Q. When did that offense occur - the one you last mentioned, and when was Gaishauser arrested?
A. It occurred on the 1st of October 1939. His arrest occurred on the same day, shortly before that.
Q. Could you tell us from the file whether it was in the morning, and where the defendant was arrested? You can find that on page 1 of the file as well as in the notes.
A. The arresting official stated: "At nine-thirty I went there. The procedure took some time."
Q. Where did he go?
A. It may be that these things occurred late in the morning.
Q. Was Gaishauser arrested in his apartment, or outside of it?
A. He was arrested in his apartment.
Q. I would like to point out that also as far as this introductory statement is concerned the witness Ferber gives an inaccurate description. In the English transcript on page 1336 it says: It is the case where a very old man was arrested late in the afternoon on the was from his home to the place of arrest."
You have already explained, witness, what legal evaluation was given to the offenses committed by Gaishauser in the indictment. Who wrote the indictment in the case of Gaishauser?
A. The indictment was composed by Ferber, signed by Dr. Oeck.
DR. KOESSL: At this point, I should like to point out to the Tribunal that the transcript, English pages 1336 and 1337, mentions only the law to guarantee law and order and attempted manslaughter, whereas he doesn't say anything about the decree concerning violent criminals which provides the death sentence as a mandatory punishment.
Now, I want to come to the most decisive statement by Ferber and I should like to read the corresponding passage of the transcript. The witness Ferber says, and I quote -- English transcript, page 1337: "In the case of Gaishauser the following was most significant that Gaishauser was a man of considerable age. He may have been near 70, and that on that day when he committed that offense had consumed alcohol in a rather unusual quantity. The export physician who had examined Gaishauser according to the regulations concerning individual responsibility, said that he was fully responsible according to paragraph 51 of the German Penal Code. Therefore, no chance of mitigating circumstances on account of arteria sclerosis nor on account of having consumed alcohol. It was a borderline case because in the session a witness appeared and submitted to the court that Gaishauser had staggered on the way, that in her opinion -- she was the daughter of an inn-keeper -- Gaishauser was definitely under the influence of alcohol. I remember full well that just the examination of that witness by Rothaug was a very significant point in the entire trial because more or less the applicability of the expert opinion given by the official physician Dr. Schumacher depended on this witness. Rothaug shouted at the witness asking whether she thought that she was expert enough to tell the court who was intoxicated, or who was not intoxicated, and what personal standards of experience she meant to apply.
The witness in the course of that interrogation then deviated more and more from the statement she had made continuously in preliminary interrogations with the police so that Rothaug gained, so to say, a victory over that witness-but that at the same time supported the expert opinion rendered by the physician Dr. Schumacher. That is how it come about that the court recognized the full requirements to apply the law to guarantee law and order."
Q (By Dr. Koessl): Witness, will you please ascertain what witness Forber meant, "She was the daughter of a woman who ran an inn."
A It is the witness Meiler who met the defendant and the official of the gendarmerie and saw the defendant stagger, and therefore was called by us to be a witness about her general observations. There is no doubt that only that witness boiler could have been the witness mentioned here because about that subject no other witness, male or female, had been heard.
Q In the verdict, on page 67, you will find that Meiler is the daughter of an inn keeper.
A From the verdict one can see that it was the daughter of an inn-keeper who made those statements.
Q We want to ascertain whether that statement which contributed to the verdict differs from the statement which the witness Meiler had made before the police. Will you please just read the short paragraph in the verdict on the back of page 67.
A Here it is stated as follows: "The witness Meiler also who saw the defendant several minutes before the offense was committed rained the impression that the defendant was intoxicated but that one could not speak of complete intoxication as far as his condition was concerned.
The witness, Meiler, is the daughter of an Innkeeper and stated that from her experience she could tell quite well whether somebody was fully intoxicated. The defendant, to be sure, had staggered over a root, but he had not fallen. That, as far as she was concerned, was the best sign that his intoxication cannot have been too bad.
THE PRESIDENT: I don't see what this has to do with the case. It will take a Philadelphia lawyer to explain how this pertains to the guilt or innocence of the defendant Rothaug.
DR. KOESSL: It has to do with the fact that the witness Forber associated with this witness, Meiler, upon questioning by Rothaug in the main trial, had made entirely different statements than she did before the police official.
