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.
This disproves the opinion of the Special Court that the defendant never took advantage of the blackout when removing the stolen articles from the scene of the crime. That inconsistency in the argumentation of the sentence reveals that the Special Court failed in the different cases to realize sufficiently by what roads and under what lighting conditions the defendant carried his loot to safety.
That failure invalidates the sentence of the Special Court in the sense of paragraph 34 of the Decree regarding competency from 21 February 1940. For a sentence is to be considered incorrect in that sense not only if it follows necessarily from the stated facts that the judge, owing to a mistake in the application of the law, has arrived at an altogether different conclusion from that which he should have arrived at if the law had been properly applied, but a sentence is already incorrect in the sense of paragraph 34 of the above-mentioned Decree if it is likely that the acting judge, owing to a judicial error was prevented from recognizing and describing the factual conditions, the consideration of which from a legally correct point of view might have lead to quite a different sentence.
The legislative senate has already ruled in that sense by its decision of 5 July 1940, Reich Court Decisions volume 74, Page 261, which in the meantime has been approved by other Criminal Senates of the Supreme Court."
This is all from the opinion of the Reich Supreme Court regarding the plea of nullification we wish to read.
We now turn to the second sentence of the Special Court of Nurnberg which heard the case following the opinion of the Reich Supreme Court. The second case was heard on 10 July 1941.
THE PRESIDENT: To what page are you now referring?
MR. KING: I am now looking at Page 45. However, the first portion I wish to read begins on Page 53 of the English Text. This is Case 18.
"In the night from 10 to 11 November the accused, coming again from Zeppelin-Strasse, climbed into the garden of Menz, and from there, by crossing several fences in between, got into the garden of the master upholsterer Kern. He forced open a window of the bungalow, climbed in and spent the night there. When leaving, his booty was so sulky, that he had to load it on to a hand-cart, which he found there too. It consisted of: 1 suit, 2 coats, 8 frocks, 1 blouse, 1 man's jacket, 1 training-suit, 2 pairs of shoes, 1 hat, 2 ladies costumes, 2 aprons, 1 pair of leather shorts, and a large quantity of bed-clothes, men's and ladies underwear and baby-linen, and also curtain and other materials. These articles had a total value of nearly 700 Reichsmarks.
"Kern's garden is situated at a distance of about 120 m. off Zeppelin-Strasse.
Thus, this garden itself is not clearly lit by the lamps of that street. The accused, however, made his way there through other gardens, by climbing into the allotments-colony from the street.
"Case 19. On 13 November at daybreak, the accused again climbed over the fence of this allotments-colony and once again came into Kern's garden. At a second bungalow, occupied by Mr. and Mrs. Kern, he pushed open a window and climbed in. He stole 1 men's wrist-watch, 1 pair of men's trousers, 1 jacket, 1 jacket, 1 pair of shoes and 1 camera to the total value of about 80 Reichsmarks.
"When the accused climbed out again over the fence, he was stopped by Otto Genetsch, a 14 year old elementary school boy, who recognized him as a burglar. An argument ensued, and finally Genetsch ran away."
I now turn to Page 54 and begin with the paragraph one third of the way down.
"In Case 1, the accused had a suitcase in his hand and 2 suits across his arm. It is unthinkable that, with his unkempt and ragged appearance, he should have dared to show himself in the city with such luggage in the early hours of the morning. In this case, he simply had to take advantage of the darkness.
"At the time of his first police-interrogation, shortly after the crime, when his memory was still fresh and he could not have thought of the far-reaching significance of his statements, he admitted without hesitation that the witness Stiegler confirmed, that he went away towards 5 o'clock in the morning. At that hour, during the beginning of October it was still quite dark. If today the accused makes a point of asserting that during the interrogation he quoted the hour of the day without thinking, because he had not known what time it had been, and that at any rate it had been light, then this cannot be accepted. The court is convinced that at that time he intentionally made his way to town while it was still dark.
"In Case 5, the accused took a motor cycle and tried to get it over the fence. He states himself that he ran it up to the fence during the night, but he asserts that he did not attempt to life it across until morning after daybreak.
His assertion cannot be believed.
"For one thing it would have been absurd to start getting the cycle away by night and leaving the rest for the next day. Then, in this case as in the previous one, it speaks against the accused that he could not have dared to leave the allotments-colony on a stolen motorcycle by day and to ride through the town.
