THE PRESIDENT: Of course not. That's all.
BY DR. BRIEGER:
Q. Do you know of a case where the police within the area of the district court of appeals of Stuttgart concerning a defendant who had been indicted before the special court --- that they said that the person who had been acquitted would be shot or otherwise killed?
A. No.
Q. Would you tell us something about the case of Louisa Toni, please?
A. I was the reporting judge in that case. The case was tried before the special court and was tried at Friederichshafen. Louisa Toni was a young girl. She was somewhere between twenty-one and twentyfive. She was an Italian girl and she was charged with plundering. The facts which came out at the trial, as far as I remember .... Of course, I can only tell you from my recollection because, unfortunately, all my documents have been lost during the air-raids. Well, it was like this. Louisa Toni at Friedrichshafen had lived in a girls hostel. During the air raid, the girls' hostel and several other houses around it, among them a shop, were damaged. Some residential houses were also damaged. Houses were set afire and Louisa Toni helped in the rescue work and she worked pretty hard. While still engaged in that work, however, she had made up her mind to take a few things which she needed. I can't remember now whether her own things had been lost luring that attack or whether she simply expected to lose them during that air raid. At any rate, while she was working there, salvaging these things, she had already made this plan and, in fact, she carried it out. All the houses were afire and immediately after the alarm, or perhaps it was during a lull. During that lull, people had put the things removed from the houses in a garden opposite. Louisa Toni, during that time -that is to say, on the very same night and without any reason, took a few things from the garden. I don't really know what things they were, and she put them in a house next door.
I don't know whether the things were from this shop. One of the things she had taken was a trunk, and in that trunk, were clothes, underclothes, some of the things belonged to the girls who had been living in the girls' hostel and some of them were clothes. Well, I don't remember whether they were clothes at all. Some were just pieces of fabric. They may have come from that shop, some of the clothes belonged to other people. She put all these clothes, to whomever they belonged, into a trunk and wrapped some paper around which showed the white-green red Italian flag on it. She put it on the trunk to show it was her's. And she put the trunk ready in a certain place to carry it off with her the next morning. Those were the facts of the case. There was no doubt that they were the facts. Next morning when the refugees and those damaged by the air raid were moved off, she took that trunk with her. Ravensbruck, as a fact. That's where it was found later on. The question was, did the defendant, in the circumstances such as they were, did she commit a crime, or didn't she? When I examined the files, it was my view that girl who was still very young and still inexperienced, after the way she had at first helped in the rescue work, I came to the conclusion that the death sentence was very severe, and for cases of plundering, the mandatory sentence was death. Then I examined the jurisdiction of the Reich Supreme Court because I wanted to find out whether there was some way of getting around the death sentence. And after I had examined all the sentences and practices of the Reich Supreme Court, unfortunately I did not see any possibility to get out of that and, as far as the facts were concerned and as far as the jurisdiction of the days were concerned, I believe I examined the documents carefully.
Q. Please talk a little more loudly. Nobody can hear.
A. I didn't find any decisions by the Reich Supreme Court that gave me any possibility of getting out of the death sentence. As the facts were found out at the trial, the court was unable to find that any other fact existed but plundering, and therefore the law compelled me to pass the death sentence, but as the punishment seemed too hard for me, I, being, the reporting judge, immediately suggested that although we were compelled under law to pass the death sentence, that was too severe and that, therefore, we were bound officially to make a clemency plea.
Herr Cuhorst, as the presiding judge, and the other associate judge were immediately in agreement with me and he asked me to draft the clemency plea. I did that. In that clemency plea I stated why we thought the death sentence, which was mandatory too severe and, in other words, officially I suggested a clemency plea. I can no longer recall the text of that clemency plea.
Q. Do you know anything about the outcome of that clemency plea?
A. When the clemency plea had been made I heard no more about the matter. Nor did I ever see the clemency files and, therefore, I cannot say what was the outcome of it all, but I believe that clemency was granted. Anyhow, as far as I know, she was not executed.
THE PRESIDENT: May I ask you a question, please? Your study of the case was after the indictment had been filed, was it?
THE WITNESS: I didn't quite understand your first question. Would you mind repeating?
THE PRESIDENT: Was your study of the case made after the indictment was filed?
THE WITNESS: Yes, Your Honor. In the indictment the charge was plundering.
BY DR. BRIEGER:
Q. Did you play any part in the trial of a young Dutchman at Waldshut? Was that a case that was tried by the special court or by the Senate? Please tell us something about it.
