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).
20-1-A-GW-19 Aug 47-Perrin (Wartenberg)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: May I continue, Please. I now want to continue, and I want to talk about a case which was not submitted, but by means of which I can demonstrate some essential points of view, and give evidence against these points which were made as charges against Rothaug. First, by discussing that file I want to prove what significance would be ascribed to the condition of intoxication which, for example, was important also in the Gaishauser case. Furthermore, for what reasons the most serious point of view in the application of the order against violent criminal was rejected by the special court; moreover, how the Rothaug's attitude towards the prosecution regarding the legal judgment of penal cases as far as Rothaug was officially concerned with these matters; quite generally in connection with that case, I wanted to point out the thoroughness in which the trial was conducted.
BY DR. KOESSL:
Q. Witness, I herewith submit you this special court file, Melbig. Please first state what this case is about and what the subject of the indictment is?
A. This is the case-
Q. You find the indictment on page 46.
A. This is the Maria Melbig, for murder SG-90-43 file number.
Q. Just a moment, witness, I believe the file number, you did not read it correctly.
A It changed later on to SG, that is Special Court, 26343.
THE PRESIDENT: Dr. Koessl, we don't want to be arbitrary with you in any way, but the Tribunal is very gravely in doubt as to-the Tribunal is gravely in doubt as to the propriety or the value of the presenting as you have offered to do of a case which as I understand you is offered as a model case of proper legal procedure.
20-2-A-GW-19 Aug 47-Perrin (Wartenberg) There may have been thousands of such cases, but they do not contradict any specific charge in the testimony of the prosecution; and I can not say too emphatically that we are not concerned at all, and your client need not be concerned at all with the matter of how the question of intoxication should be dealt with by a court.
I think all the members of this Tribunal have realized the difficulties in perhaps hundreds of cases involving intoxication, and it has a nothing to do with the exoneration or the conviction of any defendant. Out thought is that you should confine yourself to the answering of specific charges made against the defendant. There world be no place-- no stepping point, if you were to begin introducing in evidence cases to show that this or that or the other case was properly tried because we concede there may have been thousands of such cases.
DR. KOESSL: Your Honor, our opinion on this case is the following: that the conclusions drawn by the prosecution from the treatment of one or the other case are of a general nature and that in reality they concern at the most three or four cases out of about two thousand, and these general conclusions are absolutely impossible because we are taking the view if these had been no wrong interpretations of the law once in a while or if there had not been a mistake and if there were no such matters, then there would be no necessity for a jurisdiction by a higher court, in addition to that, the prosecution did not prove any mistakes in the application of the law, but only put up suppositions and assumptions and ascribed intentions to the defendant which were absolutely not proved, but only supported by the submission of about 30 affidavits of general opinions, of general statements. In this manner of submitting evidence the prosecution tried to spread bad feeling against the defendants in general without emphasizing any well-founded assertion in any 20-3-A-GW-19 Aug-47-Perrin (Wartenberg) single case and bringing any evidence to that; and for that very reason, we made efforts to refute these general allegations by the prosecution quite generally, to do away with these political points of view and to mention even trivial things and to refer back to facts and cases by means of which we wanted to state that the allegations are wrong.
Those are the lines of thought which are guiding us, and we are only forced to do so for the reason that the prosecution brought forth matters which were not of a concrete nature, only a few things of such a concrete nature; and they made impossible allegations, and these impossible allegations we want to disprove by these general statements, this is the only reason why we discussed with such emphasis such matters which perhaps may seem subsidiary to an extent.
THE PRESIDENT: Dow, if you will lesten, we will make it a little more clear. We have gone to great extent in permitting you by this witness and by others to deny generally the general, and in some cases, very indefinite accusations, as to the allegedly improper method of trying a case, insofar as those charges are worthy of any consideration at all, they are general charges and we permit you and have permitted you to make general answers to them, but your own statement makes it perfectly clear that no trial, no court in the world, could permit a defendant to answer hazy and general complaints about the manner of the trial of a case, of cases in general, by putting in evidence of specific instances in which he had tried the case properly; and we will not receive specific instances which are merely offered to show that in that case the defendant tried the case properly.
we indulge the presumption that unless there is a case in which as shown that the defendant acted contrary to the principles or Control Council Law 10, we presume that he acted in accordance.
