A Until the law against Jews and Poles was promulgated, at the end of 1941, it was tried by Rothaug as far as possible to use the basic fact whether it was cruelty to animals or whether it was threat or whether it was an offense with assault to deal with them through the law against public enemies and thereby stamped them to a crime which merited the death sentence, and that concluded correspondence to the attention of the Reichshauptamp as Rothaug expressed that repeatedly when he said literally, "During the war death sentences would not -- must not be economical with death sentences, particularly not in the case of Poles. Adolph Hitler--" Naturally he said the Fuehrer at the time expressly declared that.
Q You mentioned a moment ago, in connection with criminal prosecutions against foreigners under the Public Enemy Law, "Cruelty to Animals." Can you remember in your experience the particulars of any case concerning cruelty to animals for which foreigners were tried and would you so describe in a case you can remember?
A I can remember two cases and I can remember them a little more accurately because the associate judges at those trials, after my trip abroad, told me about these two cases.
Q Witness, one moment. Who was the presiding judge at these two cases which you say you remember?
A The presiding judge in both cases was Rothaug. I also know the names of the associate judges. One case was concerned with a Pole in a stable. A recalcitrant animal had been touched by him with a fork at the knee joint. In fact, he had stunned it with that fork.
Q You state that this Polish farmhand pierced this farm animal in a stable with a fork. What kind of an animal was it?
A It was a cow. This animal had an infection and had a furuncle which was treated by a veterinary surgeon. The Pole was denounced by his peasant. The case was described as so-called economic sabotage, and the Pole was sentenced to death. The verdict was carried out.
Q You state that -- as I got it through the microphone -- that this Pole for stabbing the cow in the knee with the pitchfork. was denounced by his peasant. I assume you mean his farmer employer.
You say you remember another case involving cruelty to animals. Would you describe that one?
A The other case was this. A cow needed treatment by a veterinary surgeon because it had indigestion and was not inclined to eat its feed. The veterinary surgeon found that the cow had swallowed glass splinters. The verdict which I read gave as a reason that the Polish farmhand who worked on the farm had given the cow this glass with its feed; that he was found to have put these glass splinters in its food in order to damage the farmer. The Pole denied this. In considering all circumstances the court assumed that the Pole had committed this offense. He was sentenced to death. The Ministry refused to grant a pardon. The verdict was carried out.
Q In these two cases that you have just described involving farm animals, in both cf which cases Rothaug was the presiding judge as you have said, can you explain legally how the death penalty in each instance was arrived at. under the law?
A In one case I know that the death penalty was explained by the corresponding previsions of the law against Poles.
It was easy thus to find a crime meriting death sentence. I should like to say this in quotation marks -- "to construct such an offense."
Q Excuse me, witness, this phrase you have just placed within quotation marks; namely, "construct such an offense". Do you mean that an offense was created were none in fact existed?
A I want to express that if, for example, under paragraph 4 of the law against public enemies it said if the sound feelings of the people demanded, the death penalty will be pronounced. That meant that regularly, particularly against Poles, not the true sound instincts of the people decided, but the orders of the Fuehrer, Party demands, the demands of the RSHA, and that according to the attitude of Rothaug in the individual cases, once had a more brutal effect and then a somewhat less brutal effect.
Q What is your conception, while you were on the bench as a special court judge, what is your conception of the demands of the sound sentiment of the people -- the same as that of Rothaug's?
A No. In particular about the foreign cases we often had fierce debates with Rothaug. One associate judge in particular -- I mentioned that yesterday -- was definitely personally offended when he quite concretely put the question whether a Pole could not in any way comply with the conditions of the law against public enemies. Rothaug very quickly regained the upper hand when the law against Jews and Poles was presented to us.
Q You say that for the reasons you have just expressed, your conception of what the sound sentiment of the people demanded and Rothaug's conception of that same thing were different?
A Yes.
Q Did you ever have a clear definite idea of what the sound sentiment of the people demanded?
A I once briefly expressed that in one of those discussions. I pointed cut that the concept, sound sentiment of the people, omitted every ethical form of the penal law, and what did Rothaug answer?
