The punishment.
It has thus been shown that all the requirements are fulfilled for the establishing of the crime of undermining the defensive spirit as they are laid down in the law (Par. 5 1 if the Special Military Penal Code). In normal cases the law prescribes capital punishment, and only permits prison terms in less serious cases. In the present criminal case there can be no thought of a "loss serious case". The person concerned is a business-man owning a fortune of approximately 1 Million Marks as well as a taxed not income of 150,000 barks perannum as he himself assessed it in the lost years, a person who should feel grateful to the present government for permitting him so large a benefit. If such a leading businessman misuses his commercial reputation to destroy patriotism in old officers and public servants and, what is worse, to use his defeatist influence on an employee who is defendant on him, he must be exterminated as a source of infection in the German people. Thus only the normal punishment for the undermining of the defensive spirit to undermine the united will of the German people for self-defense he also committed the crime of proenemy activity (Per 91 b Penal Code.) The punishment had however to be chosen from the paragraph on undermining of the morale spirit of the defensive Armed Forces which provides the heavier punishment.
The proceedings have shown that this captain of commerce puts his money and his business above the welfare of the fatherland. Justice therefore take them from him and use them to a better purpose for the good of the German people. The court has consequently conliscated the defendant's property excepting, however, a certain amount to be left to the defendant's wife for her maintenance and that the workers and employees keep their positions.
It goes without saying that such an infamous crime, by which the monarchist in 1943 tried to stab the front-line soldier in the back is just the same cowardly way as the Jew and Marxist did in 1918, will cause the offender to lose his civil rights for ever."
That is signed by two names representing the judges. It will be noted from the portions of the opinion which we have just read that it was the case first heard before the 1st Senate of the People's Court on the 15th of February 1944. The case was next heard before the People's Court on 8 July, before the Special Senate of the People's Court, at which Dr. Freisler presided. We also wish to read certain portions from that opinion; from that verdict. May I inquire at this time whether the Court would like us to proceed with the rest of this document tonight; it should take approximately fifteen minutes, which would be twenty minutes to five. If the Court is willing, we are willing to proceed and complete this document.
THE PRESIDENT: We will utilize the four minutes that remain; you can go a little further.
MR. KING: I am now about to read from page 21 in the English text, from the opinion-verdict of the Special Sinate People's Court,which was heard on 8 July, 1944 NG-155 -
"August Bonness who after attending high school (Gymansium) entered the business of his father as publisher and managed this business later on for a long time independently, is in a good financial position. He estimates his yearly income at 150,000 Reichsmarks.
He did his duty during the First World War, received the Iron Cross Second Class and was finally also promoted to the rank of officer. For organizational cooperation he received the Silesian Eagle. He was always interested in the German defense idea, established several veterans associations, was active in them and created the well-known Museum of Tin Soldiers in Plassenburg Kulmbach, which according to him now consists cf over 250,000 tin Soldiers and which represents historical events in true-to-life dioramas. BONNESS attached special significance to the fact that among these tin Soldier exhibits there is also a true-to-vature representation of the Nurnberg Party Rally and the Act of State of Potsdam.
August BONNESS says that he had always been a very nationalisticallyminded person, points out that he was business manager of the citizens" council of Postdam during the time of the collapse after the World War and that he was a member of the "Stahlhelm" until it was incorporated into the NSDAP.
He further states that he sympathized with the Nazi Party even before the seizure of power and he submitted documents which show that since 1931 he gave material support to the formations of the Party. From 1933 on he also supported the formations cf the Party and contributed considerable amounts for collections, which, however, was to be expected in view of the size cf his income.
He did net become a member of the Nazi Party or of one cf its formations. But that would have been impossible, because he was freemason of 6th degree.
Bonness' enterprise numbers about 200 staff members. Bonness emphasized that he took special care cf his staff, ever and above the requirements. Thus he took out an insurance for them which provided for considerable payments (2000 Reichsmarks to 15000 Reichsmarks) to the individual staff members after they had served in his enterprise for a certain period.
"Although all of this - except for his former freemasonry and his not being a member of cur Party or of one of its formations - would lead to the conclusion, that, especially now, in this battle of destiny for our people he would be an example of a man with strong principles, on several occasions, he made strong undermining and defeatist statement."
I think I can complete what I want to read in two minutes. I turn now to page 27, of the English text, the second fall paragraph from the bottom of the page:
"By such continuous defeatism Bonness turned himself at the same time into a tool for the propaganda of cur war enemies. For the weakening of our inner stability and of our strength fer resistance and fighting in general as well as the shaking of our belief in victory is one of the main 'weapons' on which air enemies reckon. A man like Bonness knows too that such undermining of the morale aids the enemy.
