He refused to carry out the work he was told to do. He made offensive and insulting remarks to the farmer and there had been quite a number of arguments and clashes between him and the farmer.
Once again his employer criticized his performance and there was an argument. In the course of that argument the Pole used extremely rude language. The farmer slapped his face; whereupon the Pole took up a dung fork and the farmer, who was unarmed, was afraid that the Pole might attack him and ran away. All the same, the Pole ran after him, overtook him, and threw him down on the ground with that fork. The farmer sustained injuries which were dangerous to life. He spent months on the sick bed. He did not die in the end but he remained lame. That offense by the Pole was considered a violent crime under Article I of the law against violent criminals and he was sentenced to death.
DR. SCHUBERG: That testimony by this witness was corroborated in its essential points by the witness Lutz here, transcript Page 3705.
BY DR. SCHUBERT:
Q. Witness, were trials of foreigners conducted in the same way in which the trials of Germans were conducted? Were the facts investigated as thoroughly as they were in the cases of German defendants?
A. Yes. It was done in exactly the same way. In the case of foreigners, too, and also in the case of Poles proceedings were entirely in accordance with the German Penal Code of Procedure.
Q. At the special court did you observe particular points of view from which you dealt with crimes against the Malicious Acts Law?
A. Yes.
THE PRESIDENT: Will you postpone your answer until after the recess? Fifteen minutes recess.
(A recess was taken.)
THE MARSHALL: The Tribunal is again in session.
BY DR. SCHUBERT:
Q. Witness, we had been discussing cases of foreigners, and you wanted to say something about the jurisdiction of the special courts.
A. It was the constant jurisdiction of the special court that malicious acts committed by foreigners should be dealt with considerably more leniently than in the case of Germans. I myself found a great many of such cases among the three hundred files of which I checked when this procedure was followed.
Q. Did you frequently act as a judge in criminal cases against Poles?
A. No, very seldom. The reason was that these Polish criminal cases were almost exclusively dealt with in the rural, i. e. outside local court districts because there it was that the Poles worked as agricultural workers. Until the autumn of 1943, as I explained yesterday, I did not travel very much because of my party offices. For practical purposes I was relieved of all sessions that took place outside; I was called in very seldom only. Further-more from January 1943 Poles were no longer turned over to the Justice Administration. As for 1943 almost only such Polish cases were dealt with by us which had been pending. Cases which did not actually occur in 1943 were not turned over to our administration. Apart from the Polish cases described here, I can recall two specific cases, one of which occurred before the issuance of the Polish circular decree. He had been charged under paragraph 1 of the decree about acts of violence because he had, if I remember rightly, hit his employer, a farmer, with the stem of his fork, his pitchfork, rather badly. But the Pole was in a position to prove that he had been provoked by the unfair treatment which the farmer had meted out to him and he was then only sentenced for dangerous assault to a term in prison. The other case I still recall was the case of a female Pole. She had been indicted because she was alleged to have caused black-slaughtering of a cow by putting poison in the fodder. This was an extremely long-winded trial, and the Polish woman was acquitted because there was not sufficient evidence available that she had deliberately put this poisoning stuff into the fodder.
THE PRESIDENT: What was the disposition of the criminal cases against Poles after the time in 1933 to which you refer?
JUDGE BLAIR: 1943.
THE PRESIDENT: 1943. You said they didn't come to your court after the time in 1943. What was done with those Polish cases after that time?
A. As far as I know, these Poles were handed over to the Police after 1943--with the exception of those cases which had been brought to our notice previously, either from the prosecution or the court itself.
THE PRESIDENT: Do you know under what law or decree that was done?
A. I am afraid I do not know that, Your Honor.
THE PRESIDENT: It was a separate--it was a different provision from the one which related to Jews; was it not?
A. Yes, certainly.
DR. SCHUBERT: If the Tribunal please, I have now dealt with the general questions touching on this defendant. I shall now come to the various cases which the Prosecution has quoted. I want to ask the Court's permission, for a brief period of time, to interrupt the examination of the defendant as a witness and to submit now my Document Book II, which, for the larger part, contains general principles which were of judicial importance and I shall then immediately continue with the examination of the witness.
THE PRESIDENT: These are the first documents you have presented, are they not? Have you introduced your Document Book I before?
DR. SCHUBERT: Yes.
