 was hard, as to whether it was forcibly caused by the circumstances of war cannot be examined here. It was enacted and the defendant Oeschey was obliged to apply it. That in doing this he always recklessly inflicted the severest punishment has been contested by him in a manner worthy of belief, and by citing many cases. All cases of habitual criminals produced by the prosecution have been discussed and proved by documents. There should be no case among them in which the incorrigibleness of the perpetrator in question has been wrongly assumed.
Next to the cases of habitual criminals the cases of public enemies plan an important part in the jurisdiction of the Special Court. Briefly here it is a matter of all these offences which somenow nave been caused and facilitated by exploiting the conditions of war be it by Black-Out or any other circumstances caused by the war (air attack, field-post cummunication etc.).
While in trials before the Special Court a death sentence was the rule in cases of habitual criminality, as the prosecution generally tried such cases there only if it considered the act deserving capital punishment, one has to call capital punishment exceptional punishment when reviewing the public-enemy judicature. I have substantiated this by my Exh. 29 wherein a review of a crosssection of Oeschey's administration of justice was submitted, namely those cases where documentary material was available. As the defendant has also shown by several specially chosen cases in the witness stand, which have been mentioned by me before already, capital punishment was meted out in these cases only if there was actually no alternative according to law and legal decisions of the highest court, if these acts had therefore been committed to an excessive degree or an especially sensitive spot in the war-conditioned life of the population had been touched or even exceptional baseness or meanness of character had been demonstrated, and I believe that a large measure of the sentences passed at that time were considered to be just by the population, a population which at least since 1943 when Oeschey took over as Presiding Judge at the Special Court, found itself continuously in danger of life due to the increased severity of air-attacks and thereby lost their former estimate of the value of a human life and had to lose it.
Those same people are also today, due to their distressed conditions of life, demanding the death penalty time and again for profiteers and blackmarketeers.
So Oeschey's sphere of work at the Special Court was mainly that of real criminality. Political offenses compared to those remained in the background. Cases of so-called seditious undermining of the defense spirit according to Article 5 of the Extraordinary War Penal Law offered here from the period in which the Special Court operated, are merely those of Therese Mueller, mentioned before by me already, and that of Fischer which should be quite obvious. Neither of those cases were utteranceoffenses according to Paragraph 5, Number 1, but first of all inducement to desertion (Paragraph 5 Number 2) and in the other case self-mutilation(Paragraph 5, Number 3.)
The much discussed Law against Pules and Jews played no part in Oescheys judicature either. Of the few cases against Poles tried by Oeschey at all and ending in a sentence, two were decided according to the law against crimes of violence and another verdict was passed before this law concerning Poles and Jews was issued. A fourth and last case ended in a verdict of not guilty. Further cases could not be proved by the prosecution and there should not be any further ones as Oescney's share in the cases against Poles at the Special Court was very small due to the distribution of cases, and as also has been testified to by the witnesses Ferber (Transcript Page 1420), Baumler (Transcript Page 3831) and Paulus (Transcript Page 3784). Oeschey has therefore never taken the criminal element, the measure of punishment, or the type of punishment from the law concerning Poles and Jews and his statement regarding application of Article III of the law concerning Poles in passing prison sentences (Transcript Page 8612) was merely a hypothetical answer to a question by the Court taken as hypothetical by the witness.
Justice has always been meted out to other foreigners aside from Poles while Oeschey was Presiding Judge, justice which also was applied to German nationals if they committed an offense. It is not contrary to a principle of International law, it is rather according to the law of all civilized States that the foreigner if he commits an offense in this country will be punisned according to the same law as the native committing the same offense. So if the home-laws are stringent then the foreigner has to abide by the fact that he will be treaded according to the same stringent laws to which the native is subjected. The demand that the foreigner is to conduct himself decently and commit no offense is not asking too much and is certainly no system of extermination levelled against foreigners if they are sentenced in regular court procedure and sometimes even sentenced to the limit in so far as this was advisable and permissible according to the common German Penal-law; otherwise one would come to the conclusion that the German State would also carry out a policy of extermination against its own citizens by its administration of justice, a conclusion tne impossibility of which is naturally obvious.