"The Court is convinced that the accused tried to get the cycle away by night and that he therefore ran it up to the fence during the night.
"The accused also denies that in any one case he had thought of the fact that he was taking advantage of the black-out. For the twoabove-mentioned cases 1 and 5, the contrary is evident from his intention to get his booty away unhampered under cover of the blackedout streets.
"As to the rest, only with regard to the deeds in the colony off Conradtystrasse (except case 5 because of the motor-cycle) can he be believed that he did not count on the black-out to make things easier for him. The sources of light to be considered here, namely the lamps of the Siemens-Schuckert works and the shunting station, can be known only to a person who had been familiar with the locality already in peace-time. Lighting by street-lamps or neighboring buildings is lacking here. There was nothing here to make the accused think that in normal times this locality was lighted. The access from town to these gardens lot, however, through streets, which had been formerly lighted. But, in this respect, the accused was not favored by the black-out, because in conditions of a big city, the fact that anyone is going through lighted streets in the general direction of an out-of-town destination, does not involve any danger of detection."
THE PRESIDENT: Mr. King, will it take very much longer to complete this document?
MR. KING: Not more than 2 or 3 minutes, Your Honor.
"In all other cases the accused must have been conscious of the fact that near big streets the lack of any street-lighting offered an increased degree of safety to him."
That is all -- I am sorry, there is another paragraph which we wish to read. That is on Page 59 of the document circulated. It concerns punishment. "When awarding the punishment one should start from the premise that the accused is a dangerous habitual criminal."
That is under Roman Numeral V.
"The formal premises of paragraph 20, Part I of the Penal Code are given in the two sentences of the Criminal Divisional Court Saarbruecken of 29 October 1935, and of the Jurors Court in Saarbruecken of 9 January 1937.
"An overall assessment of his former and of his present offences together with his way of life, shows that he has an ineradicable urge to live in a slovenly manner and to procure his livelihood by serious crimes against the Law of Property. The specialist confirms this conviction of the Court, by pointing out that the defendant has inferior inherited traits because of the alcoholism of his father and that his social conditioning could therefore hardly be worse. His extremely criminal character must be taken into account especially when assessing the crimes committed during the black-out. The defendant developed from a reform schoolboy to a vagabond and then in uncontrol-able succession to a dangerous criminal. After having served his last extensive punishment he had every possibility at last to become a member of the community. His marriage and his training as a skilled worker could have given him a secure position in life. He himself destroyed both these possibilities after a very short time and without reasonable grounds. After that his true nature came all the more to the fore."
I turn to Page 60, now, at the top of the page, first paragraph.
"These circumstances aggravate the crimes committed against Paragraph 2 of the Decree against Public Enemies within the meaning of that decree.
The legal result is the death penalty. The attempted blackout crimes is to be put on the same level as the remaining completed crimes according to Paragraph 4 of the Decree against Criminals using Violence. Especially in this case, which corresponds exactly to the remaining crimes of the defendant, it would be out of place to allow the defendant to benefit by the fact that owing to external circumstances he was not able to reach his goal."
We omit the reading of the balance of the second opinion and note only that the presiding judge Rothaug signed the opinion.
We also ask the Court to turn to the first page of that document. I am sorry, I withdraw that statement. With the reading of this document as indicated, we offer it as Exhibit 245. This document NG-736.
THE PRESIDENT: The Document will be received in evidence, and we will recess at this time.
THE MARSHAL: The Tribunal is in recess for fifteen minutes.
(A short recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. LaFOLLETTE: If your Honors please, I would like to have Mr. Hark Schaeffer sworn as a witness; he is at present in the court room. Notice has been given. The witness will speak in the English language.
BY JUDGE BRAND: You take the English oath. Hold up your right hand and be sworn:
Do you solemnly swear that the testimony you shall give in this case shall be the truth, the whole truth and nothing but the truth, So Help you God?
MARK SCHAEFFER (Witness): I do.
THE PRESIDENT: Before proceeding to the examination of this witness, the Tribunal will rule upon the two motions that are pending. I read the ruling of the Court: The motion verbally made by Dr. Schilf for a joint session of the Military Tribunal should be denied. 1. Such motions not to be addressed to a single Tribunal, but to each of the Tribunals, Ordinance 7, Article 5.b.
