1, Doc. 4, I, p. 13 and " 63 Joel-Exh.
11, Doc. 8, I, p. 45 " Kettner, Joel-Exh.
12, Doc. 17, I, p. 86 a Interrogation of Altmeyer, Tr. p. 5302/5303 " 64 Affidavit von Haacke, Joel-Exh.
1, Doc. 4, I, p. 11 " 65 Joel-Exh.
90, Doc. 92, V. (Files of the public prosecutor in Stade) p. 67 Affidavit Piesker, Joel-Exh.
15, Doc. 19, I, p. 95 " Meyer, Joel-Exh.
13, Doc. 16, I, p. 84 " Grosser, Joel-Exh.
89, Doc. 91, V. p. 64 " von Haacke, Joel-Exh.
1, Doc. 4, I, p. 13 a/14 " Jaeckel, Joel-Exh.
5, Doc. 30, II, p. 35 under No. 4 Interrogation of Joel, Tr. p. 6510 " 66 Affidavit Marotzke, Joel-Exh.
19, Doc. 25, II, p. 14 " Jaeckel, Joel-Exh.
5, Doc. 30, II, p. 37 under No. 9 " 67 Joel-Exh.
20, Doc. 15, I, p. 70 (Excerpt from the Files in cases against von Steinmeister) " 68 Exh.
557, NG 1566 " 69 Interrogation of Joel, Tr. p. 6521 Affidavit Hoeller, Joel-Exh.
21, Doc. 74, V, p. 20 under No. 35 " von Haacke, Joel-Exh.
1, Doc. 4, I, 16 a " 79 Interrogation of the Witness Doebig, Tr. p. 1801 " 71 Exh.
639, NG 2533 " 72 Exh.
639, NG 2533 under No. 9 Joel-Exh.
23, Doc. 50, III, p. 15 " 73 Interrogation of the Witness Rottner, Tr. p. 9409 Exh.
370, NG 616 Affidavit Dr. Martin, Exh.
22, Doc, 48, III, p. 3 Joel-Exh.
23, Doc. 50, III, p. 13 - 19 Joel-Exh.
65, Doc. 49, III, Interrogation of Schlegelherger, Tr. p. 4522 " 75 Joel-Exh.
18. Doc. 3, I, p. 8 " 76 Affidavit Schnoering, Joel-Exh.
3, Doc. 6, I, p. 24 " Hasselberger, Joel-Exh.
56, Doc. 21, I, p. 97 " Hagemann, Joel-Exh.
57, Doc. 22, II, p. 6 " Wilms, Joel-Exh.
59, Doc. 24, II, p. 12 " 77 Affidavit Hattangen, Joel Exh.
74, Doc. 69, IV, p. 1 " 78 " Hoeller.
Joel-Exh, 21, Doc. 74, V, p. 4 under No. 6 " 79 Affidavit Kramberg, Joel-Exh.
32, Doc. 54, III. p. 31 " Riel I, Joel-Exh.
33, Doc. 34, II, p. 64 " Riel II, Joel-Exh.
87, Doc. 89, V, p. 54 Note 80 Affidavit Hoeller, Joel-Exh.
21, Doc. 74, V, p. 5 under No. 5 " Ried I, Joel-Exh.
33, Doc. 34, II, p. 63 " Ried II, Joel-Exh.
87, Doc. 89, V, p. 54 " 81 Exh.
534, NG 797 " 82 Interrogation of Suchomel, Tr. p. 7766 " 83 Exh.
444, NG 812, p. 3 under No. 6 d " 84 Interrogation of Joel, Tr. p. 6557 " 85 Affidavit Hoeller, Joel-Exh.
21, Doc. 74, V, p. 8 under No. 13 " 86 Interrogation of Suchomel, Tr. p. 7763 " 87 Interrogation of Wentzensen, Tr. p. 9138 " of Skok, Tr. p. 9181 " 88 Affidavit Jaeckel, Joel-Exh.
5, Doc. 30, II, p. 34 under No. 1 " 89 Affidavit von Haacke, Joel-Exh.
1, Doc. 4, I, p. 12 a " 90 Affidavit Schoering.
Joel-Exh. 3, Doc. 6, I, p. 27 " 91 Affidavit Meyer, Joel-Exh.
13, Doc. 16, I, p. 85, line 4 " 92 Affidavit Jaeckel, Exh.
5, Doc. 30, II, p. 35, under No. 2 " 93 Affidavit Hattingen, Joel-Exh.
