Could: III
Q Witness, you said that the removal of the Streicher pictures was hold against you?
A That was tho final point; that was one of tho last points among tho accusation which was brought up by Holz personally in a very sharp tone. I was accused that although I should know that Streicher was not really removed from office, but only sent on leave, that in spite of that knowledge I removed tho Streicher picture, whereupon, I said that I had the Streicher picture removed after the chief of the various office in the Gauoffice had been informed by an official of the Party that Streicher on account of a series of deliquencies had been removed from his office. The other theory was not known to me.
Q Witness, is it true that you were accused at that time not of the actual fact of removing tho Streicher pictures, but that you removed tho Streicher picture at once after Streicher was forced to leave, although a short time before that you had instituted the so called "Streicher Cell" in the jail, which was tho memorial cell in which Streicher had been committed during tho so called fighting day?
A Yes, I remember that very clearly. That was in the year of 1936, in February 1936, that then the chief of the legal office for civil servants approached me with a suggestion that the cell in which Streicher had been in prison should be closed and dedicated to Streicher. I told tho Gauleiter Popp that this question as to victor to decide a cell similar to tho Hitler cell at Landsberg an additional cell should be dedicated for his general memory, whether that was of such groat importance was not within my competency, and that I would have to ask tho Reich Ministry of Justice. That was tho result of the first conference with Amtsleiter Popp. Then reported to Reich Ministry of Justice, and asked for instructions as to whether there should be this peculiar request and it should be granted, and a few days later an adjutant, I believe it was Ministerial Counsellor Mielke called me on the telephone and told me that the matter was taken up by unter-secretary Friesler, who wanted, to contact Minister Hess, and for the time being I should not do anything about it.
I told Popp, whom I knew very well, "Well, I hope the whole matter would be buried in that way," because it was tho urgent desire of Popp to have on that occasion a Streicher birthday party, which occurred around the middle of February, and the whole matter should be produced. I did not hoar anything further about it, and was satisfied with that. Two days before tho birthday in tho evening after eight o'clock I received a telephone call in my apartment from the Ministerial Director Crohne that I should ----
MR. WOOLEYHAN: One moment, please. May it please the Court, this matter now under discussion was not raised in the direct examination but stems from an affidavit given by the witness. That affidavit states the witness' question with Streicher only insofar as the witness was criticized for removing a picture of Streicher. Any questions subsequent to that and current answers seem clearly irrelevant and outside the scope of either the affidavit or the direct examination.
THE PRESIDENT: Objection overruled.
BY DR. SCHUBERT:
Q. Will you continue, please?
A. I received shortly before the birthday of Streicher the information from Ministerial Director Crohne that the Minister has approved of the plan and desired that the suggestion should be carried out. The Ministerial Director Crohne instructed me as to how I should take care of the matter in detail--I was then a purely administrative official--and told me that above the door I should place a sign with the name of the Gauleiter Streicher and that I should have the cell decorated. I was quite unhappy about it that the matter should be carried out now, and I instructed the chief of the prison to take the necessary steps. A sign was affixed and the cell was cleaned, and if I am not mistaken, the personnel records of Streicher were put on the table of that cell.
Q. Witness, did you make a speech when that cell was initiated?
A. Yes. I can come to that if you want me to. Then I sent out invitations. I left it to Popp to send out invitations of guests to that ceremony. He invited only the immediate staff of the Gauleiter. That very small cell was quite crowded, and for the opening of the ceremony, I addressed a few words to those present, such as it was my duty as chief of that office, and I immediately gave the floor to Gauleiter Streicher, thereby avoided or prevented a speech which Gauleiter Popp was about to make and which would have carried far beyond the limits. Then Streicher made some remarks about his experiences which were quite out of taste-his experiences in that cell.
I don't think I have to go into detail. And that so-called ceremony ended with a visit of the entire prison. The shole matter was one of the most disagreeable jobs that I ever had to do, but it was my duty as an official to carry out the instructions of the Ministry.
Q. When was that?
A. That was in February 1936.
THE PRESIDENT: This examination, I think, has gone as far as the rules are entitled to carry us. I am referring to that particular point, of course. I don't mean to limit your cross examination at all.