20-4-A-GW-19 Aug-47-Perrin (Wartenberg) with than.
It is only when there is some charge which is made which amounts to a violation of Control Council 10 or the Charter that we give any credence at all to this testimony, and your offer of evidence of specific cases to show proper conduct of a trial is rejected. We have given you the privilege of general answers to general accusations and, of course, you may make specified denial to any specific charge, that I have said before.
DR KOESSL: In this Melbig Case, I wanted to turn against the charge by the prosecution that Rothaug's relationship so the prosecution regarding the legal judgment of criminal cases before the trial even, was in any way objectionable. Furthermore, I want to turn against the charge by the prosecution that the special court always looked for the most serious penalties and the most severe points of view; and that Rothaug always tried to consider two most serious point of view of a case of a crime. Under this point of view. I wanted to discuss that case.
THE PRESIDENT: The Tribunal has made its ruling.
DR. KOESSL:
Q. Witness, please state which punishable offenses was Melbig woman was being indicted for here?
A. This is a murder case in which a mother murdered her own son in a cruel manner and for low motives.
THE PRESIDENT: Just a moment.
A. With a hunting gun, she shot him with a hunting gun.
THE PRESIDENT: Has the prosecution referred to this case in many way?
MR. WOLLEYHAN: As far as the prosecution is concerned, it was not offered as an exhibit or mentioned it in any connection.
THE PRESIDENT: And your claim is that the case was handled all respects properly, I assume?
DR. KOESSL: Yes, as an every other case. I don't know of any case in which the trial was not properly handled.
THE PRESIDENT: And there being no evidence to the contrary, we will assume that you are correct in that respect. Now, we have ruled that that case is out.
BY DR. KOESSL:
Q Witness, in that case, we shall turn to the case which was made a subject of one of the main charges. It is the Katzenberger case. With that case the following documents, testimony, and affidavits are concerned with that case. First Exhibit 155, that is a report from the "Stuermer" which was submitted by the prosecution in Document Book 3-C. This report from the "Stuermer" was apparently supposed to prove somethings or other, I don't know whether the prosecution by submitting this newspaper article wants to prove the importance of the contents of this article -
MR. WOOLEYHAN: One moment, please. May it please the Court, this is pure argument. I thought we were engaged here with an examination of the witness. I object to any further remarks in this vein.
THE PRESIDENT: The objection is sustained.
BY DR. KOESSL:
Further, Exhibit 478 is concerned with the Katzenberger case as the situation report by the general public prosecutor; further, Exhibit 153, that is the Groben affidavit; further, Exhibit 151, that is the Ferber affidavit; further, Exhibit 154, that is the Markl affidavit; further Exhibit 156, that is the Engert affidavit; furthermore, Exhibit 157, that is the Dr. Bauer affidavit, furthermore, Exhibit 237, that is the Doebig affidavit; moreover, the prosecution deals with that case in the opening statement. Furthermore, the testimony of the witnesses Groben, English transcript page 3614 to page 3626 are concerned with that case; furthermore, the testimony by Ferber in the English transcript, page 3653 to 3661 -- I beg your pardon, the Ferber testimony is in the English Transcript, page 1312 to 1466, and page 1576 to 1746.
The Markl testimony is in the English transcript on page 3353 to 3661, and pages 3674 and the following pages. The Engert testimony, page 3694 in the English transcript to page 3700. Furthermore, Dr. Bauer testimony, English transcript, page 3603 and the following pages. In addition to this, the testimony of Meissmer and Schlegelberger were concerned with the Katzenberger case. I have only received these two passages of testimony in the German transcript. There, Meissmer is on page 4547, and Schlegelberger, page 4407, that is the German transcript. In consideration of the extraordinary charges which were raised against the defendant in connection with the Katzenberger case, I request permission to be allowed to deal with it very extensively.