"You stick to your Christian education." In this connection he actually said to me, "That God with the long beard, in whom you believe, does not exist."
Q Dr. Ferber, before we leave this matter cf foreigners in general, in 1942 at the Nurnberg Special Court do you remember a criminal proceeding against a foreigner named Johann Lopada?
A Yes.
Q Would you describe, insofar as you remember, your official connection with that case? Were you an associate judge on that case?
A Yes, yes.
Q Then you also probably remember that Lopada in that case had committed an assault on the wife cf a farmer for whom he worked?
A Yes, yes.
Q Would you tell us, assuming that no such law as the law against public enemies existed, what would have been Lopada's probable sentence under the penal code for having committed that assault?
A The question was in effect answered by a court because Lopada, because of that offense, by the District Court of Neumarkt was sentenced and the maximum penalty possible for an assault -- that prison sentence did not correspond to the ideas cf the authorities competent for political cases for the Special Court, Nurnberg. Following the nullity plea for canceling of the sentence by the Leipzig Senate, the case was transferred to the Special Court in Nurnberg.
Q When the Lopada case was tried for the second time by the Nurnberg Special Court the law against public enemies was applied to Lopada, was it not?
A Yes, it was.
Q One moment, please, witness. And Rothaug, as presiding judge in applying that law against public enemies achieved the death sentence, did he not?
A Yes,
Q And that death sentence was achieved because under the language of the law against public enemies the sound sense of the people demanded it; is that right?
A Yes, yes.
Q Whereas, when Lopada was first tried by the District Court in Neumarkt he was tried for simple assault under the penal code, wasn't he?
A Yes.
Q And for simple assault under the penal code in his first trial, his sentence was two Years' imprisonment; was it not?
A Yes.
Q Witness, did that sort of case wherein the sound sentiment of the people demanded a death penalty, this same sound sentiment you have just stated that you never personally understood, occur frequently under Rothaug?
A The cancellation of lenient sentences by the local court and the transfer to the Special Court was not frequently observed. I believe that the case of Lopata was the second case of that kind that was transferred to us. Rothaug from the very outset avoided that; avoided such difficulties in the evaluation because the political authorities in the whole area of Oberlandesgericht did know that Rothaug, that the Special Court of which he was in charge, that desired verdicts would be passed. For only thus can it be explained that two Polish women from another area were transferred to Rothaug's competency by the State Police because the State Police was certain that under Rothaug the desired death penalty would be pronounced; whereas in the local competent special court, at that tine under Bayreuth who evidently was mistrusted by the State Police.
Q In 1942, again with reference to the Nurnberg Special Court, do you remember a case involving a defendant named Kreisler?
A Yes.
Q Would you briefly describe what you remember from the Kreisler case?
AAll I remember about the case of Kreisler was that it was a matter of an indictment; that Kreisler had given bread to a Soviet prisoner of war during the afternoon break, at work, and that he had also occasionally talked to that Russian prisoner of war.
Q You stated the defendant Kreisler was indicted for giving bread to a Russian prisoner of war and talking to him during a break in their working day.
A Yes.
Q Do you also remember what was the sentence against Kreisler here?
AAs far as I recollect, Kreisler was forbidden association with prisoners of war, and was sentenced to a term in the penitentiary.
Q Leaving the matter of foreigners at the moment, I understand that sometime in 1942 or 1943, while he was Under Secretary in the Ministry of Justice, Dr. Curt Rothenberger visited Nurnberg; is that true?
A I remember that Rothenberger, as Under Secretary, soon after his appointment to that post, in 1942 late in the year, came to Nurnberg.
Q Well, Dr. Rothenberger was a very important person in legal circles at that time. Was a reception or meeting held in his honor?
A When the visit was mentioned, to my surprise I found that Rothaug showed an aversion against Under Secretary Rothenberger quite openly, even which in retrospect seems a little sarcastic. Particularly, he even had a photograph of Rothenberger in his pocket; he occasionally showed that photograph, not to glorify him, but rather to make him despicable, and said: Do you want to see what Herr Rothenberger, the Under Secretary, looks like? And then he pointed at the photograph, and in that connection he expressed that it was not an under secretary according to the wishes of the actual leaders of the party.