In its indictment and opening statement the prosecution has tried to show, that proceedings before all German Courts, and especially before Special Courts, had only been a farce, had only be a travesty of proceedings and that the laws had only been abused in order to make it appear like a trial to the defendant. This Tribunal had the opportunity to listen to a large number of witnesses in regard to the proceedings before the Special Court and I as well as my colleagues, yes even the prosecution have submitted a considerable number of documents from which conclusions may be drawn regarding this procedure.
It is very unfortunate that the Court did not have the opportunity to choose from the hundreds of available Court records some samples offhand and examine them as to the fact whether the proceedings were conducted in an orderly manner, whether they were in accordance with the code of criminal procedure and whether in every case the basic rights of the defendant which are accorded to him in every civilized country had been preserved. An examination of this kind would have convinced the Court that this had been the case; but I believe that also the cases submitted and substantiated by the testimony of witnesses and documents during the proceedings have convinced the honorable Court of the absolute regularity of the Court proceedings which took place.
The war brought about a considerable simplification of criminal procedure. Many a ruling has been dropped which had been at constituent part of the Penal Code for decades. But it has never happened that the criminal procedure as such, - at least not before the Special Court of which my client was in charge, - degenerated into a sham-procedure, and I would like to point out especially in this connection that just this formal incontestability of the Special Court's sentences forced this Court to pay special attention and care to the adherence to regulations of procedure; that is not only a nobile officium but an officium legale of final Court of appeal and no trespassing against this officium has been proved against Oeschey. The sentences passed by the Special Court were besides subject to a facilitated judicial review and later on also to the so-called nullification plea so that defects in the procedure easily could have brought about abrogation of the sentence and re-institution of proceedings.
But abrogation of sentences on account of defects of this kind have actually never occurred in Oeschey's case. Cases have moreover been offered to the honorable Court, testifying to an especially careful preparation of the hearing in court by Oeschey as for instance the case Midy (Transcript Page 3743 and Oeschey Exh. No. 18) or the case testified to by the witness Kern regarding acceptance of a very doubtful motion for evidence to be taken (Transcript Page 3807 f). On the other side charges in the affidavits offered by the prosecution regarding restrictions of the defense, especially unjustified rejection of motions for evidence to be taken have collapsed so for instance the case Bachhuber, testified to by the witness Kroher (My Exh. 113), as well as reproaches on account of alleged non-consideration of affidavits offered by Court-physicians. It has really been testified to by all witnesses here interrogated that especially Oeschey was careful and conscientious while taking evidence and while getting at the facts of a case, that he considered the points in favor of as well as also the ones against the defendant and that he tried to gain all the information necessary in order to come to a fair judgement. Instead of many I merely mention the statements made oy witnesses (Transcript Page 8807, 8817) and my Exh. 17, 19, 20, 21, 22. So the procedure before the Special Court including that before the Summary Court (Standgericht) offered to the defendant always the same rights which he can demand from imppartial proceedings, that is his own testimony, testimony by witnesses in so far as their testimony is of any value, assignment of counsel in any case where the defence cannot be expected of the defendant himself, paying attention to important testimony submitted by the defense end the passing of judgement merely on testimony offered at the hearing as permissible evidence, accordingly not the application of the documents as such especially not the police investigation material.
