That is not a part of Ordinance 7, that is a rule adopted by the various Tribunals. Now you are moving in behalf of the defense, to change what is now a uniform rule. You are asking this court to do it for this court. We have not ruled on that, and the provision in the amendment to Ordnance 7 merely authorizes the request for a joint session of the judges to review an interlocutory judgment, which we have not made. Therefore, the motion is premature insofar as it relates to the joint session. It is not premature insofar as counsel asks this Tribunal to amend a rule.
MR. LA FOLLETTE: That is my understanding, but I also believe, I understand, that the Presiding Justice, that in some way the Bench has not received what I have received, which is a written motion of defense counsel. It has been submitted to me within time. Now, whether the Bench has it or not, I don't know.
MR. LA FOLLETTE: I am advised by Dr. Schilf that it was submitted for general distribution and should be with the Tribunal.
THE PRESIDENT: We will recess at this time, but when we resume our session tomorrow morning we would like to then hear from counsel as to whether or not there should be an amendment of Rule 23, applying to this court only, (The Tribunal recessed until 0930 hours, 15 April 1947.)
OFFICIAL TRANSCRIPT OF THE AMERICAN MILITARY TRIBUNAL IN THE MATTER OF THE UNITED STATES OF AMERICA AGAINST JOSEPH ALSTOETTER, ET ALL DEFENDANTS, SITTING AT NURNBERG, GERMANY, ON 15 APRIL 1947, 0930, JUSTICE CARRINGTON T.
MARSHALL, PRESIDING.
THE MARSHAL: 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. There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you please ascertain whether the defendants are in court?
THE MARSHAL: May it please your honors, all the defendants are present in court with the exception of defendants Engert and Rothaug, who are absent due to illness.
THE PRESIDENT: They have been excused, and proper notation will be made. The ruling will be made upon the motion that has been filed, at the resumption after the morning recess, and the Tribunal does not desire arguments.
MR. LAFOLLETTE: Your Honor, at first -- of course -we have not been advised of that -- we had laid down plans on the theory that the Tribunal would want argument -- I am compelled to ask the Tribunal to give as four or five minutes until we can get something into the courtroom at this time. I am sorry; we had not anticipated -
THE PRESIDENT: If you desire to give anything additional to the court it may be done before the morning recess, and it may be considered at the recess, and it, the ruling, will be announced after the recess.
MR. LAFOLLETTE: On the motion, I have no more -- but we will ask your indulgence for a few minutes while we get some documents in here to present, because we had not anticipated this action by the court.
Your Honors, please, I do feel under some obligation to make a short statement for the record, out of fairness: when this motion originally arose I said I thought it had been held up by Mr. Nissley in the Secretary General's office; I checked with him and find that the original statement of mine was erroneous and I want to absolve him from any inference of blame.
MR. KING: We have circulated a document which is No. NG-199A. It is a part of the Document NG-199 which appears in the Document Book 1B.
THE PRESIDENT: Has that been introduced in evidence?
MR. KING: It has not been introduced in evidence. That appears on page 123 of Book 1B. And the reason it wasn't introduced in evidence, your Honor, is because the part which I circulated was, until recently, not processed and ready for distribution.
THE PRESIDENT: I have that document but I didn't bring it with me.
MR. KING: Document 1B in the---
THE PRESIDENT. I have 1B -- but you refer -- on, 199 is in 1B.
MR. KING: Yes, in other words, your Honor, the Document which we have just circulated supplements the document which in now in Book 1B. Before I proceed to read a few paragraphs from that document I might recall -- it has been some time ago -- that we, on time, attempted to introduce this Document NG-199. There is some discussion of the objections raised by counsel to be found in the transcript at pages 282-284, in English. Briefly, the objection raised by defense counsel was to the first page, page 123, Indictment Book 1B. The material on that page, in part, is a decree which the prosecution asserted, at the time it was first sought to be introduced, -- was a decree actually published in the Reichsgesetzblatt.
We feel now, upon investigation, and quite in line with objections raised by defense counsel, that may not have been published, that it may have been merely a draft, and so in all fairness to defense counsel we would not offer, we will not offer, in evidence the first three pages of the document appearing in Book 1B, on pages 123, 124, and 125. The rest of that document, beginning on page 126, and continuing through 133, we will off in evidence, together with the supplementing 199A, which the members of the Tribunal have before them. I may also say that this supplement has been circulated according to the rules of Defense Information Center. We have distributed additional copies mere for the convenience of those who may not have brought their delivered copies with them today. May I ask the court and defense counsel to turn to page 126.