74, Doc. 69, IV, p. 2 under No. 3 " 94 Affidavit Wilms, Joel-Exh, 59, Doc.
24, II, p. 12 " 95 Affidavit Wilms, Joel-Exh.
59, Doc. 24, II, p. 12 at the bottom " 96 Affidavit Hasselberger, Joel-Exh.
56, Doc. 20, I, p. 97 " Grosser, Joel-Exh.
89, Doc. 91, V, p. 65 " 97 Affidavit Hennecke, Joel-Exh.
58, Doc. 23, II, p. 10 " 98 Interrogation of Lenz, Tr. p. 6649 " 99 Affidavit von Haacke, Joel-Exh.
I, Doc, 4, I, p. 14/15 " 100 Joel-Exh.
18. Doc. 3, I, p. 8 (Decree concerning the Removal of the Central Public-Prosecuting Authorities) " 101 Joel-Exh.
54, Doc, 2, I, p. 4 (Par. 152 StPO) " 102 Exh.
410, NG 587, p. 6 " 103 Affidavit Best I, Joel-Exh 61, Doc.
33, II, p. 70 " 104 Affidavit von Haacke, Joel-Exh.
1, Doc. 4, I, p. 15, line 2 "105 Affidavit Grosser, Joel-Exh.
89, Doc. 91, V, p. 64 Note 106 Affidavit Jaeckel, Joel-Exh.
5, Doc. 30, II, p. 39 under No " 107 Exh.
466, NG 610, Affidavit von Haacke Joel-Exh. 1, Doc. 4, I, p. 9 " 108 Affidavit Tondock, Joel Exh.
81, Doc. 83, V, p. 40 " 109 Affidavit Hoeller, Joel-Exh.
21, Doc. 74, V.p. 20 under No.34 " 110 Affidavit Schellenberg, Joel-Exh.
26 Doc. 37, II, p. 69 " 111 Affidavit Hoeller, Joel-Exh.
21, Doc. 74, V, p.17 under No.28 " 112 Affidavit Ohlendorf I, Joel-Exh.
23, Doc. 35, II, p.66, under No. 3 " 113 Interrogation of Joel, Tr. p. 6564.
" 114 Interrogation of Rothenberger, Tr. p. 5483 " 113 Affidavit Best II, Joel Exh.
43, Doc. 62, III, p. 53 " 116 Affidavit Thissen, Joel Exh.
17, Doc, 27, II, p. 22 " 117 Affidavit Diels, Joel Exh.
4, Doc. 7, I, p. 41 " 118 Affidavit Gritzbach, Joel Exh.
44, Doc. 75, V, p. 25 " 119 Exh.
423, NG 747, p. 11 " 120 Interrogation of Joel, Tr. p. 6569 " 121 Exh.
541, NG 2122 " 122 Interrogation of Behl, Tr. p. 790 Joel-Exh, 91, Doc.
93, V, p. 73 (Par. 3 of the Reich Civil Service Law) " 123 Compair the prosecution documents contained in Vol.
VI " 124 Exh.
54, NG 605 " 123 Affidavit Kesselboehmer, Joel-Exh.
67, Doc. 57, III, p.40 " Kogel, Joel-Exh.
45, Doc. 51, III, p. 21 " 126 Exh.
504, NG 1046 " 127 Exh.
308, NG 232 " " 128 Affidavit Randenbergh,-Joel-Exh.
66, Doc. 56, III, p.38 " Engelmann, Joel-Exh.
46, Doc. 52, III, p.26 Interrogation of Joel, Tr. p. 6572 " 129 Exh.
638, NG 1018 " 130 Exh.
328, NG 205 " 131 Affidavit Albrecht, Joel-Exh.
78, Doc. 80, V, p.33 Note 132 Affidavit Albrecht, Joel-Exh.
78, Doc. 80, V, p.33 " 133 Exh.
330, NG 240 " 134 Point 14 and point 26 of the indictment " 135 Interrogation of Hecker, Tr. p. 4838 Exh.
510, NG 988 (organizational sceme of the ministry of justice " 136 Affidavit Moebuss; Joel-Exh.
51, Doc. 61, III; p.50 " 137 Affidavit Moebuss, Joel-Exh.
51, Doc 61, III; p. 50 " 138 Affidavit Faber I Joel-Exh.
51, Doc. 59, III, p.44 Affidavit Faber, II Joel-Exh.