A. I did work on a case before the senate, but it was not the case of one Dutchman but it was the case of twelve Dutchmen. They were young Dutchmen who were indicted by the general public prosecutor and, as far as I remember, the charge was under Article 91B, for sabotage and aiding and abetting the enemy, and also for crimes under the law for the protection of the armed forces.
I can tell you about it only from my memory. The Dutchmen were housed at a camp near Waldshut. They were fairly young people. In fact, I think there were students among them and I think, generally, they were between twenty and thirty years of age. As far as I remember, they had come to Germany because a labor exchange -- I don't know whether it was a German labor exchange or a Dutch labor exchange in the place where they lived -- asked them to apply voluntarily for work in Germany and they did apply. That was how they came to Waldshut and they were accommodated in a camp.
and one night, -- I don't remember for certain what night it was-those young men --- I must emphasize that they confessed their crime afterwards --- one night they came to an understanding that one night they would blow up the power plant where they worked. They decided they would throw the machinery of that plant into the Rhine and before doing so they were going to over power the other staff.
Somebody or other overheard their talk -- I don't remember who it was -- and anyhow later on the defendants confessed and the case looked so serious that we had to ask ourselves what are we going to do in this case? On the other hand, these young men made a very good impression and they did confess to their crime.
During the whole of the trial I was thinking the matter over and I was wondering how and whether one could help them and then I had the idea that perhaps one could help them by leaving the question open whether these young people actually were serious with that plan of theirs and other people shared my view and Cuhorst shared my view and Cuhorst suggested that one should have an inspection on the spot where the crime was to be committed to see whether, according to the local conditions, it would have been possible at all to carry out the plan. The court decided to make an inspection and it did make an inspection and as a result of that inspection and as a result of all our further negotiations, we were able to gain the conviction that act wasn't meant seriously and anyhow that was how it came to an acquittal. I can remember that one of the defendant's, further, some time later wrote to Amtsgerichtsrat Krebs, who was the prosecutor in the case-told him in a letter that he thanked him very much for the tolerance and for the mild treatment he had meted out to his son during the war.
Q. The setting of the inspection on the spot, was that due merely to the initiative of Cuhorst or was there an obligation under the law for cause to do so?
A. There was no obligation under the law, as far as I remember. It was Cuhorst's own initiative at which that inspection was undertaken.
DR. BRIEGER: Thank you. That is all I want to know about this case. For the information of the Tribunal, this was Case 38 on the Cuhorst list.
BY DR. BRIEGER:
Q. Witness, did you play any part in the conviction of the people who were involved in the so-called Penitentiary revolt? I am referring to the Mattes Case.
Please describe that case.
A. That Mattes Case, well, the last phase of that case I was the reporting judge. This case too I can only describe from my memory, and I have to go back to the very beginning of the case. The defendant Woessner had been in Schramberg and in Wuerrtemberg before 1933 a Communist member of the Paris council. After 1933, after the seizure of power, as far as I remember he was temporarily in protective custody. He was released from protective custody after having made the usual loyalty statement in which he promised that he would not commit any illicit acts and that he would be loyal towards the National Socialist State.
For several years in Schramberg and surroundings he set up Communist cells. He did engage in illegal Communist activities and I think he also distributed pamphlets. He had something to do with the seeing of courriers of or seeing other functionaries or something with meetings. Anyway, that went on for years and he was indicted. As far as I remember, he was indicted in 1937 or 1938 and the indictment was for preparation for high treason and he was sentenced to a penitentiary term which was moderate at that time. I think it was something between three and four years, but I can't tell you for certain because I don't have the files now. I have no documentary evidence nor do I remember exactly whether, in that first case, it was Cuhorst who was the presiding judge and whether I was the reporting judge. It is just possible that that first offense I simply know from memory because later on I dealt with the files of that case.
When Woessner had finished his term in the penitentiary, I believe at the beginning of 1940, that is, during the war, he was discharged. Probably there was a clemency plea made too, but I don't remember that for certain. At any rate, I think that his conduct was good in the penitentiary . Anyhow, it is striking that at the beginning of the war anyway, while the war was still on at all, he was discharged. He had hardly been discharged when Woessner again engaged in illegal Communistic activities in Schronberg.
As for details of the second offense, I just don't remember them; but I believe that again he held conversations -- I think he again set up cells, Communistic cells and distributed pamphlets. At any rate, he was again indicted for preparation for high treason and he came before the first penal senate. And now I think I can remember for certain that Cuhorst was the presiding judge and I was the report judge.