THE PRESIDENT: If you consider that important enough to go into at all, then just ask the witness what the facts are, and if he states the facts differently from what the affiants stated then the court will be in the possession of both sides of the argument.
DR. KOESSL: Will you please tell us now, witness, whether the statements by the witness Meiler before the gendarmerie for the local police are in accordance with the statements which you have just mentioned from the main trial?
A. The statements made before the court are in accordance with the statements which the witness made before the local police. Here again her last remark is, "He was under the influence of alcohol, but not so completely that he didn't know what he was doing."
There is no difference between the statements made by the witness before the local police and the statement which she has made before the court.
Q Now, I want to show that the witness Ferber says about the manner in which Rothaug exerted the alleged pressure on the witness Meiler. He says - English transcript page 1338 and 1339, the following: "One can only understand that in the following manner: That he influenced psychologically, he overpowered psychologically that simple roman standing before the court, which had the consequences that she became insecure. I remember that Rothaug, for instance, gut the question to the witness: "When, in your opinion, is anybody so intoxicated that he no longer knows that he is doing?" That woman - I think that girl was hardly more than 20 years old, became insecure in a case like that and begins to-
THE PRESIDENT: I have to interrupt you and state that we are not concerned at all whether the defendant Rothaug made that remark to that question to the witness, or whether he did not. It makes no difference to us. We are not concerned with that.
DR. KOESSL: May I say briefly why this is so important?
THE PRESIDENT: No, we are not going to hear you on it. We are not concerned at all whether he said it or didn't say it.
DR. KOESSL: Mr. President, what I have just read was not a statement made by Rothaug but the statement made by the witness Ferber.
THE PRESIDENT: Yes, I understand. Go on with the next question, please.
We've ruled on it.
BY DR. KOESSL:
Q Witness, tell us the age, environment and the place where the witness Meiler lived - from the files.
A The witness Meiler was not a girl of 20, but a woman of 34.
THE PRESIDENT: We are not going to hear that testimony. We do not want to know about her age or environment, and we are not going to convict the defendant with anything relative to that matter.
BY DR. KOESSL:
Q Ascertain, please, witness, when and by whom the expert medical opinion was requested. You rill find that request on page 17 of the files.
A The expert opinion was not requested by the court but by the prosecutor.
Q Do you find the passage?
A Yes.
Q By whom was that expert opinion requested?
A By the prosecutor.
Q When the District Court doctor made his expert opinion did he have that statement already, the statement of the witness?
A Yes.
Q Was that written expert opinion read in the main trial?
A No.
Q Why wasn't it read?
A Because according to the law of procedure the medical opinion had to be pronounced in the main trial orally.
Q Will you give us a general description of that export opinion which you find in the files?
A It is along the same line as expert opinions were given at that time, generally.
Q Is the evaluation of the defendant on that basis based on the racial point of view?
Court 111, Case 111 (Uiberall) 16-1-GW-A-19 Aug 47-Daniels
A He is considered an irascible man, an alcoholic, a liar, a brutal character, inconsiderate, and a psychopathic individual. Then it is stated that he is neither feeble minded nor mentally ill, and that his drinking was not to such an extent that it could influence him to commit the offense.
I cannot find that any sociological or racial point of view are mentioned in that expert opinion.
Q Who was the defense counsel for Gaishauser?
A Kroher; attorney Kroher had been appointed defense counsel.
Q By whom was he appointed?
A By me.
Q As far as the question of responsibility of defendant Gaishauser is concerned, did defense counsel Kroher do anything bout that? Please look at page 55 of the files.
A Yes; there is a motion of 15 December 1939, saying the following:
"I request that the defendant be transferred to the mental institution at erlangen for examination of his mental state of health."
Q I want to emphasize what we discussed yesterday concerning motions made by defense counsel and the way they were handled, as well as the statements by Ferber, in the English transcript at pages 1704 and 1705, where he mentions the motion made by defense counsel Kroher.
Now, after having explained the legal point of view yesterday, we want to discuss the facts today.
Did Kroher, as Ferber asserts, object to the sociological and racial points of view mentioned in the expert opinion?
A There is not a word about that in the reasons given for his motion.
Q What was the opinion of the doctor of the District Court concerning the motion by Kroher?
Court 111, Case 111 (Uiberall) 16-2-GW-A-19 Aug 47-Daniels
A He did not make the request to have the defendant transferred to a mental institution.