To this list of the defendants basic rights belongs also adherence to the principle anchored in the Constitution of the Reich that no one may be deprived of his lawful judge. The prosecution tried to prove the institition of the Special Courts directly as an example for the fact, that the defendants placed before this tribunal were deprived of their lawful judge. But it cannot be understood why the legislator may not institute Special Courts competent for certain types of offenses provided that every defendant committing an offense of this type has to answer charges before them. An institution of this kind would only become suspicious if it was established for certain individual cases. But if oy legislation a Court is established which is competent for an unlimited circle of people then no doubts on principle arise and it has always been so in the German courts constitution that Courts with different personnel became active in different stages of appeal all according to whether it concerned certain types of offenses or whether a less severe or more severe punishment was to be expected. The Special Courts were also not singled out from the existent Court-system, but they were established within the District Courts for the area under the jurisdiction of the District Court of Appeal, they were therefore part of the District Court Just as for instance the Criminal Division Court whose staff did not differ from those of the Special Courts after lay judges were not used any longer. The only difference between the Special-Courts and the Criminal Division Courts was since the beginning of the war only, that sentences passed by the Special Courts became effective immediately, a difference which in the course of the war tended more and more to disappear on account of the fact that on the one hand the nullification plea was instituted while on the other hand appeals against sentences passed by the Criminal Division Courts were curbed.
- The supposed summary jurisdiction before the Special Courts, has with few exceptions, practically been only paper-talk. A perusal of the Court records available would show, that generally 3-4 weeks elapsed between the time that the summons was served and the time of the Court action so that a sufficient period of time remained for the defendant to prepare his defense. Not once has Oeschey as Presiding Judge of the Special Court been accused of so-called summary jurisdiction.
A number of witnesses have criticised certain aggressive remarks by Oeschey at the trial. These aggressive remarks have been described in the affidavits offered by the prosecution in exceptionally strong language, - often for lack of really sweeping argumentation as to the facts. I believe that the defense reduced the impression gained thereby to the extent which is really its due.
Oeschey has admitted that he sometimes became agressive and he has also not tried to find an excuse for it as this is not compatible with his position as Judge.
By this testimony and quite a number of additional statements by witnesses (My Exh. 2, 3, 7, 8, 19,-21, 23-28 and Transcript Page 3519, 3819, 8817) I have proved however, that these aggressive remarks of his were not method and that they were really not made without reason even though in individual cases they exceeded moderation, too. The fact generally ascertained and testified to by all witnesses that the procedure did not suffer under it in the sense of an objective ascertainment of the facts of the case, reduces these aggressive remarks to the importance they really had, namely the importance of blemist.
As they had no disadvantageous consequences for the defendant they cannot possibly represent a punishable act in the sense of the law issued by the Control-Council. They are not inhuman acts perpetrated on the civilian population in line with those under Article II Number 1c mentioned examples such as murder, extermination, enslavement, violation and so on. They are also possibly not considered as such by the prosecuting authorities but have only been mentioned as evidence for unjust conduct on the part of Oeschey but for which no proof has been offered; in contrast I was able to offer counter-evidence that these aggressive remarks had no disadvantageous consequences for the defendant.
Several judges have complained about Oeschey's conduct while deliberating. Endeavoring to detach themselves from their former conduct they designate themselves nowadays as violated or even as having been under hypnotic or magic influence. May I be spared from entering into agruments regarding trivialities of this kind. A whole number of witnesses have testified that one could certainly talk to Oeschey, so for instance Dorfmueller (Transcript Page 3208 fol.), Markl (Transcript Page 8809), Moffmann (Transcript Page 8818) and my Exh. 15,16,17,18,19,21. none of the witnesses heard has testified that while Oeschey was Presiding Judge a verdict was ever reached without the necessary majority of the judges.
Individual Cases This High Tribunal repeatedly expressed its opinion that in the case of the accused judges it was not intended re-examine the material justness of their decisions in individual cases, out the regularity of the procedure.
The same point of view had already been taken by the Prosecution in its Opening Statements However, it did not keep to this rule of conduct in the presentation of their evidence, on the contrary, especially in the Oeschey case it contested in an estraordinarily great number of individual cases the material justness of the decision, particularly by way of affidavits of Prosecution witnesses submitted in great number.