79 Doc, 81, V, p. 35 " 139 Joel-Exh.
48, Doc. 71, IV; p. 16 ( Objections interposed by the district Leitung against excessive housing privileges provided for prison inmates) " 140 Exh.
171; NG 544 " 141 Joel-Exh.
83, Doc. 85, V, p. 44 " 142 Exh.
410, NG 587, p. 7 " 143 Joel-Exh.
85, Doc. 87, V, p. 50 " 144 Affidavit Ohlendorf II, Joel-Exh.
24, Doc. 36, II, p. 68 " 145 Affidavit Martin II, Joel-Exh.
82, Doc. 84 V, p. 42 " 146 Affidavit Joel, Exh.
56, NG 915, Interrogation of Joel, Tr.p.65 " 147 Interrogation of Joel, Tr. p. 6592 " 148 Exh.
630; NG 2123 Exh.
410, NG 587, p. 10 " 149 Exh.
410, NG 587, p. 10 " " 150 Exh.
410, NG 584, p. 8 and Exh.
423, NG 423, NG 747, p. 15/16 " 152 Affidavit Hattingen, Joel-Exh.
74, Doc. 69, IV, p. 14 and Interrogation of Joes, Tr.p. 6532 " 153 Interrogation of Joel, Tr. p. 6532 " 154 Affidavit Tondock, Joel-Exh.
81, Doc. 83, V, p. 41 " 155 JMT Transcript p. 1638 " 156 Exh.
423, NG 747, " 157 Altstoetter-Documents No. 55 and 56, Vol 2 " 158 Altstoetter-Document No. 52, Vol.
2 Note 158 a Exh.
264, PS 638 " 159 Interrogation of Joel, Tr. p. 6560 " 160 Interrogation of Becker, Tr. p. 4838 " 161 Affidavit Meindl, Joel-Exh.
76, Doc. 77, V, p. 27 " von Brauchitsch, Joel-Exh.
75, Doc. 78, V, p.29 " 162 Exh.
412, NO 2176 " 163 Exh.
413, 2309 PS " 164 Exh.
414, 2605 PS " 165 Affidavit von Haacke, Joel-Exh, 1, Doc.
4, I, p. 13 " 166 Exh.
600, NG 2411 " 167 Affidavit Hoeller.
Joel-Exh. 21, Doc. 74, V, p. 20, under No. 38 " 168 Affidavit Hoeller, Joel-Exh.
21, Doc. 74, V, p. 17, No. under 30 " 169 Affidavit Ohlendorf, Joel-Exh.
24, Doc. 35, II, p. 67, under No. 5, Affidavit Hoeller, Joel-Exh.
21, Doc. 74, V, p. 20 under No. 38 " 170 Schelgelberger-Document No. 92, Vol.
4, p. 70 - 75 " 171 Exh.
38 - NG 059, Exh. 39 - 654 PS " 172 Exh.
410, NO 587 " 173 Exh.
410, NG 587 " 174 Affidavit Faber, Joel-Exh.
79, Doc. 81, V, p. 39 " 175 Affidavit Hattingen, Joel-Exh.
74, Doc. 69, IV, p. 13, under No. 12/13 " 176 Affidavit Ohlendorf I, Joel-Exh.
25, Doc. 35, II, p. 66, under No. 2 " 177 Affidavit Hattingen, Joel-Exh, 74, Doc.
69, IV, p. 11 " 177a Affidavit Schoetensank, Joel-Exh.
35, Doc. 42, II, p. 75 " 178 Affidavit Roethe, Joel-Exh.
42, Doc. 64, III, p. 62 " 179 Affidavit Boesel, Joel-Exh.
94, Doc. 96, III, p. 66 " 180 Affidavit Kurowski-Schmitz, Joel-Exh.
36, Doc. 43, II, p.82 " 181 Affidavit Roth, Joel-Exh.
39, Doc. 46, II, p. 95 Affidavit Koeper, Joel-Exh.
38, Doc. 45, II, p. 92 Note 182 Affidavit These, Joel-Exh.
92, Doc. 94, V, p. 73 " 183 Affidavit Kolbe, Joel-Exh.
37, Doc. 44, II, p. 88 " 184 Affidavit Hoeller, Joel-Exh.
21, Doc. 74, V, p. 17/18 under No. 31/32 " 185 Affidavit Lange, Joel-Exh.
70, Doc. 65, III, p. 64 " Barchfeld, Joel-Exh.