Therefore, Rothaug at the time did not condescend to attend a reception but that Boebig would alone have the honor of looking after the Under Secretary.
Q When the Under Secretary arrived, you say that only Boebig received him?
A Yes; Rothaug told us about that in the room.
Q Why did Rothaug -- did Rothaug say why he didn't attend?
A Rothaug in that context no longer expressed quite so strongly the aversion he formerly displayed toward the Administration of Justice; that according to his words he served only to provide writing paper and to provide pens and ink; the Administration of Justice had to be directed according to the will of the Fuehrer, and it was a famous word of Rothaug in those years and months: Kings reign, but they do not rule. Thereby he wanted to say that the Ministry could reign as for as the Administration was concerned, but that the actual direction of justice, the orientation of justice, that he orientated that from an entirely different point of view. It also became a famous saying at that time that frequently had to be quoted from Homer's Iliad: Only one is the king and only one is the ruler. That, of course, was only he.
Q Dr. Feber, in connection with your judicial activities on the Nurnberg Special Court, did you know Rudolf Oeschey?
A Yes, I did.
Q Would you please describe, briefly, your professional association with Oeschey; how did you happen to know him?
A I met Oeschey when in 1938 or 1939 he became associate judge at the Special Court, and I at that time was still Public Prosecutor.
Q You said yesterday, that sometime in 1942, Freisler, then President of the People's Court, came to Nurnberg to hold a session of the People's Court, which session was in fact held in this very room.
A That was a session in 1943, here in Room 581, this room.
Q You said yesterday that you attended that session.
A Yes, I was there.
Q Then why was it that Freisler, who didn't come to Nurnberg every day, and was at that time President of the People's Court, which, as we know was on a par with the Reich Supreme Court, why did he preside over a session of that court in this room when there was a much larger and better room directly upstairs; why was that?
A I still remember that at the same time in the room above us, Room 600, there was a Special Court session at which Oeschey was the presiding judge. One heard occasionally down here in Freisler's case the people in the room above as they rose and then sat down again. That can be explained because Freisler could not have Room 600 at his disposal because Oeschey did not change his session to another room.
Q. Do you mean to say that Oeschey would not make way for Freisler, the President of the Peoples Court?
A. Thinking back I state that sessions of the Peoples Court were announced and at the same time room was requested. The competent official certainly spoke to Oeschey about keeping one of the two rooms available for Room 600 as well as this room 581 were the rooms which were used for the Special Court. What must have happened is, that is, that Oeschey probably said that he would stay in 600 and that Freisler would have to be satisfied with 581.
Q. Can you explain how Oeschey could get away with a thing like that?
DR. SCHUBERT: I want to raise an objection to this question. The witness is being asked about things of which he himself has to say that he does not know the facts. He can only give us a sentence and it is not for him to give us a sentence.
THE PRESIDENT: The objection in this line of questions will be sustained.
Q. Dr. Ferber, in so far as you observed from the bench did Oeschey imitate Rothaug's judicial methods?
A. I myself only in a few cases had the opportunity as an associate judge and under Rothaug it could have hardly been ten cases. In those opportunities two or three times some wild abuse was uttered. In one case there was considerable correction of defense counsel which was in the style of Rothaug.
Q. Can you describe in any further detail, in so far as you observed it during the course of trial, Oeschey's treatment of witnesses, defendants and defense counsel?
A. I am thinking of one case which happened in this room here, 581, and which concerned a trial with a political flavor. The defense counsel was a holder of the golden hadge of honor. Herr Mueller, Herr Josef Mueller, to make it correct -- defense counsel at the time, made a motion for evidence which did not please politically. The Presiding Judge Oeschey put at the defense counsel that discussion of evidence was not desirable.
