Q. About that appeal, did you have anything to do with that decision?
A. That decision, was formally not correct, but substantially it is very interesting because by that decision the complaint against my arrest warrant was rejected; and rejected by the one person who now charges me with having issued that arrest warrant.
That was signed-- it happens to be signed by Mr. Ferber, who assorts that I had pulled a dirty deal with my arrest warrant.
Q. You yourself had nothing to do with that decision?
A. I had nothing to do with that decision; the case went on and was soon suspended after the defendant had boon interrogated, and that was one thing we didn't know when we issued the arrest warrant, he explained that for quite some time ho was in the army and it was granted him that he might not have been as well informed about the entire atmosphere around the question of Poles in Germany as one would have expected otherwise. The case was suspended on the 27th August, 1942, with the reason that it could not be proved that the defendant intended to demonstrate his opposition against the measures of the state concerning Poles.
Q. You have been charged that because that case was not successful, you had initiated a second proceeding, the one concerning the sermon. Will you please first state what the prosecution had decided already, on the 9th July, 1942, that is to say, before the end of the first proceeding. You find it on page 12 of the files, a disposition made by the prosecution on the 9th of July.
A. That is the worst part of the charges which are raised against me in this connection. As I have said, I can refute it by documents, by just mentioning several documents in chronological order which will clarify the connections. In the file concerned with the funeral of the Pole, on page 12, 9 Jul, 1942, there is a short disposition on the part of the prosecutor "here he requests a list of previous convictions, and political record. Therefore, for that funeral case, one wanted to have the political record of Schosser from the party. The prosecutor shouldn't have done that really, but he was now there and he committed that blunder, and that was how the whole thing started. It was prohibited to request any political record of a clergy an because one considered--one know generally that the clergy was against National Socialism; that was no secret; but now inspite of that, the party reacted upon that request and sent a certificate of that kind, not to mo, but to the prosecutor who requested it.
Q. What did the senior public prosecutor do? On page 14 of the file you will find an order.
A. An order of That?
Q. Page 14 of the funeral case-- documents concerning the funeral case. Immediately after the request--following the request for a certificate of political record.
A. That request is on page 12.
Q. On page 14 you will find and order by the senior public prosecutor.
A. That is a mistake.
Q It is in the file 948.
A It is not in there. What kind of an order is that supposed to have been?
Q It is a communication to the presiding judge of the Special Court concerning the cancellation of the arrest warrant; and the arrest warrant was actually canceled.
A The following files which are concerned with that matter are in the subsidiary files referring to case 948 from the year 1942. There are four files clipped together in the sane manner now as they were made out at the time. One document bears the date of 28 July 1942 and is a political evaluation of Leopold Schosser, made out by an Ortsgruppenleiter Stubenvoll. In that political certificate, by which evidently it was not intended to initiate penal proceedings, mention is made that that Priest had given a sermon about the false prophets and had spoken about the wolves in sheet's clothing. It was that sermon which was of importance later. That matter? which got into the hands of the prosecution through other files and was Immediately put into their files, was the cause for Prosecutor Hoffman -- who was also been heard here as a witness -- to issue the following order with two attachments. That is? together with the political certificate by the Ortsgruppenleiter and the communication from the Kreisleitung at Amberg? he transferred that to the Gestapo at Regensburg, with the request that they investigate the occurrences mentioned in the attached documents. The attached documents themselves were to be considered inter-office material from the prosecution.
That request meant that the prosecutor, who had found out about these occurrences from other files, made that the basis of a criminal proceeding against the clergyman Schosser. He did not want these connections to become publicly known? but considered them and wanted them to be treated as internal matters of the prosecution. That is the reason why he writes, therefore, that the material should be considered as such and should not be attached to the official files.
Accordingly, those measures were taken, as can be seen from the files dealing with the sermon. There we find, on page 1, according to information received by the Gestapo Office at Regensburg, Father Leopold Schosser of Vilseck, some time ago, is supposed to have made some remarks derogatory to the state, and Mayor Stubenvoll is mentioned as a witness. And then we immediately have a record of the investigation.
