The wife of farmer Schwenzl slapped him after that. In spite of this, the accused continued with his impertinent behavior; for a third time he touched the genitals of the farmer's wife above the skirt.
* * * * * * * * * * * "The accused did not make a complete confession.
He states that he only once, for fun, touched the farmer's wife's genitals above the skirt.
"The court in convinced , on account of the testimony given by the witness Therese Schwenzel, who makes a trustworthy impression, that the affair occured exactly as described by the witness. Therefore, its findings were arrived at according to the testimony given by her."
The Polish woman who was present at the time of this alleged assault is not listed as a witness. Rothaug has stated in his testimony before this court that he never had a Polish witness.
As for the reason for bringing the defendant under the Public Enemy Ordinance, the following facts are stated in the reasons for the verdict: Lopata, having had some minor difficulties with the farmer Schwenzl, refused to eat his noon meal and induced the Polish servant maid to do likewise. Thereupon farmer Schwenzl, his employer, called him to account in the stable. The defendant put up resistance to the farmer's "admonitions" by arming himself with a dung fork. It is further stated that the Pole, at the threshold of the farm hallway, again turned against his employer and let him go only when attacked by the sheep dog which the farmer kept.
As to the actual reasons for the sentence of this Polish farmhand to death, the following paragraphs are more significant:
"Thus the defendant gives the impression of a thoroughly degenerate personality, which is marked by excitability and a definite trend to mendacity, or to lying.
The whole inferiority of the defendant, I would say, lies in the sphere of character and is obviously based on his being a part of Polish subhumanity, or in his belonging to Polish subhumanity."
"The drafting of men into the armed forces effected a heavy labor shortage in all spheres of life at home, last but not least in agriculture. To compensate this, Polish laborers, among others, had to be used to a large extent, mainly as farmhands. "These men cannot be supervised by the authorities to such an extent as would be necessary due to their insubordinate and criminal disposition.
* * * * * * * * "The action of the defendant means a Considerable violation of the peace to the persons immediately concerned by his mean actions The rural population has the right to expect that the strongest measures will be taken against such terrorization by foreign elements.
But beyond disregarding the feminine honor of the wife of farmer Schwenzl the attack of the defendant is directed the purity of the German blood. Looking at it from this point of view, the defendant showed such a great deal of disobedience in the German living space that his action has to be considered as especially significant.
"Accordingly, as outlined in Article III, paragraph 2, second sentence of the Poles and Jews Ordinance, the crime of the defendant, which compared with his other behavior shows a climax of unheard-of impudence, has to be considered as especially serious so that the death sentence had to be passed as the only just expiation, which is also necessary in the interest of the Reich security to deter Poles of similar mentality."
The defendant was sentenced under the Ordinance Against Poles and Jews in the Incorporated Eastern Territories. The verdict was signed by the defendant Rothaug, and an application for clemency was disapproved by him.
When on the witness stand , the defendant Rothaug was asked the following question by the court:
"* * * if Lopata had been a racial German, all other facts being the same as they were in the Lopata case, is it your judgment that the nullity plea would have been invoked and that the Supreme Court would have ordered the case sent back to you for another trial? I should like your opinion on that."
Rothaug replied as follows to this question:
"Mr. President, this question is very interesting, but I cannot even imagine that possibility even theoretically, because the very elements which are of the greatest importance could not be applied to a German."
Lopata was sentenced to death and subsequently executed.
The third case to be considered is that of Leo Katzenberger. The record in this case shows that Lehmann Israel Katzenberger, commonly called Leo Katzenberger, was a merchant and head of the Jewish community in Nuernberg; that he was "sentenced to death for an offense under paragraph two legally identical with an offense under paragraph four of the Decree Against Public Enemies in connection with the offense of racial pollution". The trial was held in the public session on 13 March 1942. Katzenberger's age at that time was over 68 years.
The offense of racial pollution with which he was charged comes under Article 2 of the Law for the Protection -
DR. THIELE-FREDERSDORF (Counsel for the defendant Joel): Your Honor, I have just been informed that the defendant Joel is suffering very severe pains in the stomach, and at the moment is unable to attend the session any further. I would ask you, therefore, to excuse him from attendance for a few moments and to allow him to leave the courtroom for a short time.
THE PRESIDENT: The defendant Joel will be excused until he is required in the courtroom at a later time in the afternoon.