"The man who does such a thing, and in the fourth year of war, reveals himself as a traitor to nation in its struggle and has lost his honor forever. He must be punished by death without any possible merits he may have acquired being taken into consideration. For treason allows of no compensation by merits, as would naturally be possible if only mistakes had been made. The safety of the Reich demands this punishment; the soldiers on our fronts demand it. They must be assured that no 1918 reoccurs behind their backs. This punishment is necessary because defeatism easily becomes a disease. and it is especially necessary in this case because Bonness is a man in a high position whose duty it is especially to set an example.
"Under the protection of the Reich Bonness earned a great deal and was able to acquire a considerable fortune. Nevertheless he has betrayed our Reich and our nation. It is only just that this fortune be confiscated. No consideration has to be taken either on close defendants who should not suffer guiltlessly and unnecessarily because of Bonness' treason. For Boness has no children and his wife, according to his own statement, possesses property amounting to about 100,000 Reichsmarks" And this is signed by Dr. Froisler and Dr. Schlomann.
THE PRESIDENT: We will recess at this time until tomorrow morning at 0930.
(The Tribunal adjourned until 28 March 1987 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 28 March 1947, 0930, Justice Marshall, presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
THE PRESIDENT: Mr. Marshal, will you please ascertain if all of the defendants are present?
THE MARSHAL: May it please your Honor, all of the defendants are present in the Courtroom with the exception of the defendants Rothaug and Engert who are absent through illness.
THE PRESIDENT: A proper notation will be made.
DR. KOESSL: May it please the Tribunal, the prosecution has announced that of the number there will be heard as witnesses tho former Oberlandesgerichtrat Goeringer and the former Oberlandesgerichtsrat Gerber from Nurnberg. The subject under evidence has not boon stated but I assume that the two witnesses will be examined about events which concern my client Rothaug. The two witnesses are of tho greatest importance for my client. My written motion of 21 March and at this trial before the Tribunal has pointed out that it makes things very difficult for my client if these important witnesses are heard in his absence. Naturally I cannot guage whether it is absolutely necessary that the case Rothaug ms being dealt will now. I would ask tho Tribunal to decide whether those important witnesses must be examined at this juncture or whether a way could be found to examine these witnesses two weeks later?
MR. KING: May it please the Court. I believe tho prosecution is already on record as to its wishes in this matter.
THE PRESIDENT: First of all may we inquire whether the testimony of these two witnesses will relate to the defendant Rothaug?
MR. KING: Defense counsel assumes correctly; they will. The testimony in part will relate to the defendant Rothaug. We have previously stated to the Court and to defense counsel outside of court that we would permit, so far as we were concerned, any amount of time that ho deemed necessary, either during or after the time that the witnesses testify so that he could confer with his client in so far as it was necessary because of what these witnesses had said.
It's going to seriously jeopardize, even make it impossible to present this evidence if we have to wait for another month which, according to the testimony of the prison physician, is the time that will elapse before the defendant Rothaug may be expected back in Court. May that reason we do not at this time make a counter suggestion in addition to the ones we have already made.
JUDGE BRAND: May I ask you a question? Does your offer include the idea that the daily transcript of testimony could be put into the hands of the defendant Rothaug and his counsel and that they would be permitted to cross examination after the defendant Rothaug has actually seen the verbaty transcript of the testimony against him?
MR. KING: Yes, Your Honor. When defense counsel first approached Mr. Wooleyhan and myself on the proposition a week ago we suggested that possibility. We said that we did not see how his client could be harmed under the circumstances that we proposed which were, one, that he would be, so far as we were concerned, entitled and permitted to have a copy of the transcript and such recess, at least so far as cross examination of the witness was concerned, until that transcript had been examined by his client.
JUDGE BRAND: Thank you.
DR. KOESSL: May it please the Tribunal, the difficulty of this suggestion from the prosecution is mainly that the German transcripts are only received by us after considerable delay; at least six, even more days pass until the transcripts reach us. If it is certain that the transcript on this examination reach me quickly then I am in agreement with the suggestion of the prosecution.
THE PRESIDENT: We will not rule on this matter until the beginning of the afternoon session today but we will rule on it today so that arrangements can be made well in advance.
It might be well to have an estimate on the part of the prosecution as to how rapidly the German translation can be produced.