However, the four documents which have been the cause of that second proceeding with which I am charged -
THE PRESIDENT: I think probably the interpreter is unable to see the documents that you are exhibiting to him. After all, you are addressing the Court and not the interpreter.
Go ahead.
BY DR. KOESSL:
Q Witness, will you please briefly explain the following? By what you have explained on the basis of the files, you wanted to demonstrate that the case concerning the sermon had already been initiated at the time when the first case was about to end; is that correct?
A That is certainly correct, yes, yes. Before the first case was ended there was the first communication from the prosecutor, which was on 7 August 1942, yes, and. that was quite some time before the first case was concluded. However, the most important thing in this connection for me, because it has always been said that I had been the instigator for everything, is the following:
As to the institution of that second case, I did not know anything about it. I only got in contact with that case when, quite officially, the files were submitted to me in the same form as they a re here before us.
THE PRESIDENT: Let's go on to something else now.
BY DR. KOESSL:
Q What was the course of the second case, the case of the sermon? In that case serious charges wore also made against you, con corning the treatment of the clergyman Schosser.
Will you briefly describe the course of those proceedings and will you please state whether the part you took in that case justifies the charges leveled against you?
A In the further course of the proceedings that charge cannot appear when that case came before me on 25 August 1942, I issued the arrest warrant. We did not go as far at that time as the confession or the statements made by Schosser in the trial would have permitted us to go. If we had assumed that his entire sermon from beginning to end was directed against the wolves in sheep's clothing, we could have characterized the case as one of high treason and we would have had to pass it on, for that reason, to the competent authority. We only assumed that in the course of the sermon various doubtful statements had been made which had nothing to do with God the Father, and that was how it came to trial.
Nothing further happened. Investigations were carried out such as in every other case, and there was a defense counsel.
Q As to the course of the trial itself, now, various charges were leveled against you by the witness Schosser. First of all, it is alleged that you had used expressions attacking the profession of the clergy. Furthermore, with reference to the book by Rosenberg, you are supposed to have attacked his denomination. Will you please comment on these points concerning attacks against the profession and the religion of Schosser?
A Naturally, because I have a normal human brain in my head, I can no longer give a verbatim account......
THE PRESIDENT: Just a moment. The question is whether you made the statements which it is charged you made. Now, if you remember whether you made them or not, just tell us whether you remember, if you remember whether you did or did not make the statements charged against you. We are not concerned about your absence of any brain on your part.
THE WITNESS: Hr. President, may I be permitted to ask a question? I only wanted to explain that any statement or any expression only gets its meaning if it is seen in its context.............
THE PRESIDENT: We know that; we know that. Now just give us the context and the statement briefly.
THE WITNESS: Yes, Your Honor, I didn't want to do any more than that.
THE PRESIDENT: I think you can finish in two minutes.
BY DR. KOESSL:
If you look at the opinion, you will find points discussed there concerning the sermon, and reference is also made to the malicious attacks of Schosser against loading persons in the State. That will make it possible for you to find a connection with the statements with which you have been charged -
THE PRESIDENT: The two minutes have already gone by without any question and we will recess until tomorrow morning at 9:30.
(At 1630 hours, 21 August 1947, a recess was taken until 0930 hours, 22 August 1947)
Court No. III, Case No. 3.
Official Transcript of the American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 22 August 1947 - 0930-1630. The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom with the exception of the defendant Barnickel.
THE PRESIDENT: The defendant Barnickel was excused for yesterday at his request, made through his counsel. There was no excuse for him for today. Mr. Marshal, will you ascertain why the defendant Barnickel is absent and report to the Tribunal.
You may proceed.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued BY DR. KOESSL (Defense Counsel for the defendant Rothaug).
Q Witness, yesterday you stated that the second case against Schosser was initiated by the prosecution. Please show us, on the basis of the files, the document and the report wherein the prosecution itself states that it initiated that second case?
A That is a report by the senior public prosecutor, signed by Wilhelm Hoffman, and addressed to the general public prosecutor at Nurnberg of the 17th of October, 1942, and it contains the following sentence: "The matter was started because the occurrence was mentioned in a political report by the Ortsgruppe Filsegg which the witness Stubenvoll attached to the report 1/C SG 948 from the year 1942.