Q Ferber assorted that you had rejected that motion, giving as a reason that it would be in erestion to find out those sociological and racial points of view. Does that decision on your part, in rejecting the motion by Kroher, contain any reasons of that kind?
A In that decision it is explained that the motion was rejected because the medical expert had not made the motion to have the defendant transferred.
Q Will you please ascertain now whether attorney Kroher attended the main trial personally?
A Yes, he attended the main trial himself. It is not true that he was represented by somebody else.
Q Who was prosecutor during that session?
A Dr. Ferber.
Q Did Kroher, during the session, repeat his motion? And if so, in what form?
A Droher repeated the motion, which had been rejected before the main trial, during the session, and this time in a somewhat modified form.
Q What was the position of Prosecutor Ferber concerning the motion by Kroher?
A May I supplement the answer I have just given? In a modified form, as I said, by requesting that an expert opinion be given by a psychiatrist and neurologist.
Q And what was the position taken by Prosecutor Ferber?
A Prosecutor Ferber moved that the motion by the defense counsel be rejected, and he referred to the export medical opinion which was available from the official doctor of the District Court.
Q What was the position of the Court concerning the motion by Kroher? 7324 Court 111, Case 111 (Uiberall) 16-3-GW-A-19 Aug 47-Daniels
A The Court also rejected the motion-again, as far as the requested examination to be made in a mental institution was concerned-- for the reason that the medical expert had not made such a request.
Q Will you please read the decision, in order to explain what possibilities the Court afforded to the medical expert?
A The decision reads as follows:
"The request to have mother medical expert called and to have the defendant examined in a mental institution is rejected because the evaluation of the full responsibility of the defendant under criminal law has been fully provided by the medical expert, who has been heard. This medical expert, so far, has not seen any reason to make use of his exclusive right to make this motion according to Paragraph 81 of the Code of Criminal Procedure."
Q Did defense counsel Kroher make any further motions for evidence? I refer to page 60, the back of page 60.
A He moved that a witness Klompfer be heard to comment on relations with Gaishauser's wife.
Q What did the prosecutor do?
A The prosecutor requested that that motion be denied.
Q What was the decision made by the Court?
It rejected the motion to have Klompfer called, because, in evaluating the facts, it would make into consideration that the defendant was jealous of his sub-tenant Klompfer.
Q Is anything to be seen from the transcript of that session which would indicate that the defense was restricted in its activity?
A Nothing can be found about that from the transcript; and the defense counsel was not restricted or limited in any way because he has actually made all sorts of motions, all possible motions, and they were dealt with and decided upon.
Court 111, Case111 (Uiberall) 16-4-GW-A-19 Aug 47-Daniels
Q What sentence did Prosecutor Ferber demand during the session, and for what legal reasons?
A He demanded the death sentence, based, among other things, on the decree concerning violent criminals, which provides for a mandatory death sentence.
Q Will you also tell us, please, what the sentence says in connection with the application of Paragraph 1 of the Law Against Violent Criminals? That is on page 70 in your file.
A The penalty for the crime, according to Paragraph 1 of the Decree Concerning Violent Criminals, of 5-12-39, is the mandatory death penalty.
Q The fact that the offender was not previously convicted and that the injured person recovered quickly, could that be brought into play as mitigating circumstances?
A Certainly not.
Q I believe that takes care of the case of Gaishauser.
Now I should like to discuss the case of Engelbauer. The case Engelbauer was submitted as Exhibit 162, and it was dealt with by the witness Ferber after the case Gaishauser. In addition to that, reference is made in Exhibit 222 to the case Engelbauer.
Witness, will you please give us, first, the name of these files, and the number?
A It is the case against Engelbauer, George, for crimes under the Decree against Public Enemies, under the file number SG-41-40.
Q The name Engelbauer is spelled E-N-G-E-L-BA-U-E-R.
On the basis of the files, please tell us first, what office introduced the thought into that case that it may have been a crime taking advantage of the blackout? The witness Ferber has stated that the alternative in this case would have been not to Court 111, Case 111 (Uiberall) 16-5-GW-A-19 Aug 47-Daniels apply the regulations concerning crimes during blackouts.
A First of all, the files had been compiled on the basis of general legal considerations and at first no indictment was filed by the prosecution.
Q Will you please look at page 13 and toll us what provision you find there and who wrote it?