MR. KING: Your Honor, that is not under the control of the prosecution We have absolutely nothing to do with the processing of the transcript itself. We receive our copy of the English in the same manner that the Secretary-General docs and while we might add our weight to that of the Court requesting expedition of the production of the German transcript, we are, certainly not the controlling personnel in the distribution or production.
JUDGE BRAND: But we do understand you to offer that defense counsel may have opportunity to read the German translation of the daily transcript of those oral examinations and their after to have the opportunity to cross examine?
MR. KING: That's correct.
JUDGE BRAND: Regardless of when the transcript and the German translation reach them?
MR. KING: That, of course, is signing a blank check, your Honor, but I don't think under the circumstances we can state it any differently.
JUDGE BRAND: Perhaps the Court can help in getting those transcripts to the defendant in a hurry.
MR. KING: That would be appreciated.
THE PRESIDENT: The matter will be ruled upon at 1:30 in the afternoon. proceed with your prosecution.
DR. KING: At the close of the session yesterday afternoon the prosecution was in the midst of presenting the Document NG-155 which will become Exhibit 181 when formally offered in evidence, which is the case, as the Court will recall of on August Bonness and it involves two appearances before the Peoples Court on charges of malicious utterances which undermine the defensive fighting strength of the army. I wish at this time to correct an inadvertence which has been pointed out to me this morning by one of defense counsel. He recalls that I said regarding the second of those appearances by Bonness before the Peoples Court that it was before the Special Senate of the Peoples Court.
That, as can be seen by referring to the opinion verdict itself, is not the case. The second hearing was before the First Senate of the Peoples Court, both of then being heard before that Senate. One in February and the other in July of 1944. We completed reading of the second opinion verdict on page 23. We now invite the Court to turn to page 38 of the English text. That is a letter dated, Berlin, 24 February 1944. This letter refers back to the first opinion before the First Senate of the Peoples Court. This is addressed to the Reich minister of Justice, care of the Senior Public Prosecutor -- I should say, care of the Senior public prosecutor Dr. Franke or his deputy in office. It concerns the death sentence against the publisher August Bonness of Potsdam. I read only the last two paragraphs of that letter:
"Enclosed I am submitting the proceedings concerning the publisher Bonness who on 15 February 1944 was sentenced to death by the First Section of the People's Court of Justice. The sentence is in keeping with the proposal of my substitute at the session.
"The condemned is in custody pending execution of the sentence at the prison of the District Court in Potsdam. I have ordered his transfer to the penitentiary at Brandenburg (Havel) Goerden.
"A clemency file will be submitted later."
That is signed by Lautz.
May I ask the Court to turn now to Page 41 of the English text. There are marginal notes on this document, which is a letter from the Reich Minister Thierack to the Party Member Stuertz. Those marginal notes I shall not read. This is dated 25 September 1944 to Gauleiter Stuertz, "Re: Criminal case against the publisher August Bonness of Potsdam for undermining the morale of the Armed Forces.
"Dear Party Comrade Stuertz?
"On 8 July 1944 the People's Court sentenced to death the year old publisher august Bonness of Potsdam for undermining the morale of the armed forces. I refer to the facts as contained in the annexed copy of the sentence.
"I now have to decide whether the sentence is to be carried out or whether it is to be suggested to the Fuehrer that the sentence be modified. For the following reasons, I consider that exceptionally a reprieve could be granted to the condemned."
We now skip to the last paragraph of that letter on the following page:
"In view of the nature of his remarks and considering the personality of the offender, I do not think his crime so hideous as to make the execution an absolute necessity, I therefore intend to suggest to the Fuehrer exceptionally that the death sentence be converted into penal servitude for eight years, but before doing so, I should like to have your opinion on the case as soon as possible.
Heil Hitler I Yours, Thierack."
It is also to be noted on the original photostatic copy which we are submitting that the initials of Klemm appear on this letter, right under the initials of Thierack.
There has been a correction sheet distributed to the Court, and that addition will be noted on the correction sheet.
We ask the Court now to turn to Page 43 of the English text. This is a letter which also has some marginal head notes,which we'll not read at this time. It is from Gauleiter Stuertz, addressed to the Reich Minister of Justice, Dr. Thierack, and it is dated 31 October 1944. The initials of Klemm appear on the letterhead, indicating that it had at least passed across his desk after its receipt in the Ministry of Justice.
"Your Excellency, Dear Part Comrade Theirack:
"In reply to your letter of 25 September 1944 concerning the execution of the death sentence pronounced by the People's Court against the publisher August Bonness of Potsdam, I find myself obliged after hearing the report of the local Party official and carefully consulting my judicial adviser, to declare myself decidedly against any reprieve."