2. Even if it had been addressed to each of the Tribunals, it would be still inadmissible because such motion is only authorized to review a ruling on a fundamental or important legal question, which ruling is in conflict with the prior ruling of another Tribunal; since all Tribunals have approved Rule 23, there is no inconsistent ruling to be reviewed by a joint session of the Tribunals. The motion for a joint session is, therefore, denied.
Next, we consider the motion addressed to this Tribunal by the Prosecution and Defense for a modification of Rule 23 by this Tribunal. The Prosecution would have us extend Rule 23; the Defense would have us limit or abolish it. If we had modified it, we would then be making a provision or ruling which would be inconsistent with prior rulings of the other Tribunals; and we would thus be giving to the losing side, which ever one it was, grounds which they did not have to move for a joint session of the judges.
We think that we should not modify the rules, either by complying with the motion of the Prosecution or by granting the motion of the Defense. The rules of court should be uniform among all Tribunals. We think Rule 23 should remain in effect, and counsel for both sides are directed to observe it. Counsel will note that the first paragraph of Rule 23 relative to interrogation procedure for persons in the Nurnberg Jail, who have been approved as witnesses for the Defense, applied to the entire interrogation "by either counsel for the Prosecution or the Defense." Thus, there is no discrimination since under the provisions of Ordinance 7, Section 5.b., the motion for a joint hearing is not applicable to this situation, and since the motion of either party for an amendment of the rules of this Tribunal, if granted, would result in conflicts between Tribunals, we have to rule that Rule 23 is not to be changed.
Motions of both sides for modification of Rule 23 is denied.
The joint Tribunals will no doubt, from time to time, consider matters relative to desired uniformity, but they cannot be forced to do so by an unauthorized employment of the provisions of Ordinance 7, Article 5.b.
It still remains to make provisions for a commissioner. May I inquire at this time whether Defense Counsel desire immediately or at an early date to conduct an examination? If so, we will appoint a commissioner immediately, and, in any event, probably during the day.
DR. SCHILF: (Attorney for Defendants Mettgenberg and Klemm) May it please the Court, we have only been able to acquaint ourselves with the outlines of the ruling of the Tribunal, because the translation, in view of the difficult text, did not bring out clearly all the details; that is understandable, and, therefore, I would ask you to wait for a decision by the Defense until we have seen the text of the ruling of the Tribunal.
Further, we will then be able to consider the question of appointing a commissioner, and that at the moment we would be delayed if we would have to make a statement on that point.
THE PRESIDENT: That will be all right; and we have no German translation. We don't at the moment have a German translation of this document, but we will be glad to furnish this English document, and possibly among the Defense they can got the meaning of it. We will take no further action until you have had further opportunity to be heard.
DR. SCHILF: We are grateful for having handed us a copy immediately.
MR. LaFOLLETTE: If it please your Honors, I wish to interrogate this witness for the purpose of identifying and assisting the Court and counsel on both sides in an understanding of Document NG-414, which occupies one hundred sixty-four pates of Document Book III-L, which is approximately the first one hundred forty-two pages of the German document book. I have the usual photostatic exhibit here, but I felt that it was necessary to offer the original for the witness to testify from; but I shall ask the Court, after the witness has finished testifying, to permit him to take the original with him so that we may use only the customary photostat.
The reason for bringing the original is that the original has writing on it in red pencil, blue pencil and black pencil; and those, of course, do not show in a photostat. Otherwise, there is no reason for me to quote the original, but that is the reason I want it here, and it must be returned.
DIRECT EXAMINATION (MARK SCHAEFFER) BY MR. LaFOLLETTE:
Q. Will you state your name, please? You have been sworn.
A. My name is Mark Schaeffer.
Q. By whom are you employed, Mr. Schaeffer?
A. I am employed by the Office of Chief of Counsel for War Crimes.
Q. Are you presently situated in Berlin?
A. I am.
Q. Do you have with you the original document from which the document described as NG-414 was photostated and made up?
A. I have with me this original document.
Q. That was originally, I understand, found in the State Secretary Folder 16 at the Ministerial Collection Center, Camp Mahogony in Fuerstenhagen?
A. It was originally found in this folder which is now located in the Reichspatentamt in Berlin, but previous to that it was in a Ministerial Collecting Center, Camp Mahogony, Fuerstenhagen.
Q. Yes. Will you take the original from the folder that you have; I will withdraw that. You got here from Berlin Sunday, I believe, Mr. Schaeffer.