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."
The first alternative refers to the increase of punishment against a dangerous habitual criminal, the second to the order of a measure of security and reformation against him.
In every trial, the criminal record of the defendant is discussed, that does not imply any extension of the facts. The prosecution, already in the investigations before trial, adduces an exceprt from the criminal record of the defendant. This applied also to the case of Strobel. In the indictment, the prosecutor had expressly mentioned that Strobel had been previously convicted. Therefore, in the first hearing, no new counts arose as to the issue outlined in the indictment and which was the subject of the case. Only the assessment of the facts from a legal point of view has become a new one, as the criminal record of Strobel which formed a subject of the penal investigation from the very beginning, made his offense appear as that of a dangerous habitual criminal.
In the discussions about this case, it was of a certain importance whether the attention of the defendant Strobel has been duly called to the change in the legal point of view, as prescribed by the German law (Article 265, Code of Criminal Procedure). The rulings offered by me (my exhibits No. 134/135) all of which have been enacted a long time before 1933 -- yes, even before the first World War -- deal with just the same facts as in the case of Strobel and affirm that the reference to the change of the legal point of view in a decision of adjournment (Aussetzungsbeschluss) at the end of the first hearing will do justice to the provisions of Article 265 of the Code of Criminal Procedure, even when, in a second hearing, the reference will not be expressly repeated. For the real motive of Article 265 CCP is to give the defendant the possibility for defense in view of the new legal conditions, and one can hardly imagine any better realization of this intention of the legislator than that the procedure - as in the case of Strobel - be suspended for four months with respective reference, and a defense counsel is assigned for the defendant on account of the changed legal situation.
A brief interpolation. In its final plea, the Prosecution mentioned the Zoellner case in which Oeschey is supposed to have applied the concept of the sound instincts of the people contrary to the wishes of the population of the place where Zoellner lived. The Prosecution is wrong here, and apparently Oeschey failed, on the witness stand, to clear up this mistake, for it was not as a public enemy but for a crime against the war economy order - and that under Article 1, Section 1 of that order, as is shown from Exhibit 581 that Zoellner was convicted. The legal factions of this paragraph 1 can be gathered from my Exhibit 47. The term "sound instincts of the people" is not mentioned in that Article 1. Zoellner, therefore, was not convicted by introducing the concept of the sound instinct of the people. That Oeschey's verdict did not find the approval of the local mayor, I do not think is of any importance in our proceedings here. In this connection, the Prosecution once again has mentioned the case of Sponsel end Barth from which the Prosecution believes it can conclude that Oeschey's way of handling cases was merely a farce. Oeschey has stated his views considering the peculiarities of the practice in cases of field post matters (Transcript pages 8648 and following). There is nothing I wish to add, and I would refer you to my Exhibits 103 to 105. On the other hand, whether the Barth case, where the main defendants were sentenced to heavy terms in a penitentiary and not to imprisonment terms as the Prosecution says, as to whether that offense would have been punished with equal severity in another country, that is a question which I should like to leave open, but I seriously doubt that offense would have been punished with greater severity.
In the cross-examination of the defendant Oeschey the Prosecution reproached him for the case of the Jew Schoenbaum, who was sentenced to two years imprisonment because of a malicious acts offense.
Obviously, the Prosecution wants to prove by this case that Oeschey took part in the persecution of man for reasons of racial discrimination, and in the extermination of Jews. Therein, the Prosecution referred to the rejection of the defense counsel employed by Schoenbaun, as well as to some remarks, partly contained in the minutes of the police interrogation, partly in the verdict, and to the fact that Schoenbaum, after he had served his time, was delivered to the Gestapo. To take first the rejection of the Jewish counsel whom Schoenbaum had chosen as his defense counsel, I need not go into the question of legality of the measure ordered, but may confine myself to the statement that Oeschey was not at all involved in this decision. And as to the verdict, passed under the presidency of Oeschey, it refutes expressly the supposition of the Prosecution, The offense of Schoenbaum consisted in remarks, injurious to the State, which he had made towards others, and which, according to their objective contents, could be considered as either undermining the defense spirit, or as spiteful and inciting expressions (Article 2 Malicious Acts: Law concerning insidious attacks against the State) or only as spreading of untrue facts regarding the military situation. (Article 1 Malicious Acts Law). Thus, it depended upon the sense in which Schoenbaum had meant his remarks. Just this case is one more proof for the objectivity and the open mindedness of Oeschey, in that he did not impute to Schoenbaum the intention of undermining the defense spirit, yes, not even spitefulness or inciting intentions, but imposed upon him the mildest sentence, applicable to the offense of circulating untrue allegations. As to the deliver of Schoenbaum to the Gestapo after serving his time, Oeschey had no influence whatsoever upon this, he did not even know about it; this measure has to be answered for exclusively by the authorities which were responsible for the penal execution and administration.
Therefore, this case does not incriminate but clears Oeschey.