Consequently the Defense was obliged to deal with these individual cases in its plea, also as regards the facts of the cases and the application of the statutory criminal law. I think that the pleas of the Defense were apt to bring the Tribunal to the conviction that the administration of the law remained in all cases within the compass of the law, this framework being, if necessary, supplemented by showing the aim of the legislator and the guiding legal decisions of the lerman Supreme Court.
1. (Cases in which foreigners were involved) In the discussion of the individual cases there can and must, in my opinion, first of all be suppressed all those for which the Prosecution neither produced excerpts of records nor submitted documents and for which the testimonies of witnesses do not produce a picture which either makes it approsimatively possible to ascertain the facts of the case and the application of the law with a probability approaching certainty.
In this connection I am thinking of two cases which were mentioned by the witness Eichinger (Exh. 227 p. 80), the presentation of which is only explicable by the endeavour of the Prosecution to show Oeschey's Judicature on foreigners in a lignt as unfavourable as possible. One of these cases is that of a Pole who was allegedly sentenced to death because of threatening a person with an axe. (Exh. 227, p. 82) and the other one that of the Frenchman Blondel (Exh. 227, p. 82). Oeschey has already explained the latter one in the stand and has, in my opinion, cleared it up.
On principle, I am nowever of the opinion that cases for which the material is so insufficiently substantiated should not be taken into consideration for the decision of the Tribunal. The material of the Prosecution in the case of the Pole, which had been mentioned by the witness Lipps (Exh. 228, p. 85, and Transcript Page 3374), is also absolutely insufficient; it was only cleared up by Oeschey in the stand, incidentally in accordance with the testimony of the witness Lipps in the crossexamination.
One of the cases which were insufficiently explained and proved by the Prosecution is also the case of the Pole Kwasnik (Affidavit Kern Exh. 230 p. 120). It may be necessary to deal shortly in particular with this case in the final plea, since the witness Kern during his cross-examination (Transcript Page 3809) brought the Kwasnik case into connection with Oeschey, whilst Oeschey in the stand expressly denied his participation in this case. A number of circumstances confirm the truth of Oeschey's testimony. First of all it must be stated that the witness Kern - and unfortunately I have to state the same with regard to various affidavits of my Nuernberg colleagues - made his depositions with a certain levity and that he could already be convinced of errors in other cases, e.g. incorectness of his testimony about the Durka and Struhs cases and about the Plaerrer Irregular Volunteer Unit case as well. In the latter case Kern alleged three death sentences in his affidavit, whilst only two were actually passed, as results from the testimonies of Mueller (Transcript p. 3773), Oeschey (Transcript p. 8657) and Hoffmann (Transcript p. 8819). It was contested by Oeschey himself in a credible form that he was presiding judge in the Kwasnik case, furthermore it was not confirmed either by the witnesses Markl and Hoffmann who were involved in this case.
A comparison of his statements with excerpts from the "Fraenkische Tageszeitung" of 26 September 1941, which were read by the witness Kern in the re-direct examination (Transcript p. 5809), shows the inaccuracy of the witness Kern recollection of the Kwasnik case. Namely, Kern gives in his affidavit as the date for the verdict the years of 1943/3, whilst the article in the Fraenkische Tageszeitung which appeared immediately after the trial is dated 26 September 1941. Furthermore Kern states that the Pole was under 20 years, whilst the newspaper gives his age as 22 years, Kern says that the Pole was not guilty of the woman's death, whilst according to the newspaper article it was established that the abortion was causative for the death of the woman. These are significant inaccuracies from which it can be inferred that the recollection of the witness Kern is also erroneous with regard to the person of the presiding judge, at all events that the sentence to be passed on Oeschey cannot be based on such a case being considered as tried by him, since, as it was always emphasized also in the verdict in the medical physicians trial, for a conviction the actual facts of a case must be established in a way excluding any doubt. However, this was not done in the Kwasnik case, neither as regards the person of Oeschey, nor in general as regards the facts of the case from which it appears in no way for what reason and for which particular crime the Pole had been sentenced. The only fact that has been proved is that the Pole had not been sentenced because of his intercourse with the German woman. For the rest, as a conclusion of this case, I take the liberty of calling the attention of the Tribunal to the fact that Kwasnik, whose trial must have taken place shortly before the 26 September 1941, cannot have been sentenced according to the decree concerning Poles and Jews which was issued after this date but only by virtue of the general criminal law which was also applied to every German.