THE PRESIDENT: We at this time -- by omitting the first three pages, does that remove the objection made by defense counsel?
MR. KING: I am sure it does, your Honor, because the objection went only to the decree which actually is only on the first page of this document. However, the following two pages--
THE PRESIDENT: One moment please. It seems the switch was off, so I want to make inquires so that defense counsel could answer. My inquiry is whether, by eliminating the first three pages of Document 199, does that remove the objection which defense counsel had made to the document originally?
MR. KING: My answer is that I believe that it does, because their objection went only to the decree, which is only a part of this document. We are admitting, for purposes of this document, that decree may not have been published, and if it was not published we do not want to introduce it, of course, as an official decree.
THE PRESIDENT: We hear no objection, therefore, I assume you are correct.
MR. KING: May I ask the Court and Defense Counsel to turn to page 126 in the English text. I am sorry I do not have the page number in the German text.
JUDGE BRAND: May I ask you whether the original 199 and 199-B are offered as a single exhibit?
MR. KING: That is correct.
On page 126 of the English document book is a letter dated Berlin, 20 October 1942. There are two mistakes in that letter in the English version which I wish to call to the attention of the Court at this time. In the address to the Reichminister of Justice, it says in the English text: that should be shown in the original, to the Reichsminister and Chief of the Reichs Chancery.
Also in that letter, the first three paragraphs on page 126, on the original, is initialed by Thierack, and Thierack's initials have been left off of the copy in the English text. The initials should come right opposite the notation of page 6 of the original on the bottom of page 126 in the English text.
The letter reads:
"The task assigned to me by the Fuehrer of establishing a National Socialistic Justice requires that I be not hampered by present legal dispositions in the enforcement of measures affecting personnel. On the one hand it may involve officials of my ministry who on grounds of their personality are not suited for the new tasks and will need to be transferred to other more suitable positions. On the other hand the possibility may arise that directors of offices and leading officials of the higher grades of service which do not fit into the new set-up, may have to be used elsewhere or be retired. Finally it may become necessary, in some particular cases to transfer or to retire such judges as cannot be kept on in their present positions.
The authority given me by the Fuehrer on 20 August '42 provides the legal basis for the execution of such individual measures.
I therefore ask for your approval, so that in urgent cases judges and officials of the Reich Administration of Justice may by me be transferred to other positions with the same rate of salary, or to positions with a scheduled lower salary, but allowing them to keep the titles and the salary rate of their former positions, or may by me be retired".
That is all of that particular letter we wish to read.
May we ask the Court now to turn to page 128 in the english text. That is a letter over the signature of Bormann. And, if is dated, Fuehrer's Headquarters, 3 March 1942. It is addressed to the Reich Minister of Justice. The body of the letter reads as follows:
"The desired approval is given herewith in general terms. In so far as Reich Minister Dr. Lammers proposes to reserve to the Fuehrer the pensioning of a Justice official to the same extent as before, I approve this change.
"Heil Hitler!"
Signed, "E. Bormann."
May we turn not .....
(Defense Counsel confers with Mr. King.)
There seems to be some difficulty with Defense Counsel. I think we should get it on the record. May I ask the spokesman for the Defense Counsel to tell us what it is that seems to be missing from the document which we are in the process of presenting.
(No response from the Defense Counsel)
I understood a few moments ago that part of their document was missing; is that not the case?
DR. PETERSDORF: May it please the Tribunal, may I try to clarify this problem. The Defense Counsel received the document NG 199; that is the Decree which the Prosecution has just mentioned, but the Defense Counsel also received NG 199-A. This is in addition to the decree which is a list of those judges who were submitted for retirement, and that is all. The letters which have just been read by the Prosecution are not included either in the document book nor in the supplement.
MR. KING: The Defense Counsel is perfectly right. The letters which we have read apparently still do not appear in the German book. Naturally I think they will be handicapped unless those letters are before them, and I think it would be unwise to proceed to introduce these documents at this time. Since we have had some discussion however, of the documents which we do not propose to introduce, portions of which we do not propose to introduce, I think when we do want to introduce these documents, we will rectify again or try to rectify again, the deficiency in the German book, but when we get around to introducing them again I will not, at that time, go into an explanation of the decree. We will proceed to introduce the balance of the documents as we have attempted to do for the second time here this morning.