72, Doc. 72, IV, p. 18 " Hafer, Joel-Exh.
94, Doc. 97, V, p. 65 " 186 Affidavit Hoeller, Joel-Exh.
21, Doc, 74, V, p. 21 under No. 40 " 187 Affidavit von Haacke, Joel-Exh.
1, Doc. 4, I, p. 17 " 188 Interrogation of Lenz, Tr. p. 6648 " 189 " of Lenz, Tr. p. 6649 " 190 Interrogation of Schulz, Tr. p. 9534 " 191 Affidavit Diels, Joel-Exh.
4, Doc. 7, I, p. 41 " 192 Affidavit Diels, Joel-Exh.
4, Doc. 7, 1.
" 193 Affidavit Gisevius not accepted " 194 Affidavit Straeter, Joel-Exh 88, Doc.
90, V.
Particularly the case of Skowron shows that participation and guilt of the participants was just a carefully investigated when foreigners were concerned as was the case with Germans and that the so-called laws referring to Polish nationals were only of minor importance. If the sentence would still be available it would show the missing evidence without difficulties.
I believe it is sufficient to confront the Skowron indictment with the Dobosz indictment Exh. C 8, Doc. No. 2; the latter indictment was based by the witness Rimelin in its entirety upon the law against Polish nationals. The result was that both defendants were acquitted and immediately released from custody, because neither the actual facts could be proven nor did the remainder suffice to violate the law.
The affidavits of the mechanic Schultes Exh. C No. 9, Doc. No. 60 show how unjustified my client considered the detention pending the trial of the two Polish defendants. To confront those two cases says more than long theoretical elaborations. In addition, both cases show in detail that my client was far away from applying different legal principles or disadvantageous treatment to foreigners.
I now come to that point where the Public Prosecutor in his final plea makes reproaches on account of a death sentence against a man who had stolen bicycles. A special kind of sympathy has developed here for this man, which should make one inclined to assume that he is actually quite a good fellow, who merely had a weakness for taking a ride through the country on other people's bicycles when he felt like it from time to time. But the facts of this case are different.
I compare the above, somewhat timid statements of the Prosecution re this case Winter Eckstein (Cuhorst case 28) with the exact statements which I take from the indictment No. NG-709 Exh -- I shall give the exhibit number later -- In this case it is undisputedly not a case of foreigners. Besides Eckstein who is not a gipsy, three gipsies were being accused, Robert Winter, Zacharias Winter and Josef Koehler.
According to the Prosecution's own statements, it was undisputed that besides the non-gipsy Eckstein, only Robert Winter was sentenced to death. Two gipsies, namely Zacharias Winter and Josef Koehler remained alive.
This in itself refutes the alleged extermination tendency. I shall refer to this again with a few words later.
I could really already conclude my statement regarding this case here, if it was for me not a question of showing here that the view taken of the matter by the Prosecution is solely based on sympathy and feeling, but not on an evaluation of the facts, The persons in question were not being prosecuted because they wanted to have some fun with other people's bicycles, but because, according to page 12 of that indictment, they lived as members of a gang mainly on the proceeds from burglaries, and this constituted in time of war a threat to the security of the homeland. They stole practically everything that came to hand by burgling premises and at times by making use of the back-out; bicycles, chickens, eggs 100 at a time, gold items, etc. As the places where the deeds were committed have been mentioned in each case, it can easily be ascertained by means of a map that they were for a time making an entire region unsafe.
Regarding Robert Winter - who was the only gipsy over sentenced to death by the Special Court Stuttgard under Cuhorst - (Tr. page 8371) and who should be the sole and solitary support of an entire extermination tendency, the following may be said.
According to NG Exh. 456 he had been sentenced to death by reason of his own confession. His inclination to crimes of violence arose from the fact that he had taken part in an attack on a prison official, and then escaped from the prison. Later on he escaped again and he had intended to make a violent assault during the sitting of the Special Court in the Court Room. If he had not been sentenced to death in Stuttgart he would have been sentenced to death in Saarbrucken. All this is shown in the Affi davit Hartter, Exh, 54, Doc.
No. 46, Doc. Book II. Hartter was the Public Prosecutor in the Main Trial. He has also stated that the death sentences had been demanded against all three gipsies. Cuhorst was extremely sorry for the very young one of the gipsies, and he therefore showed special lenience towards him. Regarding the course of the proceedings on the re-opening of the case my client has already made a statement on page 80, 60, 61 and the witness on page 84, 66, 79, 92.