A similar deficiency of evidence exists in two cases to which the Prosecution called special attention and which it dealt with in various affidavits and testimonies. These are the cases of the Plaerrer Irregular Volunteer Corps and the case concerning the ration cards dropped by Allied planes. In the Plaerrer Irregular Volunteer Corps case at least an indictment could be found which showed the names of the defendants in this trial. By virtue of this indictment the defendant Oeschey could refresh his memory and gave in the stand a plausible and unrefuted explanation of the case which was also confirmed by the witness Hoffmann (Tr. o. 8819). The very superficial affidavits of the witnesses of the Prosecution, in particular Mueller (Exh. 149, p. 62), Kroher (Exh. 230, p. 100) and Kern (Exh. 232, p. 118) , stating that a school-boy's prank had been committed and thataa political affair had been made of such a boyish prank were refuted by this reasonable and detailed explanation. The two witnesses Oeschey and Hoffmann set forth in a convincing manner that it was a case of extortion committed by violence which in conjunction with the Law against Public Enemies had to be punished in the case of two main defendants by death sentence, and that not more than two defendants were sentenced to death.
In the case of the ration cards dropped by Allied planes the material is still more scanty, here any support by documents was lacking; it was not even possible to find out the names of the defendants. The conjectures of the Prosecution witnesses (Eerber (Transcript p. 1409), Kroher (Exh. 230, p.100) and Kern (Exh. 232, p. 120) are contradicted by Oeschey's testimony in the stand who was able to reconstruct and explain the case logically from his memory, an explanation which is supported and propped by the decisions submitted by me (My Exhibit 70 and 107-110).
As far as there are documents about the individual cases, they were for the most part introduced by me in my Document Books, for a small part also by the Prosecution. These documents prove the correctness of the principles for his administration of justice set forth by Oeschey as a witness which I already dealt with in detail in the general statements of my final plea.
The documentary evidence speaks for itself. Therefore I should like to take up in this final plea some few cases only.
One of those cases is the Giani and Sala case in which two Frenchmen were sentenced to death because of black-out burglaries by virtue of a circumstantial evidence which was especially contested by the witness Gross (Exh. 229, p. 91 and records p. 2833). The personal impression made by this witness will still be present to the mind of the High Tribunal. The witness gave evidence with a special hostility to Oeschey which can no longer be explained by objective points of view, but is obviously due to the fact that he felt himself disregarded by Oeschey in his former activity with the Special Court. In the stand Oeschey (Tr. p. 8584 and following) described the witness Gross as a judge who was in particular lacking in practical experience of life and who showed himself highly reserved especially with regard to circumstantial evidence, whilst he thought that he could let himself guide rather more by a testimony It may be left undecided whether the conception of the witness Gross is correct or not, but there will be no doubt that the circumstantial evidence will and must be applied in every regular administration of penal law, as in many cases a conviction of a defendant pleading not guilty will not be possible at all by other means and as a coherent coherent chain of circumstantial evidence often constitutes a better proof than anything else. In this connection the statements of the Tribunal No. I in the medici trial concerning the circumstantial evidence (p. 205 of the verdict) are of interest, which, applied to the Giani and Sala case, in my opinion absolutely justify the conviction of the two defendants.