May I ask the Court to turn to document book 3-D.
THE PRESIDENT: What are your plans about putting an exhibit number on the documents at this time, and whether you wish to retain it or withdraw it?
MR. KING: It might be better, your Honor, if we give them an exhibit number at this time. It will be Exhibit No. 243; since we have gone a considerable stop in the direction of introducing it. I would suggest that we do indicate the exhibit.
THE PRESIDENT: All right.
JUDGE BRAND: Is it Exhibit 243?
MR. KING: Yes, 243.
We turn now to document book 3-D, and I will refer to the last entry in that book, which is document NG 459. It appears originally on page 115 in that document book. The text in the English was incomplete. We have, therefore circulated a complete copy of this document, and I believe it is now before the Tribunal.
THE PRESIDENT: You wish to substitute the complete document for the one in the book?
MR. KING: That is right. The original document as it appears in the book should be deleted and the one which has been handed to you this morning should be substituted for it.
May I ask the Court to turn to page 10 of the document as circulated. This is a case which appeared before -- it was heard before the Special Court for the District of the Court of Appeals, Nurnberg. I would like to read a portion of the verdict appearing on page 10:
"In the Name of the German People!
The special court for the district of the court of appeal Nurnberg at the district court of Nuernberg-Fuerth.
Finds in the criminal case against:
JANKOVIC Ljubinko, born on the 3.10.1918 in Belgrade, unmarried waiter in Belgrade and lately of Nuernberg, now remanded in custody pending trial on this charge: an offense has been committed under article 4 of the decree against Public Enemies.
In public session of the 26 January 1945, those present being:
The president: director of the district court : OESCHEY Assistant judges, counsellor at the Landgericht:
Dr. HOFFMANN The public prosecutor MARKL and as Registrar:
KRUEGEL In accordance with the law:
The accused stole linen and clothes from an airraid shelter partly under aggravating circumstances. He is condemned to death, as a Parasite of society."
MR. KING: And on the following page we continue reading the statement of the facts and the charges against the accused:
Reasons:
The defendant, a Jugoslav citizen grew up in his birth-place and attended the Elementary School there for four years and the Continuation School for three years. He then worked as cook and waiter in Jugoslavia, lastly in Belgrade. At the beginning of November 1944 he alleges that he had to flee from the Bolschevists with a collective transport into the Reich. In Vienna he left this transport arbitrarily, in order to wander around in the Reich.
Thus he came to Nuernberg on 3 November 1944.
Here the first thing he did was to go to the Criminal Police and submit on that very day a denunciation against unknown Serbin countryman, who, he alleges had stolen from him 2 chests in which there were supposed to have been clothing linen and articles of food. This denunciation was conjured up completely from thin air. It had no foundation whatsoever and was designed to enable him to procure purchasing-coupons for textile goods.
The defendant was directed as workman to the firm of Oesterlein where he assumed work on 4 November 1944 and was employed on the premises at Schanzaeckerstr. 52. There he soon noticed that articles of clothing belonging to Mrs. Person living in the same house were brought into the cellar of the building. He decided to acquire clothes and linen for himself by resorting to theft.
Accordingly, he went on 8 November 1944 into the part of the cellar belonging to Mrs. Person which he discovered to be unlocked and took the following articles:"
MR. KING: There follows a number of articles of clothing which we will not enumerate. May we turn to page 13, on the one circulated, beginning at the first full paragraph on that page:
"The defendant therefore, by the illegal removal of the articles listed has fulfilled the conditions of theft in the meaning of Sec. 242 Reich Penal Code as he intended to appropriate them illegally. With regard to the robbery of 11 November the theft was carried out under the more incriminating designation of the "breaking open of a receptable". The loosening of the hasps on the door of this part of the cellar must be considered as falling within this category. As the defendant was determined from the beginning to steal from this part of the cellar as often as possible, his action was based on a uniform foregone decision to repeat it, hence repeated. His conduct appears therefore as repeated, partly common, partly heavy theft according to art.