Among gipsies there may be quite harmless and pleasant people among those who earn a great deal in smart restaurants as musicians and thus amply provide for themselves. Other become easily robbers when they wander about the country as nomads, others became easily robbers when they wander about the country as nomads with dishonest intentions, without any inclination to work, but with a special preference for cattle and bicycles.
This manner of approach has nothing to do with race and is certainly not restricted to Germans either, but is simply a matter of either decent or criminal behavior.
A prosecutor appointed in Texas for the purpose of protecting an industrious farmer from a gang of robbers by means of criminal proceedings would essentially judge the case differently than at present, and as a case not unlike the one that was rightly qualified by the German Prosecutor at the time. Regarding conspiracy, I mean as applied to gypsies, there would be quite a margin for this here.
If it had been a question of extermination tendencies, they would have been carried out in all secrecy, and there would not have been any need for elaborate court proceedings carried out in full publicity. Dr. Kuestner, who, in his capacity as Chief President of his Land Kuerttemberg ought to have known this, if at all a judge of his district, has stated an oath to Protocol, page number to be given later, that he had no knowledge of such tendencies. Besides, I refer in this case to the statements of my client on a page number to be given later.
In the Case Woziniak, the opinion of the Prosecution must be contested that the inflicting of a prison sentence does involve a crime against humanity. There can be no question of this. In the case of Woziniak the death sentence was demanded, and was not pronounced despite a nullity plea. See statements of Berthold, Schwarz, page number to be given later. If one wanted to dispense here with long sentences of imprisonment one would reach the intolerable conclusion that sexual offenses by foreigners against children were permitted.
The same is true in the Moroviec case in which, according to Article I, Paragraph 175a, Section 3 of the Penal Code, a grown-upman inducing minors to unlawful sexual intercourse or using them for such acts is to be sentenced to the penitentiary.
The Defendant Koudelka has, as against the Prosecution statement in the Final Plea, stolen no one trunk but one hundred trunks, for sure. The case has been dealt with by my client as Cuhorst Case 2, page 8008. He had been appointed to the baggage department of the railway station at Ulm. His thefts, which constituted a serious breach of confidence, extended over three months and caused damage amounting to 30,000 Reichmarks. Nor did he hesitate to steal Red Cross luggage of soldiers killed in action, and the luggage of Dutch officers who were prisoners of war in Germany. That is the character of the man whom the Prosecution he says was sentenced to death for stealing one trunk.
Besides, the case has been taken up in one of the affidavits of the Defense.
The following page I want to be made part of the Transcript. I am talking of the passage dealing with the Togni case, pages 21, 22, and 23, but I should like to add here something as a source.
From the Prosecution's plea in the case of Louisa Toghi, Cuhorst case 43, by him dealt with in the Transcript, page and of the witness Stuber, Transcript, page 8413, it is of interest to establish that the Prosecution accepts the statement of the witness Dr. Schoeck that upon the intervention of the Italian Embassy she was pardoned to 8 years imprisonment. The statement of the witness Rimelin is thereby refuted. He himself as Public Prosecutor had applied for the death penalty but not because of his difficulties in denazification, page 2059, tries to take the credit for her pardon mainly for himself. In his statement that she had lived in Germany only a short time - the Prosecution in tactical consideration says later that she had lived in Germany a long time -the essential thing has not been mentioned. At that time in Germany warnings against pillage in case of airraids were posted on many public buildings in all communities not only in the German language but in view of the many foreign workers, also regularly in Italian, Polish and. French with special emphasis upon the fact that pillage would be punished with the death penalty.
Hence it makes absolutely no difference whether Toghi understood German or not.
With regard to the legal consideration given by Dr. Schoeck, we refer to the following. The attorneys' knowledge of the decisions of the higher judges in consideration of the facts of the individual penal cases is very limited, as every experienced criminal judge in Germany knows. Especially the legal interests of very busy lawers, having to deal with cases ranging from divorces, claims for maintenance, tax laws, industrial laws up to criminal law, are too scattered, to enable them to give a somewhat clear prognosis of the outcome of the case before the start of the main trial. Hence there is a great tendency to held tenaciously to one certain decision of the Supreme Court regardless of whether another decision of the Supreme Court more applicable to the individual case has been passed since. Without hurting the feelings of our colleague Dr. Schoeck, nevertheless the arguments of Dr. Stuber who stated that he has been Criminal Judge for years and therefore may be regarded as specialist, should on this point be far more convincing to the High Court. He stated that the acting court with Cuhorst presiding weighed every possibility to save Toghi from the death sentence.