At that trial naturally the defendant Woessner was asked how it happened that he had done it as, after all, he knew perfectly well that under the law high treason was very severely punished. Furthermore, he had only just been discharged from prison. How was it that immediately after his discharge he again started to engage in Communistic illegal activities? I remember for certain that he told us that it happened like this. While he was in a penitentiary for the first time, he had decided quite definitely that never again he would engage in illegal activities. Again and again he told us that during those three or four years in the penitentiary he had only read National socialist Books and in particular Hitler's "Mein Kampf." He had read that from the first to the last page, in fact. He had realized that the teachings of Communism were erroneous and he had come to a stage where he had repudiated those theories completely. He would never again have become involved in Communist activities, unless a former acquaintance, a Communist, had run into him and had given him a pamphlet of some kind or other, and that was how he had become involved in this whole thing again.
How he had become involved I can't tell you for certain. I don't remember.
So as not to be held in contempt by his former acquaintance he again allowed himself to become involved in these matters and that was how he got into it all for a second time and how he was caught again; but he told us that he would never again engage in Communist activity and he promised he never would. And when -- I think it was presiding Judge Cuhorst -- when he asked him what he thought would happen to him if he continued in this way --
THE PRESIDENT: I wish that you could just give us the essence of these cases instead of telling what he said and somebody else said. We are not concerned with what Cuhorst asked him about what he would do if he got out. Make your statements short and concise and cover the facts without so much useless detail.
DR. BRIEGER: I would ask your indulgence for making these detailed questions and for standing up so close to this witness, but that is the only way he will understand me. I am now coming to Case 21 on the Cuhorst list.
BY DR. BRIEGER:
Q. Witness, what were the previous convictions of Woessner? Do you remember his previous convictions?
A. He had previous convictions of three to four years in the penitentiary for his first offense and for the second offense he was only sentenced to two years in the penitentiary.
Q. If I understand you correctly, both were sentenced together?
A. No, no.
Q. Was it the second or the third offense of Woessner?
A. No, no. In the meantime, just to tell you quite briefly, that was the Mattes Case. Mattes was a Communist functionary who, in Belgium until his arrest, had been involved very seriously in Communist activities until he was arrested after the German troops arrived in Belgium.
He had committed all the facts that make up Paragraph 83, Section 3 of the Criminal Code and he was sentenced to five years in the penitentiary for preparation for high treason and now those two were sent to the penitentiary at Ludwigsburg and there immediately they made contact and all over again at the penitentiary Communist cells were set up. They engaged in Communist activities. They talked to the other Communists and the two, after they had established these cells, also wrote out a pamphlet on account of the fact that at that time Russia had entered into the war. He pinched some paper and he wrote a statement on that paper. I don't know exactly what he said in that statement. I don't know any details but he did say on that bit of paper that now that Russia had entered the war, there was going to be a turn in the history of the war. Germany would collapse and he said that the victory of Bolshevism was now a sure thing and that with that victory Communism for which he was longing, Communism would come and there would be a revolution and there would be a dictatorship of the Proletariat and that would be so not only in Germany but all over Europe and that would eventually mean all over the world.
That pamphlet he passed on to Mattes intending him to pass it on to the other Communists and also to other prisoners, another prisoner saw Woessner passing that pamphlet, or rather giving that pamphlet to Mattes and Mattes, on his part, saw that other prisoners had observed them too and that was why he did not have the courage to pass on that pamphlet.
Therefore, he immediately went to the lavatory. That was where he went with the text of the pamphlet and then he threw it down the lavatory and he pulled the chain and he hoped it would go down with the water, but it didn't happen. The other prisoner who noticed him receiving that pamphlet immediately after him entered the lavatory and there in the water found the bits of paper. He immediately informed the chief warden of the prison and that was how the whole thing was found out.
The two defendants not together --- separately -- the cases were heard separately because different questions were going to be asked of the two people -- now for the third time they came before the Penal Senate. Woessner denied everything. He put other co-defendants under suspicion and Mattes, as a witness, lied and denied although the facts were proved beyond all doubt, and he also maligned other prisoners and he did so in such a way that really it was nasty. Really it was nasty the way he cast suspicion on others.
They denied everything because now they knew what was at stake because Woessner had been told that at his previous trial.