242, 243 section I par. 2 Penal Code. Particularly deserving of punishment however is the conduct of the defendant in consciously exploiting measures taken for defense against the danger of air-raids. The carrying out of the theft was facilitated by the fact that our countrymen are compelled to store the necessary requirements of clothing and linen in the cellar for protection against enemy action. This circumstance and also its further consequence ..... namely the small possibility of supervision caused by it. Although he denies it, these conditions were as well known to him as to any other resident in a country involved in war; for his former place residence, Belgrad, had to suffer air raids during the last years. The theft of air raid shelter necessities does in no way differ from looting and deserves equal punishment. According to sound national sentiment his offense is especially mean and revolting. It marks the offendor as a public enemy without regard to his general life. Therefore, the accused is guilty of a crime according to paragraph 2 of the decree against public enemies.
MR. KING: That was all of the verdict proper that we care to read. At this time may we turn to page 18 of the document? This is a letter dated Berlin, 21 February 1945; it's addressed to the Chief Public Prosecutor at Nurnberg:
"I enclose original and certified copy of the decree of the 21st Febr., 1945, regarding the criminal case vs.
Ljubinke JANKOVIC, sentenced to death by the Special Court at Nuernberg, on 26th Jan.
, 1945 with the request that the necessary steps be taken with all expediency.
Please refrain from an announcement in the press or public poste.
The General Public Prosecutor has received a copy.
By order:
(signed) METTGENBERG"
MR. KING: On page 19 of the document as circulated is a short statement signed by the defendant Klemm which authorizes the execution of the accused to proceed. That's all of this document which we care to read into the record at this time. We therefore offer as Exhibit 244, the Document NG-459.
THE PRESIDENT: It will be received in evidence.
MR. KING: I regret that defense counsel has not had opportunity to examine the original.
JUDGE BRAND: A question, please. The index refers to the case of a Yugoslav citizen sentenced to death without being permitted a defense counsel. Is there anything in the exhibit that shows that fact?
MR. KING: I believe there is, Your Honor. May I have just a moment to recheck that? Your Honor, it does appear that the clemency plea which appears on page 17 on the document as circulated was -
THE PRESIDENT: On what page?
MR. KING: On page 17 of the Document as circulated makes no reference to defense counsel, and was signed by the accused himself.
THE PRESIDENT: Turn to page 5, Article 4 on that page. How do you explain that?
MR. KING: Do you mean "all documents to the Chief Public prosecutor for his information?"
THE PRESIDENT: No, Article 4 on page 5 of that document.
MR. KING: Yes, the attorney at law is appointed as defense counsel of the accused, then there appears under that in parenthesis "deleted".
Yes. The statement to which you refer, Your Honor, Roman four on page 5, appears on the original as a printed form, and in translating it they did translate it; then, to show that a line had been crossed through it, the translator merely indicated "deleted". On the original that printed form has a line through it, which indicates that it did not apply in that case. On page 9 of the document as circulated there is no reference at all to defense counsel. In each case it is the defendant who proposed a more lenient penalty. "The defendant had the last word", and so on.
THE PRESIDENT: Defense counsel have had an opportunity to examine the document?
MR KING: Yes, they have.
THE PRESIDENT: We hear no objection, and the document is therefore admitted in evidence.
MR. KING: May we turn at this time to document book III-F?
THE PRESIDENT: No announcement was made of the exhibit number, but I have attached number 244.
MR. KING: Number 244 is correct.
(A document was distributed)
THE PRESIDENT: This document number appears in the book. Will this be a substitute?
MR. KING: The document, as it appears in the book on page 54, was never previously circulated. The page in the book where the document should have appeared is a blank, and the copy which now has been circulated is the first official copy of this document which has been made available to the Court. It has been distributed, in accordance with the rule, to the Defense Information Center.
The document NG-736, which appears as the last item in the index in document book III-F, will be, when formally offered in evidence, document NG-245.
I would like to read at this time a few paragraphs and comment briefly on this case. It is the case of two defendants by the name of Wendel and Mayerhofer, who were first tried before the District Court, Nurnberg-Fuerth.
It is a portion -
THE PRESIDENT: (Interposing): One moment, please. The document bears the number 736. What is your statement about 245? You mean that is exhibit number 245?
MR. KING: Exhibit number 245, yes.