Because it was a conclusive circumstantial evidence which did not admit of any doubt in the guilt of the defendants. As soon, however, as the guilt of the two defendants was proved by circumstantial evidence, the Special Court was obliged to consider whether it was an extremely severe case or not, and if the actual facts of the case cogently proved an extremely severe case, to decide accordingly.
The opinion of the witness Gross that no death sentence ought to have been passed on account of a circumstantial evidence is illogical. Either the two defendants were quilty, then they had to be sentenced according to the law, or the circumstantial evidence was insufficient and in this case they had to be acquitted. Therefore the sentence absolutely corresponds to the law and is in accordance with the decisions of the Supreme Court.
As a second case in this connection I should like to quote the Kaminska-Wdown case, which was likewise mentioned by the witness Gross (Exh. 229, p. 89 and Tr. p. 2828) and by the witness Pfaff (Exh. 235 p. 94). This case is of particular legal interest, since in its course the Law concerning Poles and Jews was of a certain importance, although it was finally not applied in the verdict. It was, however, taken into consideration by the Prosecution for the motivation of tne indictment. Here the Prosecution made a characteristic difference. It only indicted the Kaminska woman according to the law concerning Poles and Jews, more precisely according to Paragraph I of this decree, because of an attack against a member of the German Armed Forces. Wdown, who was an Ukrainian, was only indicted because of complicity in the offense of the Kaminska woman. Wdowen, as an Ukrainian, although he was in possession of the Polish citicenship and had lived within the territory of the Polish State, did not come under the Law concerning Poles and Jews, and that for the following reason: According to the Law concerning Poles and Jews, Paragraph XV the perpetrator, had among other conditions, to be an ethnic Pole and this was not the case with Wdown as an Ukrainian. It is of interest to follow the records of the trial in the Kaminskar-Wdown case (exhibits of the Prosecution 201 and 201a). From these records, results that the court took in the course of the trial a recess for deliberation and finally dismissed the case against Wdown inasmuch as Wdown had been charged of complicity in an offense committed bv Kaminska according to the Law against Poles.
An explanation for this is given in the testimony of the witness Oeschey about this case, according to which doubts arose in the court during the trial whethef the offense of Kaminska could indeed be considered as a crime as defined in the Law against Poles. Thereby the court came to the decision not to apply the Decree concerning Poles, since Kaminska, when she hit the German soldier Wanner in her excitement, did not see in him a member of the German Armed Forces, but rather the opponent against her claim of money. Thus the court came to the wellfounded conclusion that the Kaminska woman, it is true, intended to attack Wanner and to injure him also bodily, but not in and because of his character of a member of the German Armed Forces. This resulted in the fact that the Law against Poles was not applied at all to Kaminska, but rather the decree against Violent Criminals which was applicable to any German defendant, and that Wdown was not found guilty of complicity in an offense punishable according to the Law against Poles, but of a crime as defined in the Law against Public Enemies which was likewise applicable to any German. I think to have made clear in my documents (Exh. 137-149) and during the examination of Oeschey (Tr. p. 8699 and following pages) and of the witness Markl (Tr. p. 8812) that the sentence was consistent with the German law and the decisions of the German Supreme Court.
And now I interpolate. The assertions which the Prosecution has repeated again and again that Kaminska had been sentenced under the Low against Poles are therefore incorrect. If the figures II, III, XIV of the Law against Poles appear in the verdict, that means merely that on the basis of those provisions, the General German Criminal Law was applied, and that the penalty was selected from it. The Prosecution tries to minimize that case so as to criticize the extent of the penalties, but I should like to refer you to the testimony by Wurm, my Exhibit 148, according to which this was the most serious violent crime in which Poles participated in the District of Uffenheim.