Q Now we want to continue, where did the session take place in the second case?
Court No. III, Case No. 3.
A In the town hall court at Amberg.
Q What parts of the population attended that session?
AAll categories of people. The court room was right in the center of the town and when once people had found out that there was something going on, they just came.
Q What was the composition of these people, according to their denominations ?
A The great majority of the population was Catholic.
Q Did you have to take certain considerations on account of that?
A Of course. One had to avoid anything which could hurt the religious feelings of these people. Cases against clergymen required a great deal of caution and a great deal of tact so that no wrong impressions were made, because it was generally considered undesirable to make the impression, in any way, that it was intended to injure the religious feelings of these people.
Q What in brief were the charges against Schosser and how did he defend himself against them?
A The charges did not refer to the entire sermon, the subject of which was false prophets, but two basic thoughts were mentioned. For one, the thought that the leading individuals - meaning in the state - intended to take the Catholic faith from the people. In addition to that, the defendant also was charged with having attacked the principle, prevailing in Germany, of religious freedom. That was the charge.
Q Schosser asserts that his sermon itself was really not the focus of interest, but that you had dealt emphatically with the matter of a funeral and you had included that in the case. Is that correct?
A The matter of the funeral was not the subject of the indictment so far as it was not considered a basis for any legal facts in connection with it, but it was merely mentioned in the course of the trial. It is correct that this matter was discussed in connection with the matters Court No. III, Case No. 3.contained in the indictment, but not in the manner that it was the most important part of the trial.
It was quite legally admissible to mention it, as I have mentioned.
Q Can you prove, from the files, that the prosecution submitted the files concerning the sermon question to the court?
A That can be seen from the file.
THE PRESIDENT: Is that file in evidence?
MR. WOOLEYHAN: No, your Honor, it is not.
BY DR. KOESSL:
Q The case was only discussed by the witness Schosser.
A By an order in the file SG 948 from the year 1942 (matter of the funeral), the prosecutor decided on the 27th of August, 1942, under III "Filed without subsidiary file", that the matter SD 1312 from 1942 that is the sermon matter - after that file had been returned, was to be attached. By way of that disposition, these files concerning the funeral were submitted by the prosecution as material of evidence, together with the sermon file, with the consequence that I received that material and had to discuss it with the Prosecution witness at the main trial. That was legally permitted at all times. The judge was authorized to touch upon matters which had become either the subject of amnesty, or where an acquittal had occurred, or on matters referring to cases that had been suspended, or where a sentence had been passed. He could touch upon all these matters in a different case and discuss them for the purposes of the case at hand. Whether that became the basis for an evaluation for that new trial - that, of course, could only evolve from that main trial and the discussions therein.
Q What was the basic purpose of discussing that question on your part?
Court No. III. Case No. 3.
A The fundamental purpose of discussing these matters was to specify the obligation that all individuals and all offices had to heed the measures and regulations issued by the state, and the final purpose was to establish what basic attitude the defendant himself had with regard to that problem.
Q In that connection, you are alleged to have said that it is necessary to be able to hate. Did you say that?
A Of the expression itself - that is to say, as to the literal expression - I have no definite recollection any more, but I know that, in connection with discussing these matters, I touched upon that thought. The context was about the following. As is well known, these measures which had been taken against Poles throughout the Reich were measures based primarily upon reasons of security, but as far as a separation of these Polish laborers from the German population was desired, those measures certainly were also based upon experiences from historical events, events that had occurred at the beginning of the war. Primarily, mass murders which were said to have been committed on people of the German race in Poland and which were expounded in the German press as the reasons for certain measures. We, of course, considered these reports to be correct. In addition to that, the general attitude, due to political tension in the past, played a certain part such as, for instance, the insurgent fights after the first world war and other things of that nature. The burning questions, however, were those mass murders at the beginning of the war and, in that connection, I may have talked about this sacred hate which was a fundamental thing just like love. It was also certain - I do not assume that the witness tells the untruth in this case - that I have said that even the Bible speaks of a God that hates.......