Well, there was gain an indictment filed and this time the indictment was for preparation of high treason, undermining of military morale under Article *V, Section I of the special war time penal law and Hapitual Criminal Law of 1941. The judges discussed the matter in detail; the facts were proved beyond all doubt. All facts of the case were discussed in relationship to the individual laws that might apply and the penal Senate in the case of Woessner, who had been twice previously sentenced for preparation of high treason, arrived at the conclusion that again it had been preparation of high treason; that he also had violated the undermining of military morale law and I remember quite clearly that it was rather doubtful whether one could assume that pamphlet, which naturally could be described as undermining and which was a very dangerous at the penitentiary, I remember it was very doubtful whether one could assume that this was undermining of military morale in public and after a long time the Penal Senate arrived at the conclusion that it was possible that prisoners, after their release, might possibly spread the text of this pamphlet to the public in general and also the prisoners went out to work and there they met other Germans who were not inmates of the prison and anyhow it was quite obvious that it was the intention of Woessner to spread the contents of that pamphlet because otherwise he would never have written that pamphlet. And that was why we arrived at the conviction after a very thorough examination of the case-that Woessner was a habitual criminal within the meaning of the law. And when we had agreed that he was a habitual criminal, of necessity the death sentence had to be passed.
In the case of Mattes it was similar. Mattes had already received a five year penitentiary term. The first offense of Mattes where I also was the reporting judge and where Cuhorst too was the presiding judge, had been so serious that at that time one allowed extenuating circum stances only because, after all, that was the first offense of preparation for high treason.
That was why he was only sentenced to five years in the penitentiary; but in the case of the second offense, after all one had to remember that it was a second offense and further it was found that he had tried to make his fiancee who was quite innocent, commit purgery which was a very nasty matter.
One also had to remember that he had been favoring the enemy and in the view of the court, after all angles had been discussed, one arrived at the conclusion that this was preparation for high treason and undermining of military morale. I am not so sure whether we did assume undermining of military morale --
THE PRESIDENT: Anyway you sentenced him to death; is that right?
THE WITNESS: Yes, yes, your Honor.
BY DR. BRIEGER:
Q. Did any of this happen before he had finished his penitentiary term, for instance, this business about making his fiancee commit perjury? Was that before?
A. Persuading his fiancee to commit perjury, I believe that was while he was in prison pending trial. I believe it was before he committed his first offense but I can't tell you for sure.
Q. Were both men sentenced to death on the basis of their Communist propaganda work at the penitentiary only or because those further aggravating elements had to be taken into consideration too?
THE PRESIDENT: The witness has explained that sufficiently and at great length.
BY DR. BRIEGER: In the District of Stuttgart did you hear of any extraordinary appeals or nullity pleas in favor of defendants?
A. No. I never heard of anything of the kind.
THE PRESIDENT: You have answered the question.
BY DR. BRIEGER:
Q. Did Cuhorst attend executions and, as a witness has said here, with a stop-watch in his hand? Please give us a general reply to that question to begin with.
A. As far as I know Cuhorst never attended any executions. I never heard that he did.
Q. Some people have said that Cuhorst lived rather well. What do you know about that so-called inclination of his to live well?
THE PRESIDENT: Did Cuhorst live well? We hope he did. Pass it by. Don't waste your time.
BY DR. BRIEGER:
Q. What was Cuhorst's attitude concerning the re-transfer of people, who had been acquitted, to the police?
A. As far as I know there was an order to that effect. However, I never saw it myself. A prisoner who had been acquitted by the courts -a political prisoner -- I believe there was an order that they had to be returned to the police to examine the question of protective custody. I never read that order myself, but I believe that was the custom. I think it was a custom and Cuhorst --- I have to explain this --contrary --
THE PRESIDENT: Wait a minute. Will you repeat the question? Let me hear your question and a brief answer.
DR. BRIEGER: I may assume that the Court is familiar with the word Rueckueberstellung", transfer, and I am now asking you, witness, what was Cuhorst's attitude concerning the question of retransferring defendants, who had been acquitted, to the police?
A. In cases where a defendant had been acquitted, who had been tried for a political offense, Cuhorst, contrary to an official instruction and contrary to the custom of other presiding judges, as far as I know and as far as I experienced it, regularly abstained from retransferring acquitted defendants to the Gestapo for the purpose of re-examing the question of protective custody.
BY DR. BRIEGER:
Q. Was Cuhorst the superior of the judges at the Senate and at the Special Court?
A. No, no. He was the presiding judge of the Penal Senate, but he was not a superior of the judges.
Q. Now, my last question, witness: There is a prosecution affidavit which you deposed. When you were interrogated at the time or before or after, were you told anything about the question as to whether Cuhorst had incriminated any other judges?