JUDGEHARDING: (Continuing reading). The offense of racial pollution with which he was charged comes under Article 2 of the Law for the Protection of German Blood and Honor. This section reads as follows:
"Sexual intercourse (except in marraige) between Jews and German nationals of German or German-related blood is forbidden."
The applicable sections of the Decree Against Public Enemies reads as follows:
"Section 2 "Crimes During Air Raids "Whoever commits a crime or offense against the body, life, or property, taking advantage of air raid protection measures, is punishable by hard labor of up to fifteen (15) years or for life, and in particularly severe cases, punishable by death.
* * * * * * * * * * * * "Section 4 "Exploitation of the State of War a Reason for More Severe Punishment "Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to fifteen (15) years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable."
The evidence in this case, aside from the record, is based primarily upon the testimony of Hans Groben, the investigating judge who first investigated the case; Hermann Markl, the official, who prosecuted the case; Karl Ferber, who was one of the associate judges in the trial; Heinz Hoffmann, who was the other associate judge in the trial; Armin Bauer, who was medical expert in the trial; Georg Engert, who dealt with clemency proceedings; and Otto Ankenbrand, another investi gating judge.
The salient facts established in connection with this case are in substance as follows: Some time in the first half of the year 1941 the witness Groben issued a warrant of arrest against Katzenberger, who was accused of having had intimate relations with the woman photographer Seiler. According to the results of the police inquiry, actual intercourse had not been proved, and Katzenberger denied the charge. Upon Groben's advice, Katzenberger agreed that he would not move against the warrant of arrest at that time but would wait the results of further investigation. These further investigations were very lengthy, although Groben pressed the public prosecutor for speed. The police, in spite of their efforts, were unable to get further material evidence, and it became apparent that the way to clarify the situation was to take the sworn statement of Seiler, and this was done.
In her sworn statement she said that Katzenberger had known both her and her family for many years before she had come to Nuernberg and that his relationship to her was a friendly and fatherly one and denied the charge of sexual intercourse. The evidence also showed that Katzenberger had given Seiler financial assistance on various occasions and that he was administrator of the property where Seiler lived, which was owned by a firm of which he was a partner. Upon Seiler's statement, Groben informed Dr. Herz, counsel for Katzenberger, of the result and suggested that it was the right time to move against the warrant of arrest.
When this was done, Rothaug learned, of it and ordered that the Katzenberger case be transferred from the Criminal Divisional Court to the Special Court. The first indictment was withdrawn, and another indictment was prepared for the Special Court.
The witness Markl states that Rothaug dominated the prosecution, especially through his close friendship with the Senior Public Prosecutor, Dr. Schroeder, who was the superior of Markl.
The indictment before the Special Court was prepared according to the orders of Rothaug, and Katzenberger was not charged only with race defilement in this new indictment, but there was also an additional charge under the Decree Against Public Enemies, which made the death sentence permissible. The new indictment also joined the Seiler woman on a charge of perjury. The effect of joining Seiler in the charge against Katzenberger was to preclude her from being a witness for the defendant, and such a combination was contrary to established practice. Rothaug at this time told Markl that there was sufficient proof of sexual intercourse between Seiler and Katzenberger to convince him, and that he was prepared to condemn Katzenberger to death. Markl informed the Ministry of Justice of Rothaug's intended procedure against Katzenberger and was told that if Rothaug so desired it, the procedure would be approved.
Prior to the trial, the defendant Rothaug called on Dr. Armin Baur, medical Counsellor for the Nuernberger Court, as the medical expert for the Katzenberger case. He stated to Bauer that he wanted to pronounce a death sentence and that it was therefore, necessary for the defendant to be examined. This examination , Rothaug stated, was a mere formality since Katzenberger "would be beheaded anyhow". To the doctor's reproach that Katzenberger was old and it seemed questionable whether he could be charged with race defilement, Rothaug stated:
"It is sufficient for me that the swine said that a German Girl had sat upon his lap."
The trial itself, as testified to by many witnesses, was in the nature of a political demonstration. High Party officials attended, including Reich Inspector Oexle. Part of the group of Party Officials appeared in uniform.
During the proceedings, Rothaug tried with all his power to encourage the witnesses to make incriminating statements against the defendants. Both defendants were hardly heard by the court. Their statements were passed over or disregarded.