He further testified that the court immediately took into consideration to recommend Toghi for pardon. Not to pronounce the death sentence would, however, have been against the prevalent teaching and jurisdiction. Regarding this I refer to Doc. Book II, Oeschey, and there to: Doc. No. 189, p. 65, Doc. No. 90, p. 70, Doc. No. 113, p. 72, Doc. no. 145, p. 75.
The three authors quoted here besides the Supreme Court, namely Dr. Kleen, then president of the 1st Criminal Senate of the Supreme Court (Kammergericht), Professor Dr. Schoenke, Reichsgerichtsrat Dr. Schwartz, have for years been recognized as leading authorities on the criminal code, -- as every German lawyer can confirm. Dr. Schwarz points out that the tenet that in order to punish a war criminal, besides having established the legal facts of the case it is necessary that he also be the type of the perpetrator in question, - is to be very definitely rejected.
It cannot be the case that if there is no such criminal type indicated, the criminal, in spite of the presentation of the legal facts of the case, would have to be acquitted. The adherents of the criminal type admit that the gravity of even a single act of an otherwise righteous perpetrator may let him appear as a criminal type in the meaning of the law. This obtains particularly in a Reich Supreme Court decision in criminal matters, volume 74, page 240, which takes the viewpoint that the criminal type is supplanted by the crime type. If the crime appeared to be injurious to the people, the sentencing will take place without much ado according to the decree against people's parasites. Professor Dr. Schoehke states that, as a whole, the jurisprudence has shown still before the end of the war a change from the criminal type to the type of crime. But these statements are of no decisive importance. As testified to be my client on the witness stand, transcript page 8085, looting is a crime absolutely punishable by death, and moreover, the commission of looting by a Frenchman in the Stuttgart main railway station, as stated by him at some other occasion, proves, that only the finding of some special judicial facts during the investigation exclude the necessity of pronouncing a death sentence.
Since the case Togni concerned the citizen of allied Italy, on whose behalf the embassy interceded by the way, it becomes evident that the court could not act differently. Concerning cases of looting, not any more than in others, no difference could be made when judging the crimes of Germans, Frenchmen, Poles or Italians.
Summarizing, I want to emphasize once more that Louisa Togni uncontestably was not executed. Page 23, line 15 from the top in the German, transcript page 80-85, would you here please add the loose pages which I have handed in with the heading "Michael Schmitt"?
THE PRESIDENT: The same rule will apply as to your written argument as has been applied in the other cases. The entire written argument will be incorporated in the record whether you read it or not.
DR. BRIEGER: Well, Your Honors, in that case I shall leave out quite a bit more. I am reducing my original plea to about half. May I know whether you have the Michael Schmitt pages?
INTERPRETER: Yes? we have them.
DR. BRIEGER: In the case of SCHMITT Michael, case 23rd testimony of my client? record page 8052/52, the prosecution again overlooks that this concerns not merely the theft of cigarets by continuous pilferage of service-parcels mail but that the above simultaneously and continuously stole the letters of the families sent to their relatives in the front line. Every German soldier stationed in the front line can testify to the extent to which the morale of fighting troops will suffer and how the worries grew, when there was no news from Home. In the case of SCHMITT such mail originated in Stuttgart which was subjected to continuous air-raid attacks, thereby increasing the worries in this particular instance. The stress laid by the witness DIESEM on the little value of the cigarets, does not materially affect the case. For it must be remembered that it concerned goods in short supply which were rationed on cards in such small quantities that the stolen quantity represented the ration of a woman for several months and could be obtained in minute quantities often after many hours of lining up outside the tobacconists. As, already in normal times, the theft of foods (Mundraub) by pilferage from postal packets is considered more seriously than ordinary food theft, how much more does this apply in times of war. German High Court Judgement and Science always agreed on this point. Therefore, the incorrect views of DIESEM's defense counsel must es½ecoa;;u jave ½rpvpled CUHORST. Finally, the statements of Dr. KUESTNER, record page 8203 and Dr. SCHOEGK, record Page 8245 show that DIESEM's statement that he had been excluded for a considerable time from appearance at the Special Court on CUHORST's instructions, wore untrue.