BY DR. SCHUBERT:
Q. I want to finish, myself.
Witness, you said today, concerning the nullification plea, that the defense counsel could suggest to the Reich Ministry of Justice that a nullification plea should be made that, if I remember correctly, could approach the chief prosecutor himself.
A. I believe he could; yes.
Q. Is it known to you, witness, to whom the defense counsel approached in practice, the ministry of Justice or the Chief Prosecutor?
A. That I could not tell.
Q. Were you president of a civil senate or a penal senate?
A. I was president of a penal senate which had nothing to do with political cases.
Q. Witness, you explained this morning the following: if the Reich Supreme Court decided on the basis of a nullity plea and returned the case to a special court that then there was no order and no directive as to what the final decision should be. But wasn't it so that the special court to which the case was returned was bound by the legal opinion of the Reich Supreme Court?
A. I am surprised, I have mentioned before, that any German lawyer could be of that opinion, because a directive was not given by the Reich Supreme Court as to how the special court had to decide.
It only pointed out the legal points of view which in a new trial had to be taken into account, and the consideration of which was not apparent in the first trial.
Q. May it please the Tribunal, in order to clarify that matter, may I be permitted to read to the witness paragraph 36 of the so-called "Competency Regulation" of the 21 February 1940? May I be permitted to show it to him?
(Witness is offered the book)
A. (Reading) "Bound to the legal opinion on which the Reich Supreme Court based the revision." Very rightly so. And the special court was bound to take these legal points into account. That is quite clear. The Special Court, however--and I have seen that frequently--was definitely in a position to consider the points which the Reich Supreme Court mentioned, and still at the same time come to the same result as in the first trial. And it also happened that it maintained its brief sentence.
Q. Witness, we should like to clarify the matter now. You have just shown you surprise that a lawyer can be of the opinion which I have just presented to you as text of the law. You will have to grant me that when a case was returned to the special court, that special court was bound by the legal decision of the Reich Supreme Court. That is correct, isn't it?
A. Certainly, counsel, but it was not bound to decide in any particular way. That I did not say. But that is the way I understood you question.
Q. That is a misunderstanding.
Now I come to the case of Therese Mueller. If I understood you correctly, you saw the files of that case on the occasion of your interrogation?
A. Yes.
Q. Is it correct that the Reich Supreme Court did not consider the factor that the mother was informed about the life of her s on sufficiently relevant to consider it a case of extenuating circumstances?
A. Yes.
Q. Is it furthermore correct that the first verdict taking extenuating circumstances into account based that judgment only on that fact?
A. The first judgment did not deal with that question in its opinion. It only mentioned as extenuating circumstance, the worries of the mother for the life of her son, but it did not specify why extenuating circumstances were apparent in the opinion of the Tribunal, and in a subsidiary clause, it mentioned that this was quite a severe case. That is a contradiction which gave cause to the Reich Supreme Court to interfere in order to clarify that contradiction.
Q. But isn't it correct that the first sentence, as the only excuse for the mother, mentioned the fact that she was worried for the life of her son?
A. Yes, that is correct.
Q. There were no other extenuating reasons?
A. No, no other extenuating reasons.
Q. Witness, after you have confirmed this, and after you have read the legal provisions, will you please answer the following question: do you maintain your opinion that the special court had a possibility in the second trial at all to decide for a prison term instead of death sentence, under the conditions that further reasons for extenuating circumstances could not be produced in the second trial? bill you answer that question, yes or no?
A. The question can be answered.
MR. WOOLEYHAN: If the Court please, I must admit that I was following the question fairly closely, and I also did not understand it, much less be able to answer it yes or no. The Prosecution objects to the question and asks that it be re-stated.
THE PRESIDENT: Will you please restate your question?
BY DR. SCHUBERT:
Q My question was the following: After the witness discussed the first verdict, and the decision of the Reich Supreme Court, and after the witness has seen the law which was the basis of the second decision, could the witness still maintain his statement, stick to his statement, that is to say, that the Special Court in the second trial could possibly decide, could possibly hand down a sentence of a prison term; can he still stick to that if he takes into consideration that in the second trial new extenuating circumstances were produced and could be produced.