BY DR. KOESSL:
Q Witness, first I want to put the question to you which was asked quite frequently during this trial. What was your attitude to the racial question?
A Until 1928, approximately, I never concerned myself with that question at all. The main reason for this was probably that with Jewry as such, I never had any conflict and could not have any conflicts with them. I grew up in the country and know only the one Jew who was working in the country. They were honest people who lived without any conflict with the local population. Also in grammar school, the students who went to school with me who were Jews were respected just as every other person; and also during my time in the Army, and I must say I was at the front only, there Jews we re also serving as soldiers, and they did their duty as everyone of us, so that until the end of the war through the real conditions of life, I never was pushed to consider this question. The following revolutionary conditions which touched very strongly our national feeling which is inborn it became noticeable that an individual cases the Jew who is living in the big city was emphatically leaning to the pacificist direction, but that too was for me no cause to develop any aggressive or opposing attitude to Jewry. At that time, too, I was so busy with my own affairs and my professional advancement that the general problems which were connected with the near collapse of the Reich at that time did not interest me so deerly that they would have been able to determine any basic attitude on one or the other question in any case.
In approximately 1928, in other words, after I had achieved some position in my profession, I occupied myself more intensively with natters which mere outside of the circle of my professional interests more as a hobby.
Among these fields was the field of psychology, philosophy, and history, and in connection with that, I also studied the racial question very intensively, beginning with the Frenchman Gobineau.
Q. What purpose did you pursue with this study?
A. With that I satisfied my own inner needs. I wanted as a private person to obtain clarification about all the problems which touch humanity in that connection.
Q. What interested you in the racial question?
A. First of all, my interest in the racial question was the question as to what extent the fate of the individual and thus the fate of the people depended on the race and is determined by the race.
Q. Were you interested only in your own people?
A. Not at all. I was interested in the racial problem in general, because only by comparison can one recognize the differences in the outside appearance, in the spiritual structure and in the social and cultural abilities. Only in that manner is the nature of the individual apparent, and the fate of the people, and also the way of the people. What was my opinion. Also the fate of the people is very much determined by that.
Q. Did you also concern yourself with the Jewish question in these studies?
A. Naturally. Jerry is the most racially minded people of the world, and the connection of the race idea with its religious ideas has enabled it to outlive all times, expires, and cultures; thereby the Jews have become the oldest people of the world, and therein lies the great misunderstanding which was misused politically and thus brought about a catastrophe.
Q. At that time when you were entering that world of ideas and the consideration of the world from a racial point of view, were there any political conclusions that you drew in your own opinion?
A. Not at all. It was enough for me that in this way I acquired a field of knowledge which enabled me to view life according to my own judgement.
That was just as unpolitical as any philosophy whatsoever that one studies.
Q Did this bring you closer to the NSDAP which was developing more and more at this time from the point of view of your innerconvictions or in some outward connection?
A Not a single step. Before the seizure of power I rejected the NSDAP on the basis of my own convictions that it was not in accordance with the spirit of our people and because I always held the fear which did not leave me even after I joined that party, the worry that it would lead us into misfortune. Regardless of that, I at that time rejected tying myself to any political party. I knew the party program and knew that already the attempt to realize it, would inevitably lead us into the most difficult situations. That was my conviction, and I considered these endeavors to be a Utopian, and I did not believe that others could seriously believe in it either. I could not imagine that at all. For that reason, of course, I had no grounds to make this knowledge that I had acquired out of purely scientific interest on the racial question, to carry this into the political sphere of tendencies which I considered to be dangerous.
Q In what way did your conception distinguish itself from the ideas of the NSDAP on the racial question?
A In that question I was looking for clarity, without any idea of politics. As for the NSDAP, the racial problem was one of the most central political problems, and by it was systematically and methodically used in its political struggle. The racial problem was being used as a means to an end, in order to gain political power. With that it was removed from the field or sphere of a quiet and scientific inquiry.
Q Did you know the weekly journal, "Der Stuermer"?
A "Der Stuermer" was, I believe, a newspaper that was known throughout all Europe, not because of its contents, but because of its methods.