Furthermore I should like to point out, as a precautionary measure, that when cases of parcel robbery from Armed Forces' mail were punished by the death sentence in accordance with the Decree against Public Enemies, this was not a practice which CUHORST had introduced; but similar offenses were punished in exactly the same way by other courts in Germany.
These verdicts were posted up continually by the postal and railway authorities in the rooms used by their employees, on large notices visible from a long way off, so that everyone who nevertheless stole a parcel from Armed Forces' mail knew beforehand exactly what punishment he could expect.
Although the indictment does not specifically chargemy client with persecutions for religious reasons, various evidentiary documents of the prosecution clearly aim in this direction.
As a judge, my client's duty wasonly the pronouncing of sentences. Just like any other judge he could not avoid doing it, after the prosecuting authority submitted the facts of the case for sentencing. He had nothing to do with the instituting of criminal prosecution or with the execution of sentence, a fact which must be reemphasized and which by now must be assumed as being recognized by the Tribunal as applying to all the defendents. Sentences were passed by applying the laws, that is to say, in the individual cases to be discussed here, of laws which were not enacted for reasons of religious persecution. For this reason alone, these sentences cannot be charged as crimes. Least of all is it asserted that the accompanying circumstances were by any chance criminal. The defendants were not mistreated, they were not handed over to the Gestapo, nor was it intended to persecute any religious community.
To begin with, from the cases to be discussed those may be eliminated where the religious membership of the person concerned was accidental, and hardly of any interest to either the prosecution or the court.
Included are:
1. The case Untermarchtal, case 12, in regard to which my client has made a statement on page 8028 of the transcript, as well as the witness Azesdorfer who made a far more detailed statement on page 8449 and following.
Untermarchtal is an economic enterprise of unusual size, owned by an organization of pious sisters who, as a temporal society are estimated to be worth about 10 million RM (pre-war value).
If in spite of the unequivocal result of the second part of the evidence taken the Prosecution nevertheless states on page 170 of its plea: "included with the files are also files of the trial against the correct Untermarchtal. "lien evaluating all evidential material this constitutes above all well founded doubt a persecution for religious reasons." The foregoing compels me to quote myself from some of the find ings of the verdict. In violation of many different war economy laws, the following articles were illegally marketed or consumed, according to page 22 of this sentence: 90,000 eggs;page 24: 3 to 600 kilograms of meat; page 25: 140,000 litres of milk, 7,100 kilograms of flour; page 30: additional 8,300 kilograms of flour; page 31: 3,300 kilograms of sugar. I restricted myself to quote only a few figures without making any claim to completeness. They speak an eloquent language, if I were to add that almost all Germans received during the war no milk at all, and only occasionally every, few months perhaps, a few eggs, and that the meat, flour and sugar rations were always so small that nobody could eat his fill of them.
In rebuttal of the Prosecution's assertion in the same place that the mayor Untermarchtal was not a Party member, I now quote from the indictment, page 20, that this mayor, named Spitzelberger, was a member of the NSDAP since 1931, with the Party membership number 716977! He was sentenced by the Special Court, with Cuhorst as Presiding Judge, to serve three years in the penitentiary, while the maximum penalty passed on a pious sister, the mother superior, was two years in prison, -- and not penitentiary, as should be well understood. Other sisters received smaller prison terms or even fines, and four sisters were even acquitted.
That is how the religious persecution of which Prosecution speaks, looked.
And now I interpolate. The witness Dr. Atzesdorfer, on page 8453, expressly testified that this was not a care of religious persecutors.
In view of the fact that I had been forced to correct the statements of the prosecution to such an extent it seems to me to be a matter of courtesy to assist them in their reply by offering them herewith my original documents of the indictment and the verdict "Untermarchtal".
The testimony of the witness Klett that on orders of Cuhorst the trial had taken place in the room for religious exercises is refuted by the affidavit of the sister superior, Burger, Volume III, Document 98, Exh. No. 98.
The witness Azesdorfer testified that my client had nothing to do with instituting the criminal proceedings, that he had been informed of the indictment only shortly before it had been filed with the court. He and his assistant judges labored for 10 days in the trial to examine the individual offenses against the war economy decrees, Consequently, the verdict was just as well founded in its argument as the indictment, which contained 142 pages.
The same witness has also testified, Page 8450 of the Transcript, that the Court presided over by Cuhorst declined to accede to the request to seize the property of the institution because the Court did not see a legal basis for it. The judges, consequently, were surprised by the subsequent seizure. However, it was never carried out but a trustee was appointed to administer the property during the remainder of the war, as may be seen from the affidavit exhibit number to be furnished later.