THE PRESIDENT: That question can be answered by yes or no, but if the witness desires to further explain his answer, he will be permitted to do so.
A I can very well answer the question, but not definitely with yes or no. I can state my answer to it if the Tribunal so desires; I am quite ready. Now, as before, I am of the opinion that the Special Court in this case could hand down a prison term, a prison sentence, in spite of the decision of the Reich Supreme Court; it was only necessary for it to explain why extenuating circumstances were apparent and it would be possible, it would have been possible to find reasons for that opinion, aside from the worries of the mother for her son. The evidence could certainly show other points. If I remember the case correctly that mother, Therese Mueller, caused her son to go to the Armed Forces after he had been disqualified in order to be qualified again. That, also, is a point which could be used in that connection. It may well have been a reason that such cases were very rare, to state that such cases were very rare, and that there was no reason to assume a severe case, but that could only show from the evidence, and it is very difficult afterwards to judge that.
I personally, now as before, am of the opinion that legally and actually it was possible to give reasons for extenuating circumstances, and to arrive at a prison sentence.
THE PRESIDENT: The time has come for cur usual noon recess; we will, therefore, recess until 1:30.
(A recess was taken until 1330 hours.)
THE MARSHAL: Persons in the court room will please find their seats.
The Tribunal is again in session.
DR. SCHUBERT: May it please the Tribunal may I continue?
THE PRESIDENT: Proceed BY DR. SCHUBERT:
Q Witness, you told us that as for extenuating circumstances it right have been considered that Therese Mueller had told her son to volunteer for the Wehrmacht in order to retain his qualifications as a soldier. Is it not true that this fact was taken into consideration during the first verdict of the Special Court in Nurnberg?
A I am not sure, but I do not know. I do not remember it. In any case the Reich Supreme Court did not refer to it.
Q Witness, other reasons which might lead to extenuating circumstances being granted are not known to you?
A In my view, that was a case for the presiding judge to see whether he could find extenuating circumstances. For the jurist there is only the possibility to find an assumption on which to base one reason, if one wants to do so.
Q You wish to express by that, that you can give reasons for any verdict?
A Naturally, as far as it cones within the framework of legal sentiment.
Q Witness, when you told us the reason for the sec end verdict, that represented your personal views; is that correct?
A The reason for the second verdict, no.
Q You criticized then and you said the reason might have been given in such and such a way?
A Yes.
Q Which is your personal view?
A Yes, it is.
Q You were not present at the second trial?
A No.
Q Therefore, you cannot say what was brought to light of day, in way of facts, at the second trial?
A No, I only know what was contained in the second verdict.
Q Thank you. Witness, you mentioned later on that among the cases which, regarding the sentencing by Oescheg, that among those cases which were reported to you was the case Ankenbrand. Ankenbrand had a Jewish witness sworn in. Can you remember whether you heard of that case for the first time from Oescheg or whether you heard of the case through a different source, and whether you, afterward, discussed the case with Oescheg. Do you remember?
A I do not remember, through him, I first heard about the facts, but believe that is the case, because while investigating the case there was a letter from Oescheg.
Q Can you tell me what were the legal provisions under which it was forbidden to make a Jewish witness swear to an oath?
A Such a legal provision was issued after the case with which we are concerned. It happened a few months later. At the time when this judge in Nurnberg made a Jewish witness swear to an oath, it was not prohibited.
Q Witness, you mentioned that you were transferred from Nurnberg to the Supreme Reich Court, as President of the Senate. Did that transfer offer any disadvantages for you?
A Yes, it involved considerable disadvantages. First of all, it meant that it denoted me in rank. I had been President of Oberlandesgericht, then I became President of the Senate; that is to say, I became head of a division. Also I suffered a disadvantage regarding my payment. There is evidence from the payment regulations. It was also a psychological disadvantage because I was treated as somebody who hand a little bad luck. And, it was also a great hardship to me that I had to leave my family; although as far as I could see it, there was no reason for this transfer.
Then, there were the fiscal disadvantages.
Q Witness, you mentioned the fiscal disadvantages. Can you tell me of what that consisted?