THE PRESIDENT: Well, we'll not go into any quotations from Holy Writ at this time. The trial does not involve the correctness of any such statements.
Court No, III, Case No, 3.
BY DR. KOESSL:
A The tendency expressed was connected with the following sentence. There were matters which neither peoples or individuals would ever forget. The purpose of discussing these questions was to establish a justification for the measures by the state which was important in that connection and that was the thing which my position as a judge in that state made necessary for me to do.
Q Did you say: "If it would go according to my wishes, the Poles would not be interred on German soil"?
A That also is not the way that passage taken out of its context may make it appear. I developed the idea here that Poles who carry out their duties and behave as they are expected to would not come to any harm and certainly, in that connection, just as in other cases, I pointed out that under all circumstances the obligations which the German population has toward the Poles should be carried out meticulously. In that connection, I probably referred to matters in which one did favors to the Poles and, in that connection, it is possible that I discussed the thought that it wasn't really necessary to permit the Poles to be buried in German cemeteries. In that connection, one has to consider that in this field in Germany there existed a great deal of intolerances based on historical reasons. Thus, for those reasons, in places where cemeteries are segregated by denominations, a Protestant cannot be buried in a Catholic cemetery, nor can a Catholic be buried in a Protestant cemetery.
THE PRESIDENT: Let me ask you a question, please. May I ask you a question, please?
Will you tell us specifically what the defendant in that case said which amounted to an attack upon the principle of the freedom of religion of which you spoke?
THE WITNESS: He mentioned in the sermon that all that was silly talk if one asserted that every man could become happy in his own fashion.
THE PRESIDENT: That would imply that he was defending the prin ciple of freedom of religion against interference by the state, would it not?
THE WITNESS: That wasn't the way this was understood.
BY DR. KOESSL:
Q Did you use the matter of the funeral in your opinion against Schosser?
A The discussion of the matters connected with that funeral affair did not produce anything positive against the defendant. In particular, it could not be established that the defendant knowingly had acted against regulations. That is to say.....
THE PRESIDENT (Interrupting): Just a moment. The witness already answered the question which counsel asked, before the question was asked. You need not go into it again.
DR. KOESSL: Could that matter about the funeral be gone into although the case had been suspended?
THE PRESIDENT: He's answered that question. He needn't answer it again.
BY DR. KOESSL:
Q Schosser says you had attacked him on account of his profession and you had attacked, in fact, the entire clerical profession. What was it about these alleged attacks?
A That just isn't so. As was required for every case, the interrogation was a conversation between myself and the defendant and, in the course of that conversation, I went into the question that people, if they wanted to go to church, wanted to hear about heavenly matters and didn't want to hear anything about politics. If he wanted to deal with questions of that kind, he shouldn't have become a clergyman, but a politician.
Q In connection with the education of youth, you are supposed to have reproached him that in the house of his parents, he hadn't been educated in the National Socialistic sense.
A That kind of a conversation would have been straight nonsense Court No. III, Case No. 3.because Schosser was born in 1909 and, at that time, there was no such thing as National Socialism.
Consequently, I could not blame him....
THE PRESIDENT (Interrupting): We understand your answer.
BY DR. KOESSL:
Q It is also asserted that you reproached him that the Catholics were saying that Protestants were going right to hell. Quite briefly, please.
A That again was an entirely different thought. I set forth that the German state has two great denominations and many others on the side and can, therefore, be neither Catholic or Protestant but only absolutely neutral. It was, of course, up to him personally, in his clerical field, to speak for the accuracy of his opinion and his faith. If you are of the opinion that all those who are of a different denomination will go to Hell, it is impossible for the state to share that opinion. A.s far as we are concerned, everybody will go right to Heaven.
Q Another question quite briefly. Will you tell us what was said about Rosenberg?