We turn first to page 13 in the document as circulated. This is a part of the record of the case as it was first heard before the Special Court in Nurnberg on 6 May 1940. It will be noted from information on page 13 that the defendant Rothaug was the presiding judge.
I would like to read further from the record on page 16 of the document as circulated, beginning in the middle of the page:
"The attorney general moved that the defendant Wendel should be sentenced to three years hard labor for five crimes of violating the Decree against the Public Enemies, to one year and six months imprisonment for the crime of simple theft, to two years hard labor for the five attempted crimes of recidivistic theft under aggravating circumstances, and to two years and six months hard labor for the nine completed crimes. He also proposed that there should not be allowed any mitigating circumstances, that these individual sentences should be reduced to one total sentence of eight years hard labor, that the five months of detention on remand should be taken into account, that subsequent internment should be decreed, and that he should be deprived of his civic rights for a period of five years."
Then, reading further from the record on page 17, under the heading "sentence":
"Sentence was proclaimed.
"Wendel, Ludwig, born on 4 February 1906 at Schiffweiler-Saargebiet married, bargeman at Nurnberg, in detention on remand in this matter, is sentenced as a dangerous habitual criminal for five crimes according to paragraph 2 of the Decree against Public Enemies, each in connection with one crime of recidivistic theft under aggravating circumstances, nine crimes of recidivistic theft under aggravating circumstances, as well as for five crimes of attempted recidivistic theft under aggravating circumstances, and one crime of recidivistic theft, to a total of eight years penal servitude and to bear the costs."
Now to the sentence itself before the Special Court of Nurnberg, in which the defendant Rothaug presided. We turn to page 32 of the document as circulated, beginning at the bottom of the page, the last paragraph on that page:
"Taking into account these previous offenses when considering the crimes which are at present before the court for judgment"-
Do I understand that the translators do not find that in the German book?
INTERPRETER: No.
MR. KING: It is, then, apparent to the translators that this particular paragraph does not appear in the German copy which you have in the document book? Is that correct? That being the case, we will withdraw-- Do you have the place now?
INTERPRETER: Yes.
MR. KING: "Taking into account these previous offences when considering the crimes, which are at present time before the court for judgment, and the character of WENDEL, it is apparent that he is a dangerous habitual criminal (paragraph 20 a Part II, I Penal Code). Although he had only completed his prison sentences, amounting altogether to three years, on 4 May 1939, although his earnings were adequate and although his wife, too, was earning, he has how again committed thefts. The defendant did not act out of need but from an inner urge to thieving, especially to garden bungalow burglaries. Instead of working, he, in his passion to lead an easy life, loafed about for two months and added one theft to the other. His constant relapse into criminal activities, the accumulation of his offences, the tenacious and systematic manner with which WENDEL pursued his criminal aims, show clearly that in future, too, considerable offenses may be expected from him.
"The defendant stole especially from his poorer compatriots on whom he very often inflicted considerable damage. Especially noteworthy are the thefts to the detriment of Mr. and Mrs. KERN, from whom the defendant stole, among other things, mearly all their clothes and linen. By committing these crimes the defendant also caused considerable disquietude among the population of Nuernberg. These circumstances spoke to a considerable extent against the defendant when the punishment was awarded. As far as crimes against paragraph 2 of the Decree against Public Enemies are concerned, it had to be taken into account that the defendant did not take advantage of the black-out in such a definite and typical manner as is usually the case with burglaries of dwelling houses and business buildings. Nor was the Court able to establish that the black-out measures served as incitement to the defendant to commit the thefts in question, because immediately after having stolen from MUELLER, the defendant committed a considerable number of burglaries in garden bungalows without taking advantage of the black-out. In these cases the Court has therefore denied the existence of a specially serious case in the sense of paragraph 2 of the Decree against Public Enemies.
"Taking into consideration these aspects, the Court found the following punishment adequate:
for five crimes against paragraph 2 of the Decree against Public Enemies, three years penal servitude each. For the 14 crimes of recidivist theft in aggravating circumstances to 2 years and six months of penal servitude. Extenuating circumstances in these cases being denied, for the five crimes of attempted recidivist theft in aggravating circumstances, (according to paragraphs 43, 44 of the Penal Code), to two years of penal servitude.
There is a handwritten note which reads: "Extenuating circumstances were likewise denied for the crimes of recidivist theft(A1), to one year and six months of penal servitude."