A It consisted in this: As President of the Senate I was in grade 6 and as Oberlandesgerichspresident, B-5. And, the expenses to which an Oberlandesgerichtspresident was entitled to amounted to 1200 Reichsmarks, and that was no longer obtainable.
Q As President of the Senate did you not get additional Reichsmarks?
A That did not make up for what was lost.
Q It did not?
A It might have compensated for the basic salary, but it did not make up for what I lost in expenses.
Q In other words, the only differences amounted to 1200 Reichsmarks?
A Yes,
Q And, what was the basic payment, may I ask you?
A The basic payment of the President of the Senate is 10,000 marks.
Q Witness, a final question: You now live in Nurnberg?
A Yes, I live in Nurnberg.
Q Your are under denatzifacationregulations in Nurnberg?
A Yes, I am.
Q Has you denatsification been discontinued because of the trial?
A I do not know.
Q You do not know?
A I do not know. The denazification proceedings are pending.
Q But, you have not been given a decision?
A No, I have not received the indictment yet.
DR. SCHUBERT: I have finished my cross examination.
BY DR. HAENSEL (for the defendant Joel):
Q I would like you to allow me to put to you a few questions concerning the Jewish question. Witness you spoke of the transfer of Jewish real estate to the Deputy Gauleiter Holz in 1938. That transfer you described as a special action by the campaign was not based on the law.
Did the campaign have its beginning outside of Nurnberg or was it restricted to Nurnberg.
A We had that in other Gau's the same proceedings were adopted. And, in particular, my Munich colleagues told me that in Munich similar proceedings were adopted. That the deterents were the same, that I do not know but the question which came up in the House of the Labor Front -- I had made an inquiry and found that many similar proceedings had been instituted and that action taken, caused no to go in Berlin and immediately raise the subject there.
Q I believe it will be necessary to explain t o the Tribunal in three words what functions the Bavarian Judge, at that tine, had in the matter of transferring real estate?
A It was not a case of symptoms or of a decision in the penal or civil law, but it was simply an administrative act.
MR. WOOLEYHAN: May it please the Court we object to this line of cross examination on the ground that it constitutes argument with the witness, and lecturing the witness on matters not solicited by questioning. It is more in the nature of an argument, and best to be submitted in the Defense's case in chief.
THE PRESIDENT: We will overrule the objection.
Q What were the functions of the judge to effect the transfer of real estate?
A Documents were at hand and they had to be investigated as whether formal conditions existed so as to effect the transfer into the real estate registry.
Q And, what were the formal conditions, as you call it?
A The agreement of, and other statements. But as it was generally known that an agreement had been brought about, it certainly was a difficult question of the consciousness of the judge to accept this agreement by the order.
Q You speak about the difficult position for the judge's conscious ness of the judge to accept this agreement by the order.
Q You speak about the difficult position for the judge's consciousness, we want to be quite clear whether agreements had been achieved by blackmail; was it not inferred by German law?
A That can be seen from the mere point that later on those transfers, and those entries into registry were made legal. As far as I know, later on there had been opposition to such an entry as those entered.
Q. You say what concerned the knowledge of the nullity of such agreement was generally known in Nurnberg. In that case the judge was not under an obligation to make such an entry?
A. That was the question. It was because of that I went to the Reich Ministry of Justice and asked them to interfere. It would have been possible for the Administration to give an order to stop this action from continuing.
Q. And why was that administrative order not issued?
A. Because I could not give it, as that exceeded my competence.
Q. Who had the official supervision over those judges?
A. It was the Landgerichtsrat.
Q. Was he your subordinate or was he your superior?
A. He was my subordinate.
Q. He was a subordinate. You, as President of a District Court -were you not able to instruct those lawyers to resist this legal procedure?
A. After the notaries had already deposited the document, I was told that the President of the District Court in Nurnberg -- concerning two notaries who had asked him for advice -- told them that as far as documentation of this transfer was concerned, he had nothing to say against it; later, after the Goering Investigation Commission had ascertained the facts, he would introduce disciplinary proceedings. Because he had given that advice -
Q (Interposing) Please don't go so fast because I believe these things are very important.