A The name Rosenberg was brought in in the following manner. Schosser himself referred to it because Ms line of defense was that he had not intended to attack the party by his statements but neopaganism and that he particularly intended to turn against Rosenberg with his statements. Thereupon I told him that at any time it was his right to refute the thoughts which Rosenberg developed in his book "Myths of the 20th Century" in his sermons and to prove that they were wrong, only he had to specify what he intended to refute and whom he intended to refute because that, of course, was the most important thing of the trial. He had to exclude any possibility that these things might be carried into the general political field. That was the basis for my thoughts.
Q Under what provisions was Schosser sentenced?
A On the basis of paragraph 130-A of the penal code and paragraph 2 of the Malicious Acts Law, that is to say, according to German law both provisions became applicable; as we would have said technically, there was a sort of a legal connection between the two laws.
Q Would Schosser have been punishable if there hadn't been a Malicious Act Law?
A Of course, on the basis of paragraph 130-A.
Q As far as the facts are concerned had the case Schosser been dealt with leniently or severely?
AAs far as the facts were concerned, it had been dealt with most leniently because the basis of suspicion, the assumption of guilt, was that the entire sermon of the false prophets and the roving wolves in all its structure and tendency was a political attack against the government. Schosser when he was heard here as a. witness more or less admitted that. In our evacuation, however, we went not that far, but we only referred to these two basic attacks.
Q You are alleged to have mentioned the case of a Pole in that trial. The case of a Pole whom you had sentenced the day before and who had made an attempt of suicide; and without mentioning the reason, you said, "how, we are bothered again with him." What do you know about that? - Do you still remember that?
A In connection with the justification alternated to be given on the grave severity which was necessary for reasons of security, I mentioned in connection with that the case which had been tried on the previous day. That is to say, as a reason, and therefore, it is quite impossible that I did not stale what it was all about at the time. It was a clear case of murder, not committed on a German, but on a Pole.
THE PRESIDENT: I don't think we need to go into that case. Do charge was made with reference to it.
BY DR. KOESSL:
Q Ferber mentions in the case against a clergyman which was tried in Cahm that Oeschey was supposed to have admired the manner in which you conducted the trial.
A I still do remember the case. It was also based on a sermon. It also was handled as cautiously and carefully as possible which becomes obvious already from the fact that the clergyman in his final words stated that he came here with great worries, and he was surprised about the liberal way in which he was permitted to explain his point of view, and he was leaving the courtroom with the firm conviction that we only had had the purpose to clarify the case fully. He also knew, he said, that we had to punish him because that was our duty, and he understood that according to the law the consequences which he had to beer were correct. In fact, that case could be conducted on a calm and reasonable basis, and it may have definitely be a pleasure to attend it. That was recognized by my associates, but not only by Oeschey but also by Ferber, if I remember correctly, who attended the session.
I do not understand why these matters today are used against us.
THE PRESIDENT: That was the answer. Go ahead.
BY DR. KOESSL:
Q We come now to the Grasser case. The grasser case is mentioned in Exhibit 139; also in Exhibit l56. Engert affidavit; Exhibit 221, affidavit Gross; Exhibit 237, affidavit Doebig; further in the testimony of Berber on page 1312 and 1412, 1665 to 1744, 1665 up to 1744 in the English transcript; also in Doebig's testimony, English transcript on page 1837 up to page 1887; and the testimony by Gross, English transcript page 2859 up to 2882.
I will hand you now the special court file Grasser, such as I have it hers. Did the Special Court already deal with the Case Crasser when the arrest warrant on 29 November 1941 was issued against Grasser? Look at page 28 and 29 of the file, please.
A Investigations by the Gestapo on 26 November 1941 were completed. On the 29th November 1941, the files were submitted to the investigating magistrate. At that time the Special Court at Nurnberg did not have the least to do with that matter.
Q How did the investigating judge characterize the offense of Grasser?
A The investigating magistrate in the arrest warrant established that a number of statements had been made wherein he saw undermining, Communistic propaganda, and he specified the offense as a crime on the basis of paragraph 83, section 2 of the Penal Code, preparation for high treason.
THE PRESIDENT: Isn't the grasser file in evidence as Exhibit 139?
DR. KOESSL: Yes.