We ask the Court to turn now to the last two paragraphs of the English text of this letter:
"To pardon Bonness would mean a triumph of those reactionary circles in Potsdam which will never learn to like us but which will then have to dread us, at least in the interest f the State. I therefore urge you to refrain from a reprieve in this case, especially as I am of the opinion that the People's Court, after having been obliged by way of exception to deal with Bonness twice already, even if it judged his crime more leniently, might at least have served a penitentiary term on him in the second session. In my eyes, the execution of this death sentence, when it has been pronounced by the Supreme Court of the German Reich in two sessions. is a question of 'raison d'etat'. The merits of Bonness are, in my opinion, not sufficiently outstanding to justify a reprieve, quite apart from the fact that in my opinion the former merits of a man can net count in all matters which involve the undermining of the morale of the armed forces and high treason.
Heil Hitler I Yours Obediently, Stuertz."
And it will be noted in the left hand corner of that letter, the page from which we have just been reading, the word "execution", signed by Thierack and initialed by Klemm.
We ask the Court to turn to the following page, in the English text, u letter dated 14 November 1944, addressed to the Reich Minister of Justice, "Re: Appeal for reprieve on behalf cf Bonness of Potsdam, sentenced to death for undermining the morale of the armed forces.
"Gauleiter Stuertz has sent a copy of his letter addressed to the Reich Minister of Justice dated 26 October 1944 to the head of the Party Chancellery for information. In case there should be any intention of not carrying out the death sentence on Bonness but of granting him a reprieve, it is requested that copies of the two sentences served on Bonness, together with the documents of the reprieve, first be submitted to the Party Chancellery so that it may be given an opportunity to express its views. Heil Hitler I (By order) Dr. Hopf."
It appears in a letterhead that Klemm initialed the letter, after which we see it in the Ministry of Justice.
We ask the Court to note in passing that the letter on Page 47 of the English text is also initialed by Klemm.
We finally call attention to the brief note on Page 49 of the English text, which is signed by Dr. Thierack and reads:
"In the case against "August Bonness, "sentenced to death by the People's Court on the 8 July 1944, I hereby give orders with the Fuehrer's authorization for the sentence to be carried out.
Berlin, 23 November 1944. The Reich Minister of Justice, Dr. Thierack."
We offer the document NG 155 as Exhibit 181.
DR. GRUBE (Counsel for defendant Lautz) May it please the Court, I have just read through the original exhibit, and I find that in regard to this document we are concerned with a complete volume of records. I also find that in this volume of files there are many pages missing. I have already got the impression from the document at cur disposal that the important events which only by themselves explain the whole event have never been presented.
I do not wish to raise a formal objection against the submission of this document, but I would ask you to permit me to make the motion that the missing documents on this case should be submitted afterwards.
THE PRESIDENT: Do we understand that the Defense Counsel wants the opportunity to submit these, or are you asking that the Prosecution be required to submit them?
DR. GRUBE: This case was discussed recently concerning a similar volume of files. At that time we were concerned with the subsidiary files for the indictment and the sentences. At that time the Tribunal took the view that it was a matter for the Defense to make a motion that the missing documents should be submitted. I thought it was necessary for me to say that because of the imperfection of this document and that I should make a motion that the missing documents should be submitted.
THE PRESIDENT: The question is whether they are available and whether they can be found.
DR. GRUBE: Mr. President, may I say that I assume that the missing documents are available, and I assume that because this document, according to its outer appearance, must have been a complete volume of files of the Ministry of Justice, and therefore I think that the missing files must be available. One can see by the numbering of the pages that many pages are missing. For example, there is a gap between pages 24 and 42, and likewise the document begins with two handwritten documents by Thierack which are contained in our documents of 5 August and 12 august, in which Thierack says that a further application will be submitted.
Then the document continues on Page 19. That is to say, all the preceding pages, 1 to 18, are missing, but as there is evidently a complete volume of files, it must be assumed that those missing documents can somehow be found.
MR. KING: Your Honor, this roes back to the old question.
THE PRESIDENT: Let me ask you, do you know anything about these missing pares, assuming there are missing pages?