AAfter Engelbauer was arrested a disposition was made on the 24th of November 1939, which provides, first, that the offense was committed during darkness, but not by taking advantage of the blackout; transferred to prosecution for general criminal cases. Signed by Spiegel, suggested by Ferber.
That is how the case first cams to the ordinary courts.
Q After further investigations made by the police, there is another disposition by the prosecutor of 22 December 1939 to the Political Referat. Will you please look at page 27?
A Further investigations were made, and the public prosecutor, on 22 December 1939, directed that the case be further dealt with by the Political Referat (Department), in order to have it transferred to the Special Court. On the 25th of January, 1940, it is stated that the Political Prosecutor had taken the case over.
That disposition is signed by Ferber, who also states that he wants to go to Neumarkt to look at the place where the offense was committed.
Also, under date of 31 January 1940 we find a report from the local police which refers to the visit by Ferber and explains what was discovered on the basis of the assignment concerning the question as to whether advantage was taken of the blackout.
Q Will you please toll us now about the contents of the disposition by the Mayor of Neumarkt, which is a report to the prosecution?
That is at page 43 of your file.
A That is a letter with which the files were forwarded to Prosecutor Ferber.
Q And now please read the legal explanation from the indictment and tell us who composed that indictment. Page 34, back of the file.
A The assumption was a crime by taking advantage of measures taken in protection against air raids, in connection with burglary. The indictment was composed by Ferber and is signed by Wilhelm Hoffmann.
Q From the transcript of the session of 16 February 1940, on page 36, will you please ascertain what arguments and what motions were made by the prosecution in the case of Engelbauer?
A The motion was made that the death sentence be pronounced, based on paragraph 2 of the Decree Against Public Enemies.
Q Now tell us please, from page 14 of the verdict -that is pages 46 and 47 of the files -- what the verdict states concerning the question of taking advantage of the blackout. It begins "During that night, the witness in question ...." That is at the back of page 46; it is page 14 of the verdict.
A That isn't the way it starts:
"The defendant committed the offense by taking advantage of the blackout. The fact that street lights were off made it easy for the defendant to ambush the woman Liebel, to chase her on Nuerembergerstrasse and to ambush her again at the intersection to Holzheimerweg. If the street lights which are provided there had been on, the danger of being recognized on Nuerembergerstrasse would have been much greater for the defendant.
On account of the darkness in that part of the street, which usually is quite free and can be very well seen, the defendant" -
MR. WOOLEYHAN: One moment please, witness.
May it please the Court, I presume that the witness is reading from Exhibit 162. That being the case, can't we dispense with the reading and merely refer to it?
THE PRESIDENT: That is in evidence now, as we recall it.
MR. WOOLEYHAN: It is, Your Honor.
THE PRESIDENT: Yes; it is not necessary to read it again. The exhibit is familiar to us.
DR. KOESSL: Mr. President, in this connection may I ask whether that moans that when exhibits have been submitted I should not have any passages read? Because the prosecution read passages when it submitted exhibits, and it was stated at the time that the defense, though to a limited extent, could point out those passages which, intentionally, were not read by the prosecution.
THE PRESIDENT: You can point them out, but the experience of the trial, both as to prosecution and defense, has very clearly demonstrated that the reading aloud of exhibits, particularly after they have been received in evidence, is not of any benefit to either party in the case. The Tribunal is exhausting itself, or is expending its energy to the fullest possible extent in examining these documents and making notes as to the provisions which favor either the defendant or the prosecution, and we find it a complete waste of time to road documents which are already in evidence.
We recollect the story of the blackout and what happened there without your even refreshing our memory on it.
DR. KOESSL: I only wanted to refer to the statements made in the verdict with regard to the fact that it was considered a considerably serious case.
THE PRESIDENT: Yes, we recollect that.
DR. KOESSL: Yes.
BY DR. KOESSL:
Q Witness, what point of view did the prosecution have at that time concerning the death sentence? Will you please turn to the clemency file and look at page 5? The clemency file is in the brown cover.
A This is a report by the prosecution to the General Public Prosecutor of 21 February 1940. As I can see from the file notes on this document, that report was submitted by the prosecution as evidence in this case.
Q Will you please tell us what the point of view of the prosecution was, quite briefly, please? Did the prosecution approve?
A The prosecution was absolutely opposed to an application of clemency.
Q And who signed it?