During the course of the trial, Rothaug took the opportunity to give the audience a National Socialist lecture on the subject of the Jewish question. The witnesses found great difficulty in giving testimony because of the way in which the trial w as conducted, since Rothaug constantly anticipated the evaluation of the facts and gave expression to his own opinions.
Because of the way the trial was conducted, it wad apparent that the sentence which would be imposed was the death sentence.
After the introduction of evidence was concluded, a recess was taken, during which time the prosecutor Markl appeared in the consultation room and Rothaug made it clear to him that he expected the prosecution to ask for a death sentence against Katzenberger and a term in the penitentiary for Seiler. Rothaug at this time also gave him suggestions as to what he should include in his arguments.
The reasons for the verdict were drawn up by Ferber. They were based upon the notes of Rothaug as to what should be included. Considerable space is given to Katzenberger's ancestry and the fact that he was of the Mosaic faith, although that fact was admitted by Katzenberger. Much space is also given to the relationship between Kalzenberger and Seiler. That there was no proof of actual sexual intercourse is clear from the opinion. The proof seems to have gone little farther than the fact that the defendant Seiler had at times sat upon Katzenberger's lap and that he had kissed her, which facts were also admitted. Many assumptions were made in the reasons stated which obviously arc not borne out by the evidence, The court even goes back to the time prior to the passage of the Law for the Protection of German Blood and Honor, during which Katzenberger had known Seiler. It draws the conclusion apparently without evidence, that their relationship for a period of approximately ten years, had always been of a sexual nature. The opinion undertakes to bring the case under the decision of the Reich Supreme Court that actual sexual intercourse need not be proved, provided the acts are sexual in nature.
Having wandered far afield from the proof to arrive at this conclusion as to the matter of racial pollution, the court then proceeds to go far afield in order to bring the case under the Decree .Against Public Enemies.
THE PRESIDENT: The Tribunal will now recess for ten minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
JUDGE HARDING (Continuing the reading of the Judgment): Here the essential facts proved were that the defendant Seiler's husband was at the front and that Katzenberger, on one or possibly two occasions, had visited h* after dark. On both points the following paragraphs of the opinion are enlightening:
"Looked at from this point of view, Katzenberger's conduct is particularly contemptibel. Together with his offense of racial pollution he is also guilty of an offense under paragraph 4 of the ordinance against people's parasites. It should be noted here that the national community is in need of increased legal protection from all crimes attempting to destroy or undermine its inner cohesion.
"On several occasions since the outbreak of war the defendant Katzenberger erept into Seiler's flat after dark. In these cases the defendant exploited the measures taken for the protection in air raids. His chances were further improved by the absence of the bright street lighting which exists in the street along Spittlertorgraben in peacetime. He exploited this fact fully aware of its significance because thus he instinctively escaped during his excursions being observed by people in the street.
"The visits paid by Katzenberger to Seiler under the protection of the blackout served at least the purpose of keeping relations going. It does not matter whether during these visits extra-marital sexual relations took place or whether they only coversed as when the husband was present, as Katzer berger claims. The request to interrogate the husband was therefore overruled. The court holds the view the defendant's actions, done with a purpose within definite plan, amount to a crime against the body according to paragraph 2 of the ordinance against people's parasites. The law of 15 September, 1935, has been passed to protect German blood and German honoe. The Jew's racial pollution amounts to a grave attack on the purity of German blood, the object of the attack being the body of a German woman. The general need for protection, therefore, makes appear as unimportant the behavior of the other partner in racial pollution who anyway is not liable to prosecution.
The face that racial pollution occurred up to at least 1939-1940 becomes clear from statements made by the witness Zeuschel to whom the defendant repeatedly and consistently admitted that up to the end of 1939 and the beginning of 1940 sh* was used to sitting on the Jew's lap and exchanging caresses as described above.
"Thus the defendant committed an offense also under paragraph 2 of t** ordinance against people's parasites.
"The personal character of the male defendant also stamps him as a people's parasite. The racial pollution practiced by him through many years grew, by exploiting war-time conditions, into an attitude inimical to the nati** into an attack on the security of the national community, during an emergency.
"This was why the defendant Katzenberger had to be sentenced both on a charge of racial pollution and of an offense under paragraphs 2 and 4 of the ordinance against people's parasites, the two charges being taken in conjunction according to paragraph 73 of the criminal code.