MR. KING: I only know that we have presented in this document all of the documents that came to us from Berlin. I can not say for sure there is not mere of these documents in Berlin. It is entirely possible that there are additional portions of it. However, when we get a general request from Defense Counsel to supply the entire file in a case like this, it may mean bringing down two or three file cabinets of material until we know what portions of the so-called missing documents the Defense Counsel wants. Vie are not in a very good position to even promise to try to find missing material. We certainly not want to get into the position of premising to bring down a every scrap of paper that may pertain to every one of these files because we all know from cur experience that it runs into volumes and volumes and hundreds of pounds of material.
THE. PRESIDENT: The ruling is that of the one heretofore made; that the Defense Counsel will be permitted to introduce anything they can find. We do not wish to impose further obligations on the Prosecution under the circumstances in this case. That is the ruling.
MR. KING: May I add just the word at this time. I think it must be obvious to the Court and to the Defense Counsel at this time that in many of these cases, we are presenting far mere material than we refer to here in Court, and far more material which we are obviously going to refer to when we come to summarizing our case conclusions. We are continuing to put in an abundance of material, much of which has no relevancy to the conclusions we wish to draw, for the reason that we do not want to delete from material that reaches us. We are putting in every case, with possible one or two exceptions, all of the material that reaches us from the document centers.
DR. BEHRING (For Defendant Klemm): May it please the Court, at this moment, I am just about to go to Berlin and, there I will meet the branch office of the Prosecution. I would like to suggest that at that occasion.
I should draw the attention of the gentlemen there to this matter, and as far as possible, when I come back after Easter, I shall bring with me the complete files.
I, too, in the case of the defendant Klemm, must make a reservation that those files should be complete because as far as I am aware, the files give a wrong picture concerning the conditions which existed at that time in Berlin. As I was in Berlin myself at the time and as I know of the Bonnes case, which caused a great sensation among the public, among the jurists, I believe that it would be in the service of the truth if, particularly, in this case, all files would be brought here.
DR. WANDSCHNEIDER (for the defendant Dr. Rothenberger): May it please the Court, on account of the material consideration, I would like to say a few words on this matter. The Tribunal has said and has ruled that the defense should be allowed in such a case, for the purpose of the Defense, to ask for a supplementation of the evidence. The question merely, which in all future cases which may occur, much a ruling which is even still insufficient for the Defense, would do justice to the actual facts.
The Tribunal will remember that at the beginning of this trial, in agreement with the Defense, the opinion was expressed that the documents should be submitted in a uniform manner and should be admitted in their entirety. That, as far as the Defense was concerned, was also in accordance with - need for a clarification as extensive as far as possible of actual facts. If, now, in the individual case, the Prosecution su****s a volume of files as one single document which, evidently, by emitting a few pages, is not complete, then that would upset such an objective picture and it would make it extremely difficult to obtain such an objective picture.
The objection which has been raised by the Defense to the effect that the Prosecution, the objection by the Prosecution that the Prosecution could not be expected to produce all material as in such a case. In my opinion this does not apply, and of decisive importance, the appreciation of the actual facts, we must know of all the motives which were decisive in making a decision and we must become acquainted with all these motives If we, the Defense Counsel, are told that our application concerning the obtaining of missing material, that we should make such applications; then that is theoretical for us and in practice does not help us at all because we have no contacts with the central office in Berlin; and, therefore, in the individual case can not judge which and in what documents are missing.
Therefore, I would like to ask the Prosecution and the Bench that in such cases where a document which should be regarded as one document as, for example, this complete volume of filos is in fact, evidently, incomplete, that in such cases the procution on its own behalf, attempts to obtain the entire volume of files. For the question as to what is essential in such a volume of files will naturally be judged somewhat differently by the Defense than by the Prosecution.
THE PRESIDENT: We think the ruling of the Tribunal fully covers the situation. He will assume, of course, that the Prosecution has produced all of the documents that they have in their position or that they know anything about. It will, therefore, be incumbent upon the Defense to find such additional parts of this document as they think will be material to their defense. They certainly will be permitted to do that if they find any such material.
MR. KING: May I have my memory refreshed; has the Court accepted this into evidence?
THE PRESIDENT: We have received the document in evidence.
MR. KING: He invite the Court, at this time, to turn to document book No. 2, page 27.
JUDGE BRAND: Just a brief comment upon the matter that has just been discussed. It seems to me that the Counsel for the Defense perhaps fails to distinguish between the ruling commonly applied with reference to a single entry of a document and the rule which should be applied as to an entire file containing many entire single documents.