DR. SCHUBERT: The first document in my Document Book II is Document No. 8, which will be Exhibit No. 30. It contains an excerpt-
THE PRESIDENT: It's your Document 8, did you say?
DR. SCHUBERT: Document 8.
THE PRESIDENT: Exhibit 30.
DR. SCHUBERT: It's Exhibit 30.
THE PRESIDENT: All right.
DR. SCHUBERT: It contains an excerpt from the organizational book of the NSDAP, and I should like to draw the Tribunal's attention particularly to the fact that here the question has been discussed who was competent to appoint the man in charge of an office in the Gauleitung; and the man in charge of a main department (Hauptstelle) in an office of the Gauleiter. I draw attention to page 4 and the chart on page 5.
Then, I come to Document 197, which is Exhibit 31. This document contains an article on the question of the criminal liability of a judge for the application of laws that are in contrast to the general idea of morality. Here I wish to draw the Court's special attention to page 11 where under Roman V, it is especially emphasized that the legal provisions concerning illegal orders does not apply to a judge.
The next document, 24, will be Exhibit 32. This again is an essay about the responsibility of a judge, and I should like to remark that both the essays quoted by me now have been published since the end of the war.
THE PRESIDENT: These Exhibits 30, 31 and 32 are received.
DR. SCHUBERT: Document 167 will be Exhibit 33; it is a brief excerpt from a British law book by Salmond and it shows that British legal literature affirms the idea that a judge has no business to examine a law as to its moral implications.
This is followed by Document 169, which will be Exhibit 34. This contains a few excerpts from the German criminal code of procedure. The paragraphs quoted therein are of importance for the various cases.
THE PRESIDENT: Exhibits 33 and 34 are received.
DR. SCHUBERT: The next document is Document No. 186, which will be Exhibit 35. This contains a supplement to the code of criminal procedure as of 1st September, 1939, concerning the right of the court to turn down motions for the submission of evidence in certain cases.
Document No. 120 will be Exhibit 36. It contains circular decrees by the Reich Ministry of Justice concerning special courts.
THE PRESIDENT: Exhibits 35 and 36 are received.
DR. SCHUBERT: Document No. 156 will be Exhibit 37. It is an excerpt from the Reich Legal Gazette, an ordinance on the appointment of Reich Defense Commissioners. It is important for courts martials as the Reich Defense Commissioners appointed the courts martials.
THE PRESIDENT: It is received.
DR. SCHUBERT: Document 26 will be Exhibit 38. It is an excerpt from the Reich Legal Gazette of 1944, concerning the formation of what was called the German Volkssturm, the home guard, and on page 31 we find an ordinance on the status of the members of the home guard, the Volkssturm, which shows that members of that body were to be put on an equal footing with the Wehrmacht. I apologize, the document I have just been talking about was already Document 27, which will be Exhibit 39.
THE PRESIDENT: Exhibit 38 is received.
DR. SCHUBERT: And Document 27 will be Exhibit 39. I beg this document also to be received.
THE PRESIDENT: Received.
DR. SCHUBERT: Both documents are important for the question of the courts martial.
With Document 126 we come for the tasks of the special courts. Document 126 deals with the nullity pleas, and it contains a special point or two, regarding the fact that it is obligatory for the public prosecutor to investigate undisputed verdicts of the special courts on behalf of the defendant.
THE PRESIDENT: Received.
DR. SCHUBERT: That was Exhibit 40.
THE PRESIDENT: Yes.
DR. SCHUBERT: Document 121 is Exhibit 41. Here we have an excerpt from the book "German Criminal Law" which I would like to call the standard work on German Criminal Law in war times. This document informs us about the principles and the motivation of war time criminal law as they were published at the time.
THE PRESIDENT: Received.
DR. SCHUBERT: Exhibit 41. Document 172 will be Exhibit 42. It deals with the problem of how offenses are be regarded in war time.
The next document is document no. 99 and it will be Exhibit 43. It is an article by the man in charge of the prosecution with the Reich Supreme Court on the legal policy in war time.
THE PRESIDENT: Exhibits 42 and 43 are received.
DR. SCHUBERT: Document 170 is to become Exhibit 44. It is an excerpt from an important German magazine on criminal law. It contains a report on the development of war time criminal law in Italy. Therefrom it becomes clear that in Italy similar decisions and regulations were issued as the German regulations against public enemies as f.i. the prohibition listen to foreign broadcasting stations.