The defense counsel insisted on his motion for evidence and then Oeschey used these words: "Defense counsel, you can maintain your motion but I draw your attention to the fact there is also a secret State Police." The defense counsel did not draw further conclusions from that. When defendants were abused as far as the abuse of defendants is concerned, I remember one occurrence which actually led to a criticism of the SD in the trial at Amberg against the daughter of a farmer. This was a case of a prisoner-or-war working on the farm. Oeschey at that trial used the expression: "If our Fabrikfritscherl -- that is a trivial expression -- "well, if our factory guards in these times do such things we must have a little more understanding for factory guards to do that. That if you farmers were in the court doing the same thing, that is too much." The SD, I heard that myself, through Rothaug made a report saying that it had been unfavorably received. That Oeschey had made a difference between the rural population as something of a higher standing and the woman factory workers of something inferior.
Q. In 1943 at the Nurnberg Special Court do you remember a case involving a criminal proceeding against one Theresa Mueller?
A. Yes, I do. I know the Theresa Mueller case because I, myself, for the first time as a presiding Judge dealt with that trial. That was in 1942. Frau Mueller -
Q. One moment, witness, please. Who did you say was the presiding judge in the Mueller case?
A. At the first I, myself, was the presiding judge at that time. This was what had happened: Frau Mueller had written to her son on the Eastern front and said he was to see to it that he got home safe and sound -- partly in open words, partly camouflage. She stated the fact that he was to disappear from the front. One must consider that the Mueller family came from the political front of the Communist Party. The tragic thing about that case was that the son was immature and followed his mother's request. He eventually got into the hands of the partisans. He wasn't found again living. In his luggage a letter was found. That case caused me through the Public Prosecutor's Office -- the Senior Public Prosecutor' Paulus -- that this -- in fact, it caused me to consider this was not an offense that merited the death sentence under the war-time penal order and a sentence of five years in the penitentiary was fair because the woman had led a soldier to desert.
Q. You said that you were the Presiding Judge in the first trial of Therese Mueller. Was there a second trial?
A. Yes, there was. That verdict was cancelled by Leipzig. The Leipzig verdice expressed that in a case of this kind greater gravity could be assumed if the Communist tendencies of the family had been one of the motives for the woman's actions and even exclusively consideration of a mother toward her son had played a part.
Q. But your statement that your decision in the first trial of Therese Mueller was cancelled at Leipzig -- do you mean that the Reich Supreme Court voided your verdict by a plea of nullity?
A. Yes.
Q. Well, now, will you please tell the Court what happened when the Mueller case came back for re-trial?
A. The new trial had two new judges; there remained the judge who wrote up the verdict in the first trial; a new associate judge, and the president Deschey was new. In the new trial Frau Mueller was sentenced to death. The verdict after a pardon had been refused was executed.
Q. Was any new evidence introduced at this second trial, which was prosided over by Deschey?
A. After the second trial, I only spoke to the judge who wrote out the verdict and quite briefly I mentioned the case. Everything was established again that had been established during the first trial; that is the actual facts which were based -- the facts were certain on the basis of the letters. Only during the second trial more prominence was given to the fact that Frau Mueller had acted as a Communist. That is, the emphasis on the relation between mother and son was relegated to the back ground.
THE PRESIDENT: Mr. Wooleyhan, we will take the morning recess at this time.
(A recess was taken)
FURTHER EXAMINATION BY MR. WOOLEYHAN:
Q Dr. Ferber, just before this intermission you stated that in achieving the death sentence in the second trial against Therese Mueller, Oeschey, as presiding judge, emphazied the communistic activity of Mueller, which had not been emphasized in the first trial, over which you presided. Is that correct?
A Yes.
Q Were the facts in both trials the same?
A The evidence was the same.
Q All right, thank you. In 1944 several foreigners were tried by the Special Court in Nurnberg and sentenced to death for finding and appropriating to their own use a number of food ration coupons. I regret that I can not remember the names of the defendants, but do you remember such a case?
A Once there was a case discussed among the judges. At that time I was only the presiding judge. It was a case where foreign civilian workers in the area of the Parteitag-- the Party Rally Area-
Q Witness, excuse me. By the Area of the Parteitag Rally, do you mean the stadium here in Nurnberg?
A We understood and understand so today under the Parteitag area the entire complex of the stadium where the political leaders rallied--political leaders such as the leaders of the SA--and then the fields of the stadium for competitions. There these foreign civilian workers had picked up food cards, ration cards, which had been dropped by planes, and in some cases they tried to make use of them. I know of one such case.
