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.
A. Saturday.
Q. Saturday. And since you have been here have you had an opportunity to adequately compare the mimeograph sheets in Document Book 1 and the Photostat exhibit with the original which you have in your hand?
A. I have had two days to compare the original with the photostatic exhibit.
Q. Now, the first page of the document book, and the first page of the photostat contained typewritten material in the German language, and the date Berlin, 5 July 1944; and the hand-written signature Kuemmerlein; is that what you find on the original?
A. That is what I find on the original.
Q. On numbered pages two and three of the original and of the photostat, did they comprise the material on page two of the document book, as you recall it?
A. Pages two and three in the original comprise pages two and three of the document book.
Q. The writing on pages two and three of the document book, I believe, is in long-hand; is that correct?
A. That is correct.
Q. And does pages two and three of the photostat and the document book consist of one page written on both sides in the original document; is that correct?
A. That is correct.
Q. And at the bottom of that page do you find the signature of Klemm?
A. On the bottom of page three I find the signature of Klemm.
MR. LAFOLLETTE: That is the note displayed at the bottom of page 2 of the document book, your Honor.
Q. In what sort of pencil is that writing?
A. It is in purple colored pencil.
Q. Some people would maybe call it lavender or pink, but it is not blue or black; is that correct.
A. That is right.
Q. Do you find throughout the document, the original document thereafter, writing with that colored pencil which, in your opinion corresponds also in the form of writing to the signature of Klemm, and the "T's" which mark the original pages 2 and 3 that you have?
A. Yes, in my opinion the writing in purple colored pencil throughout the document corresponds to the writing on pages 2 and 3 of the document.
Q. I ask you whether or not you find longhand written "T's", "T" for tod on pages 2 and 3?
A. I do.
Q. Therefore, translated in the document book, pages 2 and 3, is death; is that correct?
A. That is correct.
Q. In connection with that sentence of imprisonment of death, do you know of any sentence for which the initial "T" for tod could stand for, except other than death?
A. I know of no other word than death for which the initial "T" could stand for.
Q. I wish you would turn to page 15 of the original, which is on page 17 of the document book. Is that where the handwriting begins in black pencil?
A. It is.
Q. In your capacity working with OCC, have you seen the master copy of signatures, which is among the documents in the OCC files in Berlin.
A. I have seen the master copy of signatures.
Q. In your work have you worked with documents and studied the signatures and the handwriting of the people whos handwriting and signatures are shown on that master copy?
A. I have worked with hundreds of documents which contains signatures comparing exactly with those appearing in this signature file.
Q. On Page 15 of the original, do you remember whether that block handwriting appear where it starts, "Report to the Minister on Tuesday 21 December 1940 -- the last letter is off my mimeograph copy -
A. Yes, it is Thursday instead of Tuesday.
Q. Yes, Thursday, December 21 -- what is the year?
A. 1944.
Q. And is the first Case Reichold?
A. The first case is Reichold.
Q. And the handwriting on that page through page 17 of the original, is that in black pencil?
A. That is in black pencil.
THE PRESIDENT: On what page in the document book is that?
MR. LAFOLLETTE: I am coming to that, Your Honor. That would be on the bottom of page 19 of the document book.
Q. Also, do you find handwriting in blue pencil in the original document?
A. I do.
Q. Approximately on what page does that first appear in the original?
A. Page 18 of the original, that is the first page which contains handwriting in blue pencil.
MR. LAFOLLETTE: That would be page 18 of the document book, your Honor -- I mean page 20 of the document book, I beg your pardon.
It is at the top of page 20 of the document book.
Q. Is there handwriting on that page?
A. Yes, there is.
Q. Is it in blue pencil?
A. It is in blue pencil.
Q. In my opinion that is the handwriting of Klemm.
Q. Now, I will ask you from time to time, in the lower right hand corner of certain pages of that original document, if there are other initials, right in the extreme corner?