Kaminska, together with Wdown, to begin with committed an act of ciolence and blackmail and a breach of peace. At least twice she tried to injure him seriously with dangerous weapons, and possibly her intention went beyond that, and eventually she, together with Wdown, offered, resistance to the authority of the State. The passage in the verdict which the Prosecution has criticized. - a verdict by the way was not written by Oeschey but by his associate judge Pfaff - represents a further reason why the Law against Violent Criminals was applied, the purpose of which was the general protection of violent elements. This protection was particularly necessary during the war in the country because many men who in normal times had taken care of the maintenance of peace and order inside the Reich were no longer in a position to do so because they had been drafted for service with the armed forces. I merely want to say in connection with this case the Kaminska woman, according to her own testimony, had come to Germany voluntarily.
As the last of the cases of foreigners which had been brought forward by the Prosecution with special emphasis, I should like to dissucc the Jankovic case which is mentioned in the affidavit of Brem (Exh. 485, p. 123). All the witnesses (Brem, Oeschey, Markl) testified unanimously that a death sentence was unavoidable accordlng to the then customary administration of justice since the offense was equivalent to looting. It seems that the Prosecution brought this case forward for the only reason that Jankovic was sentenced without appointment of a defense counsel. Such an appointment of defense counsels was however no longer necessary at the time of the trial, i.c. at the beginning of 1945, by virtue of the 4th Simplification Decree issued at the end of 1944. Moreover, Kankovic, although he had expressly been asked, did not apply for the appointment of such a defense counsel, nor was the case legally or factually complicated.
He was given the opportunity to advance everything necessary for his defense. The death sentence passed on him was not executed as he succeeded in escaping from the prison during an air raid.
2. (Cases in which Germans were involved) The case of the German citizen Strobel was discussed before the High Tribunal, in every detail.
Strobel was sentenced to death because of a finally committed crime as defined in the Law against Public Enemies, after having been previously convicted 49 times because of the most different offenses. This punishment was not inflicted on him because he had committed a political offense, but because he was a habitual criminal. The same sentence would have been passed on him, if he had committed a fraud, a bunglary or a bodily injury. The Public Prosecutor had not indicted him as a dangerous habitual criminal and that may be the reason why the case was set forth by the Prosecution in such detail. Obviously the indictment is of much more importance in the Anglo-American procedure than in the German procedure as regards the limits and the legal evaluation of the facts which are to be submitted to the court. In this connection the verdict of the Military Tribunal I in the case of the defendant Rose is of interest who was not found guilty of one Count despite sufficient material being submitted by the Prosecution because the latter did not accuse him in the indictment of being responsible as regards this Count. In the German criminal procedure the indictment is not of such an importance. Article 155 of the Code of Criminal Procedure defines:
"(1) The investigation and decision only extends to the offense set forth in the indictment and to the persons charged by the indictment.
(2) Within these limits the Tribunals are entitled and obliged to an independent activity: especially, they are, in the application of Criminal Law, not bound by the motions proposed.
The Code of Criminal Procedure makes a distinction between a change of the legal point of view (Article 265 of the Code of Criminal Procedure), i.e. a judgment of the same facts in application of another criminal law than that mentioned in the indictment, and between an extension of the charges (Article 266 of the Code of Criminal Procedure), i.e. the conviction of the defendant for an offense other than that set forth in the indictment. A changed legal point of view can be taken by the court without the consent of the defendant. The court is solely obliged to call the defendant's attention to the change of the legal point of view. The conviction of a defendant for an offense other than that with which he was charged in the indictment can only take place with the defendant's consent and upon a motion of the Public Prosecution, and that only in the case of offenses of minor importance, so-called misdemeanors and contraventions. The documents introduced by me (Exh. 72, P. 93 at the bottom, Par. 71) unmistakably prove that a conviction of a defendant as a dangerous habitual criminal, even if he has not been indicted as such, solely requires the observation of the regulations concerning a change of the legal point of view. The wording of Article 265 II of the Code of Criminal Procedure as amendad on 24 February 1933 removes any doubt. It is said there:
"It is to be proceeded similarly if only in the course of the trial circumstances appear which are particularly provided for by the criminal law and which require a heavier punishment or justify the ordering of a security and reform measure."