Q You state that these food ration cards which these foreigners picked up out there in the Party Arena were dropped from planes. By that, you mean they were counterfeit cards dropped by the Allied Forces?
A Yes, they were food ration cards which were brought in by Allied planes and dropped here.
Q Were these foreigners that you have just mentioned tried by the Nurnberg Special Court?
A They came before the Special Court to be tried for sabotage of the food situation.
Q What was their fate at this trial? What happened?
A I observed the case, and I know that Oeschey was the presiding judge and that Hofmann was the associate judge who conducted the trial and that if not all, then at least some, of these foreign civilian workers were sentenced to death.
Q Were they, pursuant to this death sentence, in fact executed?
AAccording to my recollection, yes.
Q The year before that, in 1943, do you remember another case before the Nurnberg Special Court concerning criminal proceedings against one von Praun, P-R-A-U-N?
A The case against Mr. von Praun was talked about in the Palace of Justice for a certain time because Mr. von Praun had committed suicide while he was in prison pending trial.
Q You say that this von Praun committed suicide in prison before he was tried?
A He committed suicide by hanging after a preliminary hearing the day before in the Special Court and before he was brought before the People's Court, that is to say, the Senate in Munich, for further trial.
Q You say he committed suicide after a preliminary hearing. Where was this preliminary hearing held, before a court? If so, what court?
A Mr. von Praun held a high position in the Angelican Church in Ansbach. He observed from there an air raid on Nurnberg. While so doing, he stated, in the presence of some female persons, that it was about time for the government to end the war if one were not in a position to prevent such catastrophes for the civilian population.
The female listeners denounced Mr. von Pruan to the authorities, and it came to a preliminary hearing before the Special Court in Nurnberg, where Oeschey was the presiding judge.
Q Did you attend this preliminary hearing?
A No.
Q Did any one of the officials who attended it tell you about it?
A I was told about it by the Defense Counsel, Dr. Meyer.
Q What did Dr. Meyer tell you?
A The Defense Counsel appeared to be very indignant and outraged by the accusations which were made by Oeschey to Mr. von Praun.
Q How long was it after this hearing, presided over by Oeschey, when von Praun committed suicide?
A That voluntary exit from life occurred very soon after the Special Court had decided that Mr. von Praun would have to be transferred to the People's Court. On account of the undermining of the defensive spirit, his statement was a definitely defeatist one, and to that extent the People's Court was definitely competent for the case.
Q. In 1945 pursuant to a statute signed by Minister Thierack and published in the Reichsgesetzblatt, court martials or Standgerichte were established. We also know that such a court martial was established here in Nuremberg, and we also know that Oeschey was presiding judge of that court martial.
A. Yes.
Q. Now do you remember in 1945 a case before that court martial involving a criminal proceeding against one Count Mongelas?
A. Yes, I remember that.
Q. Who was the actual presiding judge, do you know, in that case against Mongelas?
A. Oeschey.
Q. Well, how was that? I understand that Oeschy was drafted into the army in early 1945, isn't that true?
A. Yes.
Q. Well, then, how did it happen that just about the same time, that is, in early 1945, Qeschy was presiding judge in the Mongelas case?
A. The decree concerning the establishment of courts martials permitted the establishment of a court martial for a certain district, a certain area only if the Gau was in immediate danger. When that time came and when the deputy Gauleiter determined that that time had come, according to the decree, Gauleiter Hoe, according to the decree established a courtmartial and achieved with the armed forces in Wuerzburg the transfer of Mr. Oeschy, whom he wanted to have as presiding judge under all circumstances for that court martial.
Q. You say that the Gauleiter had Oeschy transferred from the army to preside over this special court? The Gauleiter did that?
A. The Gauleiter was competent for court martial in his position as Reich Defense Commissar, as so-called Gerichtsherr.
MR. WOOLEYHAN: May the Court please, the Prosecution has concluded with its direct examination of this witness.
JUDGE BRAND: I should like to ask the witness one or two questions before you conclude. Mr. Witness, you referred several times to the decree of December 4, 1941, against Poles and Jews. You identify the decree, do you not?