Finally, I want to go into the cases Heubeck and Sauer for which the defendant Oeschey was reproached by the Prosecution in the crossexamination, and by which the Prosecution obviously tries to prove some sort of connection of Oeschey with the methods of the Gestapo and the concentration camps. Heubeck, as well as Sauer, was sentenced by the Special Court Nuernberg, under the presidency of Oeschey, on account of an offense according to Article 1 of the Malicious Acts Law concerning malicious attacks against the State, because they had made false allegations as to the conditions in certain concentration camps. However, the Special Court did not - as supposed by the Prosecution - adduce evidence for the untruth of these allegations from the statements of the respective concentration camp commanders which were in the records of the Court, but were not requested by it. This information, as Oeschey testified on the stand and as can be seen from the findings, were never part of the presentation of the evidence; the judicial conviction of the defendant's guilt, on the contrary was exclusively based upon the defendant's confessions in the trial. They, therefore, were only sentenced insofar as they themselves admitted that their allegations as to their experiences in the concentration camps were false or at least exaggerated or misrepresented; as far as they denied having made such allegations or claimed that their statements were true to the facts, the Court did not find them guilty.
Now, the Prosecution remonstrated with Oeschey that these confessions had no probative value, because the defendants Heubeck and Sauer had been in a position of constraint on account of their verbal promise, given when released from the concentration camps, not to tell anything about the conditions there. Today, we cannot state whether such a position of constraint really existed with these defendants. Neither does it matter very much. It might possibly be relevant whether the Court had to recognize such a position of constraint of the defendants , and that is not the case.
The defendants would have made their defense in another way, if really they would have been afraid of imminent disadvantages from the part of the Gestapo. They would have denied, and they would have denied everything, in order to avoid treatment by the Gestapo. Instead of this they only denied partly, and partly they confessed, which had to give the Court the impression of correctness and of a voluntary confession. No normal human being will accuse himself of punishable acts or of such which would involve police-measures, if he did not commit such acts, Neither could Oeschey and his assessors gather from the records anything to the contrary, in particular nothing about the fact that Heubeck and Sauer, after they had served their time, would be delivered to the Gestapo and taken to a concentration camp. Such a request for delivery was never made to the finding Court as this had nothing to do with the execution of the punishment. And the request of the Gestapo to the investigating judge - not the finding court! which was cited during the cross-examination of the defendant Oeschey by the Prosecution - had nothing in the least to do with it. It did not refer to measures after serving the time, but only to the case that the investigating judge, to whom the Gestapo had delivered the defendant, would not impose the judicial arrest pending trial. The Prosecution has also failed in the further attempts to prove that the defendant Oeschey should have been aware of the treatment of defendants who had made remarks about concentration camps, on account of the case Heubeck which had been judged before the case Sauer. It has been established unambiguously that the records of the case Heubeck were not produced in the trial of the case Sauer, but most important, that at the time of the trial against Sauer the defendant Heubeck who had been previously sentenced was still serving his time, that is, he had not yet been delivered to the Gestapo at all.
Thus, Oeschey had no knowledge of such measures, nor did he assist in this case nor in any other case in delivering to the Gestapo persons whom he had sentenced, in order to have then taken to a concentration camp.
VI.
Summary Court Oeschey was until shortly before the collapse president of a Civil Summary Court.
In the indictment, the Summary Courts are not mentioned. In Count 9 of the Indictment, extraordinary irregular courts are mentioned. Some lines below, in the sace count of the Indictment, mainly the People's Court and the Special Courts are designated as such extraordinary irregular courts, but not the Summary Courts. The same applies to the Count 21 of the Indictment, in which also a special responsibility is imposed on Oeschey.
That is probably no accidental or inadvertent incompleteness of the indictment; as the Prosecution argues tha.t the "extraordinary irregular courts" had illegally been forced upon the ordinary court system by the National Socialist regime, a point of view by the way has been rebutted unambiguously in this trial by the evidence offered. The argumentation of the Prosecution must, however, fail in any case, as far as the Civilian courts martial are concerned, as the establishment of civilian courts martial. (Standgerichte) as well as the establishment of Courts martial (Kriegsgerichte) has been declared admissible already in the Judicature Act of 27 January 1877 and in the Weimar Constitution of the Reich as well. Par. 16 of the Judicature Act corresponding literally to Article 105 of the Constitution of the Reich, runs as follows:
"Exceptional Courts are prohibited. Nobody shall be deprived of his legal judge. The legal provisions concerning Courts Martial and Summary Courts and civilian courts martial are not affected hereby."
This does not only mean that those provisions which existed already when this law was issued remain effective, but that also the competent legislative power is authorized to issue provisions concerning Summary Courts, as was done by the Law of 15 February 1945.
Insofar as civilian courts martial have been established and insofar as somebody is summoned before these Summary Courts, he is therefore not deprived of his legal judge. This is of importance for all Summary Courts cases, and in particular for the case of Count Montgelas.
Oeschey did not voluntarily apply for this office of judge at the civilian court martial but he was ordered to do so as a soldier. Thus, he had no possibility to refuse the office assigned to him, unless he disobeyed a military order and exposed himself to penal prosecution because of military disobedience of desertion.