* * * * * * * * * * * * * * * * "In passing sentence the court was guided by these considerations:
The policital life of the German people under National Socialism is based on the community. One fundamental factor of the life of the national community is race. If a Jew commits racial pollution with a German woman, this amounts to polluting the German race and, by polluting a German woman, to a grave attack on the purity of German blood. The need for protection is particularly strong.
"Katzenberger has been practicing pollution for years. He was well acquainted with the point of view taken by patriotic German men and women as regards racial questions, and he knew that by this conduct he insulted the patriotic feelings of the German people. Nor did he mend his ways after the National Socialist revolution of 1933, after the passing of the Law for the Protection of German Blood, in 1935, after the action against Jews in 1938, or the outbreak of war in 1939.
"The court therefore regards it as indicated, as the only feasible answer to the frivolous conduct of the defendant, to pass death sentence, as the heaviest punishment provided by paragraph 4 of the Decree Against Public Enemies. His case takes on the complexion of a particularly grave crime as he was to be sentenced in connection with the offense of committing racial pollution, under paragraph 2 of the Decree Against Public Enemies, especially if one takes into consideration the defendant's character and the accumulative nature of commission.
This is why the defendant is liable to the death penalty which the law provides for only such cases. Dr. Bauer, the medical expert, described the defendant as fully responsible."
We have gone to some extent into the evidence of this case to show the nature of the proceedings and the animus of the defendant Rothaug. One undisputed fact, however, is sufficient to establish this case as being an act in furtherance of the Nazi program to persecute and exterminate Jews. That fact is that nobody but a Jew could have been tried for racial pollution. To this offense was added the charge that it was committed by Katzengerger through exploiting war conditions and the blackout. This brought the offense under the Ordinance Against Public Enemies and made the offense capital. Katzenberger was tried and executed only because he was a Jew. As stated by Elkar in his testimony, Rothaug achieved the final result by interpretations of existing laws as he boasted to Elkar he was able to do.
This Tribunal is not concerned with the legal incontestability under German law of these cases above discussed. The evidence established beyond a reasonable doubt that katzenberger was condemned and executed because he was a Jew; and Durka, Struss, and Lopata met the same fate because they were Poles. Their execution was in conformity with the policy of the Nazi State of persecution, torture, and extermination of these races.
The defendant Rothaug was the knowing and willing instrument in that program of persecution and extermination.
From the evidence it is clear that these trials lacked the essential elements of legality. In these cases the defendant's court, in spite of the legal sophistries which he employed, was merely an instrument in the program of the leaders of the Nazi State of persecution and extermination.
From the evidence it is clear that these trials lacked the essential elements of legality. In these cases the defendant's court, in spite of the legal sophistries which he employed, was merely an instrument in the program of the leaders of the Nazi State of persecution and extermination. That the number the defendant could wipe out within his competency was smaller than the number involved in the mass persecutions and exterminations by the leaders whom he served, does not mitigate his contribution to the program of those leaders. His acts were more terrible in that those who might have hoped for a last refuge in the institutions of justice found these institutions turned against them and a part of the program of terror and oppression.
The individual cases in which Rothaug applied the cruel and discriminatory law against Poles and Jews cannot be considered in isolation. It is of the essence of the charges against him that he participated in the national program of racial persecution. It is of the essence of the proof that he identified himself with this national program and gave himself utterly to its accomplishment. He participated in the crim of genocide.
Again, in determining the degree of guilt the Tribunal has considered the entire record of his activities, not alone under the head of racial persecution but in other respects also.
Despite protestations that his judgments were based solely upon evidence introduced in court, we are firly convinced that in numberless cases Rothaug's opinions were formed and decisions made, and in many instances publicly or privately announced before the trial had even commenced and certainly before it was concluded. He was in constant contact with his confidential assistant Elkar, a member of the criminal SD, who sat with him in weekly conferences in the chambers of the court. He formed his opinions from dubious records submitted to him before trial. By his manner and methods he made his court an instrumentality of terror and won the fear and hatred of the population. From the evidence of his closest associates as well as his victims, we find that Oswald Rothaug represented in Germany the personification of the secret Nazi intrigue and cruelty. He was and is a sadistic and evil man. Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice.
Upon the evidence in this case it is the judgment of this Tribunal that the defendant Rothaug is guilty under Court three of the indictment. In his case we find no mitigating circumstances; no extenuation.