MR. LAFOLLETTE: Just a minute, witness. I object, Your Honor, to any examination which addresses itself to specific statements in this witness' affidavit for the reason that it should be essentially crossexamination and should have been disposed of prior to this time. This is a conduct of direct examination of this witness on behalf of the defendant. Any matters relating to the manner in which the affidavit was obtained or any facts therein set out should have been done by cross-examination.
THE PRESIDENT: The Tribunal is of the opinion that you should not report to the cross-examination which you had an opportunity to conduct earlier and did not conduct. You may ask direct questions as to facts from this witness without references to the affidavit.
BY DR. BRIEGER:
Q. Were you at any time told that Cuhorst had incriminated you or had incriminated other judges?
MR. LAFOLLETTE: I object, your Honor. That is exactly the same thing he is asking Mr. Cuhorst in connection with the first affidavit. He had ample opportunity to cross-examine and we let him bring anybody up here he wanted to.
DR. BRIEGER: I did not refer to the affidavit in that question. I ask the Tribunal to give its ruling.
MR. LAFOLLETTE: He was talking about who he was told by somebody to do something. It has nothing to do with this examination.
THE PRESIDENT: We haven't the affidavit before us.
DR. BRIEGER: That affidavit was submitted to the Tribunal and I can give you the number. I refer you to Exhibit 213, NG-464. The affidavit was deposed on the 23 November 1946.
THE PRESIDENT: We are not familiar with any rule of this Court nor any other Court which excludes from a direct examination all of the subject matter which could have been covered by some previous crossexamination and I have stated the ruling of the Tribunal once. He may ask concerning what is popularly called the objective facts without referring to the affidavit. If it be true that those facts may contradict something in the affidavit, this Tribunal can't stop now to examine that question and the witness may answer.
MR. LAFOLLETTE: If your Honor please, I don't think I have made myself clear. This last question was addressed to circumstances surrounding the taking of the first affidavit. I certainly do not think that was within the purview of any kind of examination.
THE PRESIDENT: You mean it relates to the circumstances under which the affidavit was taken?
MR. LAFOLLETTE: Exactly. He asked him: "Were you told by somebody when you gave this affidavit that Cuhorst had done something to you?" He is referring to the first affidavit and I am very insistent that I am correct in my objection to that kind of practice. The circumstances under which this first affidavit was given certainly should have been gone into on cross-examination and that is the basis of my objection and it will be applied to five or six affidavits which are going to be offered, which have the same attempt in there to bring up those matters.
DR. BRIEGER: I don't know whether and at what time the witness was asked, and I am not able to say whether there was any connection, and that is why I am asking quite generally whether at any time, witness, you were told that Cuhorst had incriminated Stuttgart judges? Please witness, answer my question.
THE PRESIDENT: Now just a moment. Your question -be still, witness, until you are instructed. Your question is whether anyone has ever told this witness that Cuhorst had incriminated other judges?
DR. BRIEGER: Yes.
THE PRESIDENT: What does that have to do with the circumstances under which the affidavit was taken? Do you mean does it show duress or anything of that sort?
DR. BRIEGER: In that case I have to specify my question a bit. Did the interrogator of the Prosecution told you anything about that?
HR. LAFOLLETTE: Now, if Your Honor please, I certainly think that goes to investigation of -
THE PRESIDENT: The objection is sustained.
HR. LAFOLLETTE: And I shall continue to offer the same objection to that kind of question.
THE PRESIDENT: The Court will continue to rule as it deems proper whenever you object. This last question appears to relate to statements made by an investigator to this witness at the time when the affidavit was taken, and the objection is sustained, and you will not go into the matter.
BY DR. BRIEGER:
Q: Quite a different matter. Did Cuhorst have a stopwatch?
A: As far as I know, he didn't have one.
THE PRESIDENT: You have asked that question before.
DR. BRIEGER: Thank you, witness.
CROSS EXAMINATION BY MR. LAFOLLETTE:
Q: Witness, will you tell me was it an accepted practice of the first Penal Senate that when the judges debated and arrived at their decision on the guild and the penalty, did they also at that same time agree as to what position should be taken on any clemency plea?
A: Well, this is how it was. In the case of death sentences the court in every case used to have to give its view. I believe that is how it was. I believe they had to give their own view on the clemency question, but later on that was changed and later on it was the presiding judge allne who had to give his view on the clemency plea, but as a rule the presiding judge asked the court, or at least the reporting judge, what their opinion was. Whether that was always done, I don't know.