.............Doc. Volume......... .Exh. No............Doc. No.
Interpolation, see attached sheet.
I want to interpolate here.
Concerning the Untermarchtal Case, the Witness Otto Maier, Document Volume II, page 3 of Document 51, Exhibit 38, gave valuable testimony. He said that Cuhorst had not acceded to the wishes expressed by Berlin for severe penalties.
He had not acceeded either to the wish of the Party that a fraud process should be staged.......
The next few pages I want to incorporate into the record, my statements on the Herzer case and the case of Waldemar Schiff and Backbler.
THE PRESIDENT: Your need not designate what you wish incorporated in the record. You need not state it because it will all be incorporated in the record, whether you read it or not. Just read what you feel necessary to read.
DR. BRIEGER: Very well, Your Honor. The Bieger case that should come at page 29-A needs interpolating there; but I don't intend reading it now, it will be page 29b. That deals with work in the Ukraine. (follow pages not read by counsel) The extraordinary seriousness of the many sexual crimes.
In my opinion it is characteristic for the objectivity of the court that the verdict states that the acts of the priests had been condemned by the Church. If it had been intention to discredit the Church this passage certainly never would have been inserted in the verdict. It is no coincidence that the Reich Supreme Court suspended the verdict for being too mild and that another Special Court subsequently pass a more severe sentence.
The case Fussen, described in the testimony of the witness Berthold Schwarz; Exh. 242, concerned very serious cases of procuring - similar to the case of Herzer. The Reich Supreme Court also suspended this verdict of the Special Court Stuttgart for being too mild, The case was transferred to another Special Court and a much more severe sentence was pronounced. If it had been the intention of my client to persecute priests on religious grounds the verdicts would reveal such a tendency.
There are only three verdicts against priests left where political acts had to be subjected to a judicial investigation.
In the case of the verdict against Julius von Jan which the Prosecution submitted to my client during his cross-examination; the prose cution did not mention that Jan had been sentenced to only one year and four months in jail.
The person involved in these cases violently criticized from the pulpit political measures of the state during the war. The provisions of the so-called "Kanzelparagraph" (pulpit paragraph) 130a of the German penal code dating from Bismarck's time were explicitly quoted in the verdict and the malicious attacks law only incidentally.
The court had no possible chance to evade the issue, the less so as the person involved emphasized before the court that he was only responsible to God. Any extenuating circumstances applicable to the case had been taken into consideration, for instance that the defendant had been a soldier, and four months of protective custody were deducted from the sentence, although there was no legal obligation to do so.
In this case it is not that a priest had been convicted on account of his religious conviction, but for attacking the then accepted reason of state from the pulpit, It need not be said in this connection that the court did neither torture nor manhandle him as could have been expected from the charge. If he had been acquitted, it would have been a perversion of justice on the part of the judges and - the Special Court always had to consider this possibility - the Gestapo or the Security Police would have seized him and most likely sent him to a concentration camp like many other priests, had not the Court served him from this by its verdict which followed a middle course.
In the case of the two verdicts 1) Wassmer and Schack Exh. No....... and 2) Blattman et al, where the facts on Yfhich both verdicts had been based closely resemble each other the accusation that this constituted religions persecution would perhaps be legally justified if the persons involved had limited themselves to spreading the Goespel and if Cuhorst had prevented them to do so by a heavy sentence. Instead of doing so they propagated quotations of saints long since recognized as unholy. They indeed acted from political motives by resurrecting views of Wilhelm II and by playing off Hitler of 1920 against Hitler of 1940.
They used a mimeograph machine and proceeded to distribute on a vast scale quotations from Hitler's boring book.
Their criticism of Hitler lacks all interest to-day, because it is confined to narrow limits though I am aware of the fact that, even this, was dangerous at that time. It cannot be of any interest to-day to protect people who considered Hitler, the practical politician of 1940, degenerated as compared with the Hitler of 1923, the author of "Mein Kampf." While few Germans knew at that time that Hitler was always the same, all Germans know to-day, what kind of man he was and that there was no hope that religion during his dictatorship would ever be sincerely advanced, whatever his policy was.
Thus the case, being out of date, can be eliminated from any discussion particularly, since malicious attacks and violations of radio regulations doubtlessly had been committed according to the views, prevailing at that time.