THE PRESIDENT: Judge Brand speaking for the Tribunal. The interpreters will not find this portion in the transcript. Pages 243 to 247 are removed from the text and constitute no part of the opinion of this Tribunal. In lieu of those pages, the following statement is to be inserted:
"The evidence has not convinced the Tribunal beyond a reasonable doubt of the guilt of the defendant Barnickel. He is therefore acquitted on all counts."
JUDGE BLAIR: Judge Blair continuing with the judgment of the Tribunal.
The Defendant Petersen Upon the evidence submitted, it is the judgment of this Tribunal that the defendant Hans Petersen is not guilty under any of the counts charged against him in the indictment.
JUDGE HARDING: Judge Harding continuing with the reading of the judgment.
The Defendant Nebelung Upon the evidence submitted, it is the judgment of this Tribunal that the defendant Nebelung is not guilty under any of the counts charged against him in the indictment.
JUDGE HARDING: Judge Harding continuing with the reading of the judgment.
The Defendant Cuhorst The defendant Cuhorst is charged under Counts two, three and four of the indictment.
There is no evidence in this case to substantiate the charge under Count two of the indictment.
As to Court four, the proof established that Cuhorst was a Gaustellenleiter and so a member of the Gau staff and a "sponsoring" member of the SS. His function as Gaustellenleiter was that of a public propaganda speaker.
In its Judgment the International Military Tribunal, in defining the members of the Party Leadership Corps who came under its decision as being members of a criminal organi zation, states the following:
"The decision of the Tribunal on these staff organizations includes only the Amtsleiters who were heads of offices on the staffs of the Reichsteitung, Gauleitung, and Kreisleitung. With respect to other staff officers and Party organizations attached to the Leadership Corps other than the Amtsleiters referred to above, the Tribunal will follow the suggestion of the prosecution in excluding them from the declaration."
There is no evidence in this case which shows that the office of Gaustellenleiter was the head of any office on the staff of the Gauleitung.
With regard to the SS the Judgment of the International Military Tribunal is as follows:
"The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had boon officially accepted as members of the SS as enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter * * * ."
Referring back to the membership enumerated, the Judgment declares:
"In dealing with the SS, the Tribunal includes all persons who had been officially accepted as members of the SS, including the members of the Allgemeine SS, members of the Waffen SS, members of the SS Totenkopf Verbaendo, and the members of any of the different police forces who were members of the SS."
It is not believed by this Tribunal that a sponsoring membership is included in this definition.
The Tribunal therefore finds the defendant Cuhorst not guilty under Counts two and four of the indictment.
As to count three the problem is considerably more complicated. There are many affidavits and much testimony in the record as to the defendant's character as a fanatical Nazi and a ruthless judge. There is also much evidence as to the arbitrary, unfair, and unjudicial manner in which he conducted his trials. Some of the evidence against him was weakened on cross examination, but the general picture given of him as such a judge is one which the Tribunal accepts.
The cases to be considered as connecting him with crimes established in this case under Count three involve the question as to whether the evidence establishes his connection with the persecution of Poles. In this connection we have given particular consideration to the Skowron and Pietra cases.
Unfortunately the records of the Special Court at Stuttgart were destroyed at the time that the Place of Justice in Stuttgart was burned. There are, therefore, no records available as to the cases tried by Cuhorst.
From the evidence available, this Tribunal does not consider that it can say beyond a reasonable doubt that the defendant was guilty of inflicting the punishments which he imposed on racial grounds or that it can say beyond a reasonable doubt that he used the discriminatory provisions of the Decree Against Poles and Jews to the prejudice of the Poles whom he tried, While the defendant Cuhorst followed a misguided fanaticism, certain things can be said in his favor.
He was severely criticized for his leniency by the defendant Klemm in a number of cases which he tried. He was tried by a Party court for statements considered to reflect upon the Party, which he made in a trial involving Party officials.
Subsequently he was relieved as a judge in Stuttgart because he apparently did not conform to what the State and Party demanded of a judge.
This Tribunal does not consider itself commissioned to try the conscience of a man or to conform to what the State and Party demanded of a judge.
This Tribunal does not consider itself commissioned to try the conscience of a man or to condemn a man merely for a course of conduct foreign to its own conception of justice. According to its training and conception of the law, it is limited to the evidence before it as to the commission of certain alleged offenses. Upon the evidence before it, it is the judgment of this Tribunal that the defendant Cuhorst has not been proved guilty beyond a reasonable doubt of the crimes alleged and that he be, therefore, acquitted on the charges against him.