A. Yes, from time to time, there are other initials in the right hand corner on pages of the document.
Q. Can you give us the names of some of those initials, and possibly the pages of the original?
A. One of the names is Altmeyer, which appears on page 26 of the original.
Q. Are there two handwritten final signatures on that page?
A. No, on page 26 there is only one.
Q. Only one?
A. Only one.
Q. Did you make a notation on what page of the photostat that was?
A. I have not. It is probably on page 24 or 25 of the photostat.
JUDGE BLAIR: Mr. LAFOLLETTE: When the witness gives the original page, the best I can do is give you this information as soon as I find them.
THE PRESIDENT: The instrument just referred to, you say it was page 26 of the original?
MR. LAFOLLETTE: Yes, and that appears on page 30 of the document.
Q. And, is the handwriting -- is the name on that in the handwriting of Mulder?
A. The name Mulder is typed.
Q And is this ale typed: Ministerialdat Atlmeyer?
A Yes Q And, is this written on there:
Five years penitentiary, Collaborator Dernedde?
A Yes.
Q And where does the initials of Altmeyer appear?
A The initials of Altmeyer appears on the lower right hand corner.
THE PRESIDENT: May we inquire then if that signature of Altmyer appears on cur page 30?
MR. LAFOLETTE: It does not, Your Honor.
THE PRESIDENT: I know that it does not, but it should not appear at just about the line which reads, Page 27 cf the original"?
MR. LAFOLETTE: Yes, Your Honor, in the lower right hand corner.
Q And, when you said there was only one name, you misunderstood me, there was only one initial. There are thirteen names on this, are there not?
A Yes; oh, yes.
Q That is where I was confused, there is handwriting after each of them, is that correct?
A Yes.
Q So, it begins with the name Mayer, is that correct?
A Right, it begins with the name Mulder.
Q Yes, and below that is the word, clear?
A Yes.
Q The german word, for the word clear?
A Yes.
Q And No 1 is Mayer is it not?
A Correct Q And the last is Bornell?
A The last is Bornell. It is in handwriting?
Q And, Holwert is in handwriting?
A Yes.
Q The first eleven are typed, is that correct?
A That is correct.
Q Is there a question mark after the names Hulwert and Bernell?
A There is no question mark after Hulwert and Bornoll.
Q Is there anything there?
A There is a dash after both Q Is that true in the photostat?
MR. LAFOLETTE: I do not assume the Defense Counsel can object to the mimeograph sheets as being more favorable than the document.
Q Now, then, in what color pencil is the initials Altmeyer?
A The initials of Altmeyer, in my opinion, were written in ink.
Q Is it written in ink?
A Yes, sir.
Q And the T's, they are written on that page?
A The T's are in purple colored pencil.
Q In purple colored pencil. In your opinion were those T's put on there by Klemm?
A Yes.
Q They correspond with the T's you have seen throughout the document and particularly the first two pages where his signature is written; is that correct?
A. Yes, they correspond throughout the document and with the first two pages.
Q I will ask you to turn to page 87 of the original there which is page 99, your Honor, of the English Document Book and would be page 87 of the German. Now, on page 87 of the original and that would be -- if they are numbered -- 84 of the photostat. Do you have that there, too?
A Yes. 84?
Q Of the photostat, yes.
A Yes, I have that.
Q Do you find T's after the names "Bischop's Sabotage Cases, Ministry Competent Officer Franke" -- do you find T's after those?
A Yes.
Q Written in longhand?
A Written in longhand.
Q I point out, your Honor, that this document book, those D's are just somebody's idea of writing down death. Have you examined this mimeographed document book, Mr. Schaeffer?
A I have.
Q And have you and I checked it indiscriminately from page 99 of the document book on to the end?
A We have.
Q And whether or not we found wherever there's a D in the English Document Book there was a handwritten T on the original document?
A wherever there's a D on the English Document Book there's a T on the original.
Q And that's true with reference to the photostat?
A That's true with reference to the photostat.
Q I ask you to turn to page 20 of the original which would be also page 20 of the German book and that's the same as page 18 of the photostat; is that correct?
A Yes, that's right.
Q Do you find at the top of the page "General Death Sentences" in the original?