THE PRESIDENT: Don't read from it then, we have read it already and we will read it more.
DR. KOESSL: Not all parts of it are submitted in evidence, Your Honor.
THE PRESIDENT: Use only those portions which have not been introduced in evidence, for the purpose of reading.
DR. KOESSL: Yes.
THE WITNESS: Mr. President, that arrest warrant has not been read.
THE PRESIDENT: If you want to introduce other portions of the document, introduce them as exhibits, and we will attach them to the other documents in the case, which will be much more beneficial to your client than to have him read them now.
THE WITNESS: I didn't really read it, Mr. President.
THE PRESIDENT: You summarized, which is exactly the same thing. That is merely a technical answer that you made.
BY DR. KOESSL:
Q Why did the offices which subsequently had to handle the case view the complex of charges in the Grasser case from a different point of view than the investigating magistrate?
Q Whoever dealt with the case alter the investigating magistrate, did not have a different view of the facts than the investigating magistrate because after the arrest procedure had been completed and the files were forwarded to the prosecution for further handling, the senior public prosecutor submitted the file to the Chief Reich prosecutor because in his opinion the offense appeared as preparation for high treason according to paragraph 83 section 2. He too was of the opinion that that case was on the criminal level, not merely on the level of a misdemeanor which one could have called it if one had considered the case as a so-called malicious offense. The Chief Reich Prosecutor did not evaluate the offense as a malicious offense, but he also had suspicions of a crime connected with high treason and by expressing that point of view he forwarded the files to the general prosecutor at Munich to be prosecuted as a case of preparation of high treason.
Q The witness Engert asserted that the case had been returned to the Special Court in Nurnberg as a malicious acts case.
A. Had the Chief Reich Prosecutor considered it a malicious act case, then, of course, he would have had to return it to the prosecution at Nurnberg, so that the prosecution in Nurnberg could prosecute it as a malicious act case for which it was competent. He did not do that, however, but sent the case to the general public prosecutor.
THE PRESIDENT: We are concerned only with the conduct of one person in connect on with these cases, and that is the defendant Rothaug. We haven't heard a ward about what the defendant has done in connection with that case. The views of some prosecutor as to how it should be tried has nothing to do at all with tie issue "which is before us. This is the end of the second week in which you have been going through this line of interrogation, and it is about time that it ended.
DR. KOESSL: We will be able to finish today, Your Honor.
BY DR. KOESSL:
Q. Why did the general public prosecutor at Munich transfer the case to the Special Court at Nurnberg?
THE PRESIDENT: Why are we concerned with that? We are not concerned with why it was transferred; if it was transferred, then it came to the defendant Rothaug.
BY DR. KOESSL:
Q. When did you had to deal with the case Grasser?
A. I first had to deal with the case Grosser after the indictment was filed with me, based on the legal principle of malicious acts having been committed. The case had one popularity, or rather a surprising element was apparent because me bad to ask oneself if that case had been in the hands of the general public prosecutor in Munich how did it happen to come before the Special Court in Nurnberg now, a court with which the general public prosecutor in Nurnberg had nothing to do with as such.
The reason for that was-
THE PRESIDENT: Just a moment. That is the very matter we were talking about. That is the very water concerning which the Tribunal just addressed counsel. You will be permitted to state whether you had anything to do with transferring it to the Special Court. If you didn't have anything to do with it, then we are unconcerned with the reasons which brought it to your court, and you needn't state them. Now, first, did you have anything to do with the transfer of the case to the Special Court?
A. Mr. President, the fact of that transfer -
THE PRESIDENT: Did. you have anything to do with it?
A. With the transfer itself?
THE PRESIDENT: Yes.
A. I had nothing to do with it, but -
THE PRESIDENT: No A.--but I have no possibility of defending myself if I can't clear up this point because this is the focal point of the whole matter, of the mistake made later in the evaluation.
THE PRESIDENT: All right, go ahead, if you think that is the case, you can elucidate.
BY DR. KOESSL:
Q. What was your first evaluation of the case?
A. First, as in every case which was submitted to me, I fixed the date for the rain trial.