THE PRESIDENT: Judge Brand continuing with the reading of the opinion of the Tribunal.
The Defendant Oeschey The defendant Oeschey joined the NSDAP on 1 December 1931.
He was war representative for the Gau Main Office for legal aid and legal advice. After filling other offices he was appointed on 1 January 1939 to the office of Senior Judge of the District Court at Nuernberg; which office he held until 1 April 1941. He was then appointed District Court Director at the same court. He was a presiding judge of the Special Court in Nurnberg.
By decree of 30 July 1940 of the Reich Legal Office of the NSDAP, he was provisionally commissioned with the direction of the legal office of the NSDAP in the Franconia Gau, and the Leadership of the Franconia Gau in the NSRB, the National Socialist Lawyers' League. He carried out his duties in the Leadership Corps of the of the Party at the same time that he was serving as a judge of the Special Court.
His personnel file in the Reich Ministry of Justice shows that he was highly recommended for his Party reliability by at least five different public officials.
He was drafted into the army in February 1943, and remained in the army until the end of the war; however, he was released for the period from 4 April until 14 April 1945, during which time he functioned as chairman of the civilian court martial at Nurnberg. The record discloses that he and the defendant Rothaug were the guiding if not controlling, spirits of the Special Court at Nurnberg, which was known as the most brutal of the special courts in Germany.
Among many cases which gave evidence of his arbitrary character we will give detailed attention to two:
In March 1943, Sofie Kaminska, a widowed Polish farm laborer, and Wasyl Wdowen, a Ukrainian, were indicted before the Special Court at Nurnberg for alleged crimes as follows:
Kaminska for a violation of the law against Poles and Jews in connection with the crime of assault and battery and threat and resistance to an officer; Wdowen for the alledged crime of being accessory to a crime according to the law against Poles and Jews, and for attempting to free a prisoner. The case was tried before the Special Court, the defendant Oeschey presiding.
The facts on which the sentence was based may, with complete fairness to the defendant Oeschey, be very briefly summarized. Shortly after the invasion of Poland, Kaminska "came to Germany, being committed to work there". Kaminska and Wdowen were lovers. They were both working for a farmer, Gundel. They demanded pay from Gundel, which was refused, and they became more insistent. "The defendant Wdowen actually gave the farmer a push". "In his distress Gundel called for help of the Pfc. Anton Manner, who was in uniform and happened to be spending his leave there." A quarrel followed.
Kaminska slapped the soldier's face, and the soldier slapped her face. During the dispute the soldier's combat infantryman's badge fell to the ground. There were various demonstrations; the soldier drew his bayonet and Kaminska ran out of the room and took a hoe, but did not get a chance to attack the soldier because he closed the door. Shortly thereafter, the soldier was riding on his bicycle and the Pole, Kaminska, threw a stone at him without, however, hitting him. The next day a police official came out to the farm and arrested Kaminska, who followed him "unwillingly". Wdowen, contrary to the instructions of the police officer, followed them. The policeman slapped Wdowen's face twice to force him to turn back. Nevertheless, Wdown followed to the door of the cell and attempted to assist the Polich woman, Kaminska, in resisting imprisonment. The very most that can possibly be said of the evidence, as stated by the defendant Oeschey himself, is that there was good squabble with mutual recriminations and threats. It is to be understood that many of the statements heretofore made, as quoted from the opinion, were denied by the defendants in that case but, as before stated, we do not retry the case upon the facts. The court argues at great length concerning the claim of the prosecution that the stone weighed a half a pound and should be considered equal to a cutting or thrusting weapon. The court said:
"The defendant had the insolence to attack a German soldier; she took up an offensive position which would have led to a great blood bath if the soldier had not evaded the stone which was hurled at him."
The court said of Kaminska: "She thereby characterizes herself as a Polish violent criminal", and then stated:
"As the defendant on 1 September 1939 was a resident in the territory of the former Polish State, she had to be found guilty, in application of paragraphs II, III, and XIV of the Penal Law against Poles, of a crime of assault and battery in coincidence with a crime of threat, a crime under paragraph 1, Section 1, of the law against violent criminals, and of a crime of offering resistance to the authority of a State."