You say you went to Berlin in order to got a decision from the Ministry. You returned from Berlin, and did not got support there, as you said. What happened here next? Were the transfers effected or not?
A. I stated this morning that when I returned from Berlin and returned to my office, the Amtsgerichts head told me the Gauleiter had caused the real estate judges to take very quick action and that the transfer and the entry into the Estate Registry of the now owners had already been effected.
DR. HAENSEL: I want to inform the Court that this is not right; no transfers actually took place.
Q. Were notations made -
THE PRESIDENT (Interposing): One moment please.
MR. WOOLEYHAN: May the Court please, whether or not transfers took place is not a matter for counsel to say; it is a matter of proof clearly. It was not elicited by examination, and we move that it be stricken.
THE PRESIDENT: That will be stricken. That is an affirmative statement on the part of defense counsel. He may prove that by a witness, but he may not testify from the desk.
BY DR. HAENSEL:
Q. You said, witness, that at a later stage those transfers were canceled. Who caused that to be done?
A. As far as I am informed, it was done by the so-called Goering Investigation Commission. That was a commission which consisted of one deputy of the Reich Finance Ministry, from the Economics Ministry, and from the Secret Police Office, which was asked to investigate events in Nurnberg. That Commission, as I was informed, in its final report, is supposed to have informed Berlin; and on the basis of that final report from the Goering Commission the registry is supposed to have been corrected and subsequently the Police President of Nurnberg was charged with seeing to the orderly transfer of Jewish property into German hands.
Q. Do you know which of the defendants took part in that Commission?
A. I know that Joel was a member of that Commission for a definite purpose. He was to investigate to what extent justice officials had worked in this field or had neglected their duty.
Q. Do you know whether Joel saw to it that proceedings were instituted against notaries?
A. I thought proceedings against Hoesch were due to that. I believe it was also intended to institute proceedings against the notaries, but I do not remember any particulars.
Q. Is it known to you that Joel, in this connection, also instituted other proceedings against Streicher?
A. That is possible, but as far as Joel was the impulse in this I don't know, because the entire investigation on the part of the Goering Commission was kept secret and outsiders heard nothing about it.
Q. Do you remember the notorious case against Dr. Simon, who was sentenced to a penitentiary?
A. Yes, I remember it.
Q. Do you know whether there is any connection?
A. It is possible that tho entire conditions in the Gau Franconia were gone into and that that mild affair too was involved.
DR. HAENSEL: Thank you.
BY DR. SCHILF (Counsel for tho defendants Klemm and Mettgenberg):
Q. Witness, under direct examination, as well as under crossexamination, questions have been put to you concerning tho nullity plea. Now I would like to put some supplementary questions to you on that point.
You pointed to the difference according to which the nullity plea was made by the Oberreichsanwalt. On the other hand, tho Oberreichsanwalt could receive a suggestion. May I ask you this? As the Tribunal naturally, is not informed in the Bane way as you on the legal basis for the nullity plea, would you give us an explanation as to the two concepts?
A. According to the legal regulations, the Oberreichsanwalt at the Supreme Reich Court was competent for the submission of the nullity plea. That is to say, the chief of the public prosecution authorities at the Supreme Reich Court.
In what manner the Oberreichsanwalt at the Supreme Reich Court was informed about the various sentences, that varied from case to case. On the one hand, he could tell through the Reich Ministry of Justice as to what suggestion or in what direction to submit a nullity plea, but he could be informed immediately by the defense counsel as to what motion to submit such a nullity plea on.
Q. It is correct, therefore, I suppose, that the fact alone that only the Oberreichsanwalt formally could submit the nullity plea -- by that it cannot be said in any way that always, or generally, this went against the interests of the defendant?
A. That is correct, It was possible for the nullity plea to be raised on behalf of the defendant and that did happen, as I have already explained, although it happened loss frequently that it was done in his favor than that it was done against him.
Q. What makes you say that that happened -
May I ask you, witness, to allow for a little interval between my questions and your answer?
A. I know that from my own observations as presiding judge at a penal chamber.
Q. Now I must ask you to clarify the matter further. From what date -- I think you have mentioned it already, but I would like the date again -- from what date onwards were you president of the Senate?