That is the practice in many jurisdictions, but when one side offers only a part out of one single and entire document, that the other side is entitled to introduce the rest of that single entire document. I have never heard of any rule which provided, if one side, in a great file, produced a half dozen documents, that the other side is entitled to demand of the proponent the production of all the other documents in that file. The distinction must be whether consideration is given to it. On the other hand, of course, wherever procedure may be available in the rules for the production of evidence by the opponent, either by demand upon the Prosecution, or by the Defense, whichever it may be, and is available to them, to seek out additional separate documents from the great file. Do I make myself clear?
MR. KING: Yes, I think you do, Your Honor.
It is particularly difficult for us of the Prosecution, on the bare statement of the Defense that the document we have presented is incomplete to know in what respect they feel it is incomplete. On the other hand, the Defense would seem to be most largely involved. They wought to remember since one of them was a co-signer of the death sentence, the defendant ought to remember what files he believes important to certain extenuating or mitigating circumstances in his case, and he should be able to direct his counsel, at least, instruct the people who produce the documents, as to what they specifically believe will be of aid to them. We, in the abstract, certainly are not in a position to tell from a l,r.e file, if a large file exists, what wought to produce for them, we think that is up to the Defense.
DR. WANDSCHNEIDER: May it please the Tribunal, I wish to apologize for interrupting again. This is purely a technical matter. The translation was rather faulty and unfortunately I and my colleagues, as well; did not hear clearly the statement which the Judge just made now. The question is extremely important, and I would be grateful if that statement Could repeated in a clear translation, and I am referring to the statements by the Judge and by the Prosecutor.
I could not hear it very good.
JUDGE BRAND: Perhaps the translation when it comes cut, if it is not clear, then the occasion may arise to repeat it.
DR. GRUBE (for defendants Klemm & Lautz): May it please the Tribunal the representative of the Prosecution has just said one of the two defendants, who are obviously greatly interested in this matter, himself, was one of the signers of the death sentence, and should therefore **** to say which documents are parts of documents, which are missing now, are of importance. To clarify the matter I should like to say that neither of the defendants signed the death sentence, nor that Klemm or the defendant Lautz had anything to do with it. The Prosecution just told us now that it was a matter for the Defense to say which documents are important, I should like to point out the following, particularly with reference to this document:
This document is a volume of files of the Reich Ministry of Justice. The defendant Lautz never had the possibility as long as he was in the place to sec these files. It is entirely unknown to him what the **** of the files arc. He suppose on account of gaps in the contents that the must be material parts, in effect, which are important for the Defense. Therefore, we need the missing parts first of all to examine them to see whether whether they arc important, and only then can we decide whether to introduce them as documents.
MR. KING: The Defense has objected further to my statement that one of the Defendants was a co-signer of the death sentence in this case. He do not wish at this time to argue the point further. That was not a conclusion which went, at the time, to material aspects of the case. It was already in connection with the question of documentation for which we will or will not make the statement in connection with the conclusion-we-wish to draw from this document; we do not at this time say. I think it is clear from what Defense Counsel has just said that they are not in a position to say which is important and which is not important; and, therefore **** in that position they want us to produce the entire file.
We have already gone on record to say we can not do this because, as a general rule, it would involve bringing thousands and thousands of pages of documents, and that would impose an insuperable burden upon the Prosecution and tax the time and strength of the Court.
THE PRESIDENT: The Tribunal has ruled on this matter.
MR. KING: We continue reading now on page 27 of document Book 2. The excerpts which we are about to read deal with cases tried in absentia either when a defendant is physically not present in court whore he is tried, or when the defendant is too ill to appear in court. It is relevant to the next case, NG-437, which we wish to present. NG-715, these are excerpts from the Criminal Code - German Code of Criminal Procedure of 1943, by Dr. Otto Schwarz. Section 205:
"Temporary Suspension "If the absence of the defendant or other obstacles involving the person interfere with the main proceedings; the court may hold up the case temporarily.
The presiding justice secures the evidence if necessary.
"Section 276 "I. Main proceedings can be held against a fugitive from justice if the public feeling for justice demands the prompt conviction of the crime.
"II. fugitive in the sense cf the directives of this paragraph is an accused who escapes German jurisdiction by residing abroad or hiding in the Reich."
Also we wish to read the excerpts from the Code of Criminal Jurisprudence, 1934; by A.O. Loewe, from pages 39-40:
"Proceedings against a defendant can be started only if his state cf health permits a suitable defense of his right. If the defendant shows reliable signs indicating that these prerequisites are lacking because of serious troubles concerning his physical or mental state of health, no proceeding can be maintained against him."
"If the defendant's lack of ability to stand trial has to be taken into consideration without any restriction. This principle has teen served in current decisions."