THE PRESIDENT: What page of the English are you talking about?
Q I beg your pardon, your Honor. I am on page 23 of that document. Do you find at the top in German "General Death Sentences?"
A Yes.
Q And the signature "Ministerial Councillor Altmeyer?"
A Correct.
Q And the first is doubtful and Altmeyer had a line through it "doubtful?"
A Correct.
Q The second -- the number two name on that list, what do you find on that list?
A I find the name Togni.
Q And is the German equivalent of "suspended decision" written in handwriting?
A Yes. "Decision still suspended."
Q Still suspended. I think I will interpolate that I think the Court will remember we discussed the Togni case yesterday. Now, from your examination of this document; the handwritten T's of the defendant Klemm or what are pages one and two -- the original page; and longhand written page two of the document the signature of the defendant Klemm in his handwriting on that document and your comparison of that signature with the Ministry Document of signatures which you have seen and which have been previously introduced in evidence, are you of the opinion that the writing in the originals of Document NG-414, whether in purple, black or blue pencil other than the signatures which appear in the corner from time to time, are the handwriting of the defendant Klemm?
MR. LA FOLLETTE: The prosecution at this time offers to introduce in evidence as Prosecution Exhibit No. 246, Document NG-414
THE PRESIDENT: It seems to me that for greater accuracy in referring to the document of signatures the record should show that is Exhibit NO. 57.
MR. LA FOLLETTE: Thank you, your Honor. That is the exhibit to which I refer.
THE PRESIDENT: The document will be received in evidence if there is no objection.
DR. SCHILF: Dr. Schilf for the defendants Klemm and Mettgenberg
MR. LA FOLLETTE: Your Honor, I am purely making a suggestion for myself and defense counsel and the rest of us in the room. This courtroom is hard to work in. be have gotten along very splendidly I think but I would like to suggest that in using this microphone the person who has the podium will use the left-hand microphone and the other will use the right-hand microphone. In that way we won't be grabbing microphones from each other. I would also like to offer another explanation which I think I am entitled to offer; that when I stand here at various times with my back to defense counsel I have no intention to offer offense but I want to stand forward as far as I can so their I will not appear to be looking on or eaves-dropping over their papers. I think that also will help our conduct of this trial in this courtroom.
DR. SCHILF: Schilf for the defendants Klemm and Mettgenberg. May it please the Court, I do not wish to object to the submission of this document but I have a request to make and I could imagine that Mr. La Follette can perhaps comply with my request.
The discussion of matters concerning this document would thereby be considerably facilitated. We have to deal with hieroglyphics in this case, on which appears as far as I have seen in part to have been typed but a large part of it was written in handwriting. It seems that the handwriting is that of the defendant Klemm. At any rate, a large part of it. The German Document Book which has been given to us naturally has been typed right through and we have found that very many typing errors appear to have occurred. I wish to emphasize that that is no reproach that the document might be compiled in haste but it is merely due to the fact that the handwriting is very difficult to read and the names in part have been entered in type between the lines which are not very distinct. I am interested concerning my German copy of the Document. I am interested in comparing it with the original handwriting because I have to make a very detailed comparison. We are told that the witness had two days for making the comparison and presumably my client and I will take longer to study and to correct the various places where mistakes have occurred. To be able to do that work I would ask Mr. LaFollette to give me a copy of a photostat. I have another request to make to the Tribunal; the photostat as I could see right new, that does not make the handwritten remarks apparently legible in every case and I would like to start with the original. I would therefore ask that the original could be handed to me -- could be left in my charge for 48 hours so that I cam compare it with the photostat, after I have received it from Mr. LaFollette, the photostat in the short time I have had it, I couldn't examine it in detail. It seems to me that that photostat in many points is not as clear in the way it shows behind writing and it isn't therefore apparent with what the document itself is concerned, the original document. I am prepared to discuss the purely technical points of this matter with Mr. LaFollette and I believe we can come to an amiable solution but it will only be possible if first of all, the document is not yet submitted as evidence today but kept back until we have examined the supplement.