THE WITNESS: Yes.
JUDGE BRAND: As I recall, you also said that the enactment of that decree was a triumph for Rothaug.
THE WITNESS: Yes.
JUDGE BRAND: Now, briefly and without giving any illustrations, could you tell us to what extent prosecutions were held before the People's Court, to your knowledge, upon indictments which were brought under and pursuant to that decree against Poles and Jews?
THE WITNESS: Against Jews we had no such indictment, but very frequently against Poles.
JUDGE BRAND: Under that decree?
THE WITNESS: On the basis of that decree.
JUDGE BRAND: Could you give us any idea as to what you mean by very frequently? What proportion of your cases?
THE WITNESS: There were, according to my recollection, not too roughly estimated, but quite accurately, about 100 cases.
MR. WOOLEYHAN: May the Court please, for purposes of the record, may we ask if Your Honor in putting your question to the witness meant the People's Court or the Special Court? I believe it is the Special Court.
JUDGE BRAND: I meant the Special Court, yes. You understood it that way?
MR. LA FOLLETTE: If Your Honors please, I only want to ask a question about procedure. I understood that last week the Court's ruling was that where a defendant was absent, that if he chose, the cross examination would be delayed until defense counsel for that defendant had a chance to study the transcript. It just occurs to me that it might be a more orderly procedure if we had all of the cross examination of the witness at the sane time possibly rather than some of it now by counsel for defendants who are present, as Dr. Schubert, representing the defendant Oeschey.
I don't know, but I am suggesting to the Court that it strikes me that it might be better to have all the cross examination at one time. I want Dr. Schubert to have a chance to be heard if he thinks otherwise, or if the Court thinks otherwise. I simply wanted to know how we would proceed.
DR. SCHUBERT (Counsel for Defendant Oeschey): May it please the Tribunal, concerning the suggestion of the Prosecution I have no objection. I am also ready to hold my cross examination until such time as the defense counsel for the defendant Rothaug, according to the ruling of the Tribunal, will be able to start with his cross examination. I am also prepared, if necessary, to do so today.
DR. KOESSL: May it please the Tribunal -
THE PRESIDENT: It is the feeling of the Tribunal that we should hear all the cross examination that can be made under the ruling we have heretofore pronounced at this time. I am wondering whether the counsel for Mr. Rothaug has any wishes in this matter concerning the cross examination, if any, pertaining to the testimony against Rothaug?
DR. KOESSL: Mr. President, I have only the one wish, to inform the defendant Rothaug about the statements of the witness Ferber. On the other hand, I also wish that the cross examination take place before Easter, and I believe there should not be any further difficulties if I be given an opportunity by tonight to read the statements made by the witness from the record, and then at the latest the day after tomorrow I could make my cross examination.
JUDGE BRAND: May I ask you, Doctor, do you have any objection to Dr. Schubert conducting his cross examination now?
DR. KOESSL: Not at all, sir.
MR. LaFOLLETTE: The Prosecution has no objection to any ruling that the Court wants to make.
I simply wanted to call this matter up so we could have an understanding.
THE PRESIDENT: Before Dr. Schubert proceeds with his cross examination I have one question I would like to ask the witness. Witness, you have already told to one of the members of this Tribunal that there were probably 100 prosecutions of Poles under that statute referred to. I should like to know whether there were other prosecutions of other nationals outside of Germany, I mean, other than Poles, under that same court.
THE WITNESS: There were also cases or trials against foreign civilian workers from western states, western countries, that is to say, Dutchmen, Belgians, Frenchmen, people from Luxembourg.
THE PRESIDENT: Can you give me some estimate as to the number of such cases, other than Poles?
THE WITNESS: The proceedings against civilian workers from western countries were fewer, considerably fewer. Primarily I should say that among these 100 cases on the basis of this decree against Poles there were not only death penalties, death sentences, but, too, a small proportion of just the penitentiary or labor camps. The verdicts against civilian workers of the western states were in a similar proportion. I would say that was about one-half of that figure.
THE PRESIDENT: And of that one-half as many Poles as you have stated, what proportion of the prosecutions of nationals of western countries resulted in death sentences?