Paragraph II of the civil courts martial code prescribes that as president of the Summary Court a criminal judge has to he appointed. This prescription was complied with by the appointment of Oeschey; for the prescription had only the purpose to guarantee that the presidency at a civil courts martial should be entrusted to a professional lawyer, qualified for the office of a judge, with special experiences in criminal judicature; but it did not require that the judge who was appointed president he practicing such an office at the moment of his appointment. From 1 January 1939 up to his being drafted for military service at the beginning of February 1945, Oeschey was employed continuously and exclusively as a professional judge in criminal judicature, and most of this time as president of a Special Court, thus, perhaps, he more than any other judge at the Nuernberg courts, was qualified, according to Paragraph II of the Summary Court Code. He had not lost this qualification because of his being drafted to military service only a few weeks earlier, as on the whole, his professional position and his position at the District Court at Nuernberg were not at all affected by this military service.
Oeschey's conduct as a judge of a civil courts martial in particular concerning the interpretation he gave the Summary Court Code (Paragraph IV), according to which the civil courts martial could only pronounce death sentences, acquit the defendant, or remove the case to the ordinary judicature, was humane and reasonable.
He considered this rule only as a directive for the procedure, but not as an aggravation of the substantive regulations of penal law, in such a manner that capital punishment should be imposed for each offense that had been ascertained, even if the substantive penal law did not provide for this typE of punishment. His absolutely credible and logical remarks on this point are affirmed by the procedure pursued by the civil court martial according to which three cases, that is a fourth of all cases tried, were transferred to the ordinary courts, because no offense punishable by death, according to the then valid substantive penal law, was involved. One of these cases which were removed to the ordinary courts, and which is known by its name, namely the case Zippelius, has also been confirmed by the witness Eichinger (Exh. 150 p. 82).
There are ho records available of any of the cases tried, by the civil court martial. Therefore it is extremely difficult, if not impossible, to establish merely from the witnesses depositions, whether the decisions passed were materially correct or not.
The defendant Oeschey explained in the witness box the principles of the practice and the conformity of the same with the real penal law which was valid at that time, and the prosecution has offered nothing that could shake this statement. Therefore, my following statements will only deal shortly with the substantive decision, and more fully with the formal procedure.
The only case that has been discussed more detailed before the Honorable Court, is the case of Count Montgelas. In this case, the witness, that is Oeschey as well as the Investigating Judge Eser who interrogated Montgelas, the State-Attorney Mueller who dealt with the case before the records were transferred to the Feople's Court; and finally the defende counsel Eichinger, attorney-at-law; deposed unaminously that it was a question of very serious remarks, which, if they did not constitute high treason, at least approached it closely, and would have unconditionally involved death penalty at the People's Court, according to the judicature as it was practised since the beginning of war.
Thus, this case is restricted in essential on some questions concerning the procedure. The witnesses of the prosecution discussed the question whether the Civil Court Martial was competent for the decision after the records had been transferred to the Oberreichsanwalt (Public Chief Prosecutor) at the People's Court; this question was of no importance for the Court itself. The transfer of the records may affect; at the most; the competency of the Public Prosecution. But as the records did not reach the Oberreichsanwalt; and thus he had not taken over the case, it remained in the competency of the transferring Public Prosecution at Nurnberg. The Court had only to examine the question whether the conditions of Article III of the Code of Civil Court Martial existed, and this examination could not turn out but positively. The Civil Court Martial could not evade trying and judging the case, after the charge had been brought before it, Oeschey did not exert any influence that the case came to trial as it never happened in all the other cases.
The fact mentioned by the witnesses of the Prosecution that the commission of the offence occurred some time in the past is likewise of no importance in regard to the competence of the Civil Court Martial; for the Summary Court decree does not contain a clue for the Prosecution that only those offences should be tried by tne Summary Court which have occurred after the Civil Court Martial decree was issued, or after the Civil Courts had been established. It was indeed the punpose of the Civil Court Martial to replace the regular jurisdiction which no longer functioned, and only the endangering of the German fighting power and the determination to fight constituted the jurisdiction of the Civil Court Martial. However, there is hardly any need of a detailed proof for the fact that the crime of seditious undermining of the fighting power endangers the German fighting power and the determination to fight.
The defense counsel for Count Montgelas did not appear at the trial, Out of this fact the Prosecution constructed a charge against Oeschey which, however, was not justified. Oeschey summoned the defense counsel as he has testified in a trustworthy manner. What sensible reason could there have been for him to refrain from summoning the defense counsel in this case? Since in other cases too, he permitted the defense counsels to exercise their functions, especially so in the case Zippelius with the same attorney Eichinger. Everyone who has witnessed the conditions at that time must have understanding for the fact that, as a result of the external circumstances, the summoning of the defense counsel could not be carried out, even though all concerned had the best intentions. It may indeed be possible that Attorney Eichinger had his emergency office in the Courthouse, neither will I dispute the fact that he had made arrangements for notifying the Court Authorities about the transfer of his office.