Q: And the time of doing that was at the same time that the sentence was agreed upon or prepared for announcement in open court, is that right?
A: Yes. That was usually when the verdict was discussed.
Q: Yes. Now you discussed the defendant's attitude on the clemency matter and you discussed the relative severity of sentence, particularly in cases of undermining military morale in the first sentence and the second. I will ask you, do you know the defendant's customary attitude towards a clemency plea where a death sentence had been given? After a death sentence had been agreed upon, what was his attitude toward the clemency plea in the great number of cases?
A: Well, in cases where under the law the death sentence was mandatory and where, therefore, only the death sentence could be passed, in such cases as a rule the offense had been so serious that it was hardly a case of considering clemency. In cases where the law left it to the discretion of the court whether the death sentence was to be passed or not -- and I myself never handled such cases in the Penal Senate -- well -
Q: I am just asking you about the defendant Cuhorst's attitude in the cases in which you sat, if you remember. Was he often for clemency or more often against, or what was his attitude? All I want to know is the facts.
A: Well, that is difficult to say because I only worked as a judge with Cuhorst presiding only very rarely. In the Togni case he immediately was in favor of clemency. What his attitude was in other cases, I can't tell you because I don't remember any particulars.
Q: Now let me ask you another thing. You stated that in your opinion under the Indictment which was filed in the Togni case, alleging plundering, that the court had no alternative under that indictment but to find the defendant either guilty of plundering or not guilty. Isn't it a fact that a German court always had the right to disregard the indictment and find a defendant guilty of any lesser offense? Couldn't you have found this girl guilty of simple theft, notwithstanding the indictment?
A: Yes. Yes, naturally the court was never bound by the indictment, but the court was bound by the evidence, of course and by the facts which were estimated in the course of the trial, and according to those facts, according to the circumstances of the case it was not possible. It was simply impossible in the Togni case to pass any other sentence because the facts of plundering according to the legal practice of the time, such as it was known to others and myself, existed, and if a case of plundering had occurred, then the law did not allow for any other sentence but the death sentence.
Q: It did not? Weren't you permitted to find that goods had been stolen and to decide of your own power that you would not apply the plundering statute and find theft? Isn't that the law? Didn't you have the right to do it?
A: No. If the court according to the facts which had been established at the final and to which in this case the defendant had exploited the conditions of an air raid or immediately after such an air raid and had appropriated objects, that meant that she had plundered. If the court found that it was a case of plundering, then the court had to pass the death sentence. If in our conviction plundering had been committed, we could not ignore the law. He were bound by the law.
Q: Now, is "Deutsches Recht" a recognized publication containing decisions of the Reich Supreme Court?
A: I know "Deutsches Recht". Yes, I do.
Q: I wish you would look at a case which is marked in "Deutsches Recht" of the 2nd of September, 1944, at page 660.
A: Yes, thank you.
Q: That is an opinion of a judgment by the Reich Supreme Court on May 23, 1944. It is on page 660.
A: Yes.
Q: Now -- yes. The Roman figure II there.
A: Yes.
Q: And it reads: "The facts as established in the judgment -- "the court is speaking of the lower court judgment -
"are not sufficient for the decision that the defendant is guilty of a crime according to Section I of the Decree Against Public Enemies."
Then there is a little paragraph marked "a", a small "a", and a little paragraph marked a small "b". I direct your attention to small "b" now.
"For the conviction under the Decree Against Public Enemies, it is necessary that the offender have the characteristics of a public enemy." Is that a proper statement of the law?
A: Well, that isn't actually said in the law, but concerning the characteristics of a public enemy, well, under the National Socialist -- well, that was a much disputed question, that question of the personality of the offender, a question which was discussed a very great deal under the National Socialist regime.
Q: Yes. Now, well, let me ask you: there are two conditions laid down, one of them under "a" which I will ask you to read in a few minutes, but also "b" that for the conviction of a looter under Section I it is necessary that the offender have the characteristics of a public enemy. Tell me what facts were present from which you found that Louisa Togni had the characteristics of a public enemy? You tell me what facts you found.
A: Well, that was the very much disputed point in the legal practice of the Reich Supreme Court as to what one should understand by "personality", by "type of offender". The Reich Supreme Court for quite a long time had taken the view that the type of offense in itself might characterize a person as a public enemy. For example a person who during an air raid looted the property of people who had lost everything, by doing that proved to have characteristics of a public enemy.