We turn now to another portion of this document. By way of explanation it should be stated that following this opinion from which I have just read, a plea of nullity was entered from the Reich Supreme Court in Leipzig. That plea of nullity was dated 26 -- I mean the opinion concerning the plea of nullity was dated 26 November 1940 -no, I am sorry. That is the incorrect date. It was dated 21 January 1941.
JUDGE BLAIR: We don't get your page numbers.
MR. KING: The page from which I am just reading now is Page 37 of the English text of the document I have just circulated. The date of that opinion, as I said, was 21 January 1941, and from that opinion the Reich Supreme Court in connection with the plea of nullity I would like to read a few lines. Beginning at the bottom of page 37 of the English copy as translated, under the heading "Reasons".
"The prosecution at the Special Court - going beyond the first enumeration page 132, 132R of the indictment - accused the defendant (page 135 R. 136 of the indictment) to have committed one recidivist theft, as well as 19 crimes according to paragraph 2 of the Decree against Public Enemies, which in 14 cases were each in connection with one completed recidivist theft under aggravating conditions and in each of 5 cases with one attempted recidivist theft under aggravating conditions and finally to have committed one crime according to paragraph 1 part 2 of the Decree against criminals employing violence, legally coinciding with one robbery.
The Special Court has on 6 May 1940 sentenced the defendant, as a dangerous habitual criminal for one ordinary recidivist theft, as well as for 9 crimes according to paragraph 2 of the Decree against Public Enemies, each in connection with one recidivist theft in aggravating conditions and furthermore for nine completed and five attempted crimes of recidivist theft in aggravating conditions. The crime against paragraph 1 of the Decree against Violent Criminals with which the defendant was also charged has not been mentioned in the decisive part of the sentence passed by the Special Court and has amongst the reasons for the sentence been stated as not admitting of proof. In its decision as to the sentence, the Special Court has denied that this constituted a particularly serious case of a crime against the black-out regulations in the sense of paragraph 2 of the Law against Public Enemies. For the 5 crimes against paragraph 2 of the Decree against Public Enemies he was meted out an individual sentence of 3 years penal servitude and for his other crimes he was given other terms of penal servitude. On this basis the defendant was sentenced to a total sentence of 8 years penal servitude as well as to loss of all civic rights for the duration of 5 years, and to subsequent internment.
The Chief Public Prosecutor at the Supreme Court presented to the disadvantage of tho defendant a petition for nullification of this sentence, which originally contained the restriction that only the sentence in the 5 cases of crimes against paragraph 2 of the Decree against Public Enemies which had been approved by the Special Court, should be contested because the Court had denied that they constituted particularly serious cases. At the trial by the Supreme Court the Chief Public Prosecutor increased the scope of his petition for nul lification to the extent that with the exception of the individual sentence for ordinary recidivist theft the sentence of the Special Court should be rescinded in its entirety and that the case should within these limits be returned to the Special Court.
The petition for nullification is valid.
1.) In the 14 cases in which, contrary to the indictment, although in keeping with the proposal put forward by the Prosecution during the trial, the Special Court did not sentence the defendant for blackoutcrimes according to paragraph 2 of the Decree against Public Enemies but only for partly completed and partly attempted recidivist thefts in aggravating circumstances, this decision (investigation files page 18) was based on the following argument: In these cases, the gardens of the locked bungalows from which the defendant stole or attempted to steal various articles had partly also during peace-time been without light at night or were situated in such a manner that the defendant managed to reach the scenes of this crimes by rear-entrances which also in peace-time used to lie in the dark. Therefore there could not be brought sufficient proof against the defendant, that he had been consciously taking advantage of the black-out, nor could in any of the cases, even in those in which it was proved that he did take advantage of the blackout, the defendant's statement that he had never left the allotment colonies before dawn, be refuted; therefore, it could not be proved that he had taken advantage of the black-out when he left the scenes of the crimes with his booty. The statements of the Special Court itself, however, are inconsistent with this explanation. For particularly in regard to the most successful theft of the defendant, - to the detriment of KERN, it has been stated that he slept in the looted bungalow, but also that he removed his booty with a hand-cart shortly after 5 o'clock in the morning, that is, at a time when, considering that the date of the crimes was 11 November 1939, it still must have been completely dark and the black-out must still have been on.