Q. It was from the autumn of 1943.
Q. The experience which you gained, you gained in your Senate?
A. Yes, I gained it in my Penal Senate, which mainly dealt with Austrian penal cases.
Q. So as to inform, the Court, I would ask you, witness, to quite briefly explain how many criminal senates there were at the Supreme Reich Court at the time of your appointment.
A. When I began my service as President of the Penal Senate, there were five public penal senates, and by their side there was the Special Penal Senate. The number of ordinary penal senates, in the course of the year 1944, was reduced to four penal senates. That happened as a result of the shortage of judges which in itself was due to the war.
JUDGE BRAND: Within what territory was ho referring to? Within what territory were the five penal senates reduced to four, please?
BY DR. SCHILF:
Q. Witness, would you be kind enough to answer this question?
A. For every district of a district court of appeal, the cases with which one senate had dealt were now given to the other senates to deal with, so that the total number of cases could be dealt with by the four penal senates. In fact, the four penal senates now dealt with the cases which formerly had been dealt with by five penal senates.
Q. May I interrupt you, witness? There is something else which His Honor wants to know from you. What he wants to know is the territorial limitation, the whole sphere to which the jurisdiction of the Supreme Reich Court extended in penal cases.
A. First of all, they dealt with revisions, with appeals against verdicts, and they also dealt with the nullity pleas.
Q. You still haven't answered the question. When I used the word "territorial" -- and this, I think, is what His Honor wants to ask you -- I meant actually the geographical district.
A. Well, that varied. That varied. One Penal Senate dealt with the Bavarian Oberlandesgericht. I don't know whether that is what His Honor meant.
JUDGE BRAND: Witness, you said that five Penal Senates were reduced to four Penal Senates. To what geographical area were you referring? Do you mean that five Penal Senates in all of Germany were reduced to four, or that five Penal Senates in some geographical district of Germany were reduced to four? Just answer that briefly.
THE WITNESS: These five senates together dealt with all penal cases for the whole of Germany, and in the same way later the four Penal Senates dealt with all penal cases in Germany. Political cases, for example, were mostly dealt with by one special senate. Most of them were collected and were dealt with by one special senate. I believe that I have now expressed myself clearly.
THE PRESIDENT: I want to ask you a question, witness. A moment ago I think you used the expression "Austrian Penal Senate." Did you use that expression?
THE WITNESS: The Austrian Penal Senate was called the Austrian Senate because it dealt with the Austrian cases, but that senate which dealt with Austrian cases at the same time also dealt with cases arising in certain districts inside the German Reich. That Fifth Penal Senate which also dealt with Austrian cases -- in that, the members of that Senate were mainly Austrians who were acquainted particularly well with Austrian penal law.
THE PRESIDENT: Well then, none of these senates ever sat in Austria, is that true, in the country of Austria?
THE WITNESS: I do not know that the senate which dealt with the Austrian cases ever sat in Austria. Austria did not have its own senate at the Supreme Reich Court, but all these cases were dealt with at the Supreme Court in Leipzig. Cases -
THE PRESIDENT: That answers my question.
BY DR. SCHILF:
Q. Witness, you have spoken of your personal experience in the Fifth Senate, and you said that the nullity pleas from the Oberreichsanwalt in favor of the defendant were less frequent than went against the interest of the defendant. Do you moan from that to draw tho conclusion, that only the Oberreichsanwalt could submit tho nullity plea, that tho entire legal institution at the time of its institution interpreted the administration of penal law towards going against the interest of the defendant?
A. As far as I see, that was not the purpose of the institution.
Q. May I ask you to repeat your answer?
A. In my conviction, that was not the purpose of that institution.
Q. It is striking, and particularly striking for people who have not themselves witnessed tho German code of penal procedure, that it was of all people the Public Prosecutor, the Oberreichsanwalt, who dealt with the nullity plea and had to bring about the decision on such a plea. In order to explain the position of the Oberreichsanwalt to the Tribunal, I would ask you quite briefly to talk about the position of the Public Prosecutor, including the Oberreichsanwalt, under the German criminal code of procedure.