A It was composed by Ferber and signed by Wilhelm Hoffmann.
Q Now I want to submit to you the administrative regulations of the prosecution so that you can discuss the general principles, according to the instructions by the Reich Ministry of Justice, concerning the application of the Public Enemy Decree.
Please tell us what provisions you find on page 536.
A: This is a circular decree by the Reich Minister of Justice of the 12 September 1939 which directs how penal cases of offenses against the public enemy decree are to be handled. Reference is made to the national duty. A request is made for ruthless combatting of public enemies. The directive continues: "All judges and prosecutors are expected to apply that decree with the same quick power of decision and energy with which it was issued. Nonapplication of that decree is a betrayal of the fighter soldier. All persons concerned have to cooperate to see that an offense indictment, trial, sentence and execution follow as quickly as possible."
There was another circular decree of the year 1941 concerning that question, where the introduction mentions that there should be no slackening in criminal proceedings; that extreme severity should be applied against anyone who commits an offense in the sense of the public enemy decree. To spare offenders who are public enemies would mean betrayal of the fighting nation.
Q: That is sufficient, witness,. Now, the charge is raised against you by several parties that you had insulted the defendant by telling him that one would put his head before his feet or something of a similar nature.
A: That statement or similar statements I have never made to these people. What happened was this: I frequently characterized the offense as such but only if the offender was of the type and that in order to justify the severity of the evaluation I made the remark that whoever knows the prohibitions and their consequences and still committed an offense, should not complain if his head would eventually be put before his feet. That statement was made in a connection of that kind but not in the clumsy form that I had the man brought before me, as it has been alleged, to tell him simply, "We will put your head in front of your feet."
Q: In connection with this question I want you to refer to a newspaper clipping which is found in the Engelbauer file. Will you please read the respective passages which are marked there. It is the disposition for the execution of the sentence. It is pasted on a brown cover.
A: This is an absolutely unbiased, sober report, quite free of any passion and which, therefore, affords certain insight into the manner of how the trial was conducted at that time. First a report is made about the facts of the offense. Then there is a remark which says -
THE PRESIDENT: That goes beyond even the ordinary rules of hearsay. We don't care to hear what some newspaper has published with reference to the fairness of the trial.
DR. KOESSL: Mr. President, I wanted to contrast this article with the Stuermer report, for instance, which the Prosecution has submitted. If newspaper reports are not admitted then, of course, I will be very happy.
BY DR. KOESSL:
Q: Witness, we want to explain now what is of basic importance in this case, that is, what the nature of the assumption is that a case is a particularly serious case and what the regulations say in connection with that. The Witness Ferber has stated that it would have been your possibility not to apply the blackout regulations and frequently the assertion was made that you would have had the possibility to answer the question whether any case was a particularly serious case in the negative.
Will you please open the administrative regulations, the same regulations which you had before you, and tell us what you find on Page 537 in the circular decree of the 20 March 1940?
A: In the circular decree of the 20 March 1940 it is expressed how, as it is all explained under Figure 158 of the outlines of procedures of the 13 April 1935, that the legal characteristics of the offense are to be listed in the indictment. Frequently, when an indictment is filed for offenses against Paragraph 2 or 4 of the Public Enemy Decree, the assumption that this is a particularly serious case is not specifically mentioned. In the future I ask to include this with the legal characteristics of the offense already in the indictment.
That circular decree is of importance for the extent of punishment which I mentioned this morning because here in this decision it is recognized that a particularly serious case is not a characteristic designed to influence the extent of punishment but designed to characterize the offense itself, a characteristic of the offense which the judge, in expressing his final decision, has to justify and give reasons for legally and logically and which, therefore, can be re-examined by the Reich Supreme Court in every individual case.
Q: Accordingly was it, therefore, within your power to assume or not assume that a case was a particularly serious case?
A: That was not up to my discretion. It was a question of law and logic which either, as all questions of law and logic, could be answered correctly or incorrectly. Of course, every court also in the case of a murder, can assume that it was a case of manslaughter. But that is not the problem. The problem can only be whether, according to the legal situation as such, everything is taken into consideration that should be.
DR. KOESSL: That concludes the Case Engelbauer.
THE PRESIDENT: The time has almost arrived for our recess. It has occurred to us that it should be noted that the clipping from Der. Stuermer was put to the witness as a part of cross examination.
We will take our recess at this time.
(A recess was taken).