THE PRESIDENT: Received.
DR. SCHUBERT: Document 101 will become Exhibit 45. It contains a report on war time penal law in France, and this shows that a law was issued there according to which crimes committed during the blackout could be punished with death.
The next Exhibit is 46, Document 158. This is the decree against public enemies.
Document No. 157 will be Exhibit 47; it is an excerpt from the German war economy decree.
Document 160 will be Exhibit 48. It is the decree about acts of violence.
Document 155 is Exhibit 49. It contains the paragraph 5 of the special war time penal regulations, as it was called-
THE PRESIDENT: Will you pause just a moment, please. I am getting behind. All right.
DR. SCHUBERT: Could Exhibits 46 to 49 be received?
THE PRESIDENT: Yes, all those exhibits are received.
DR. SCHUBERT: The next four documents contain the basis laws of the German war time penal code. Document 78 will be Exhibit 50. It is an excerpt from what is known as the Leipzig Commentary which has been mentioned in this trial before as the leading German commentary on penal law concerning the passing of sentences and particularly concerning the problem of how far judges were bound or had latitude in passing sentences. The excerpt speaks also on the problem of especially grave cases and less grave cases and on extenuating circumstances. The author is Professor Nagler who is a German criminologist of repute.
Document 115 will become Exhibit 51. Again, a document about the meting out of punishment; it is an essay by the chief public prosecutor at the Reich Supreme Court. There I should like to draw the Court's attention to the fact that this article shows how far the Reich Supreme Court in war time, in an increasing measure, interfered with the meting out of punishment even of lower courts, i.e. took the side of increasing the severity of sentences.
Document 187 will be Exhibit 52. It is a decision by the Reich Supreme Court which supports what the chief public prosecutor said in the essay mentioned before. Here, again, the Reich Supreme Court in the question of sentences interfered on the side of increasing the severity.
Document 166 will be Exhibit 53. It is an excerpt from a letter to the judges which has been submitted by the Prosecution. It is the comment by the Reich Minister of Justice concerning sentences.
THE PRESIDENT: These exhibits are received -- 50 to 53, inclusive.
DR. SCHUBERT: Document 102 will be Exhibit 54. Again a document about the amount of punishment and sentence. Here we are concerned with by a few affidavits submitted by the Prosecution, namely, whether the expert has any influence on the type of sentence.
THE PRESIDENT: Received.
DR. SCHUBERT: Then, we come to some documents which I submit within the scope of the general defense. Here we are concerned with documents which deal with the theory of the typical perpetrator. This theory in German penal law was of importance since 1937 or 1938, and in war time it originated from some decisions of the Reich Supreme Court, where the Reich Supreme Court described the type of the perpetration; and from there a general theory of the type of perpetrator grew which became particularly important in the application of the war time penal laws. In the first years the Reich Supreme Court frequently ruled that a perpetrator could only be punished under the severe war time laws if and when he represented the type of the public enemy or the violent criminal for instance.
Document 141 contains a fundamentally important essay by Professor Dahm, Leipzig, and I beg to offer this as Exhibit 55.
THE PRESIDENT: It is received.
DR. SCHUBERT: Document 123 will be Exhibit 56. Here we are concerned with the type of public enemy.
Document 82 will be Exhibit 57; it is a decision by the Reich Supreme Court concerning the type of public enemy.
THE PRESIDENT: Exhibits 56 and 57 are received.
DR. SCHUBERT: Document 130 will be Exhibit 58; again, a decision by the Reich Supreme Court about the type of public enemy.
THE PRESIDENT: Received.
Court No. III, Case No. III.
DR. SCHUBERT: Document 169 will be Exhibit 59. This is an interesting decision by the Reich Supreme Court concerning again the type of public enemy. There the Reich Supreme Court points out that the fact that there are no previous convictions and an honorable past need not present the perpetrator to be punished as a public enemy. Document 108 will escome Exhibit 60. It is an excerpt from a book concerning the type of perpetrator, one who is regarded as a violent criminal. Here misgivings are voiced concerning tno theory of the typical perpetrator. Document 68 will become Exhioit 61, again comments on the type of the violent criminal criminal as the perpetrator.
THE PRESIDENT: 59, 60 and 61 are received.
DR. SCHUBERT: Document 116 will be Exhibit 62, excerpts from an essay on the type of the habitual criminal.
THE PRESIDENT: It is received.
DR. SCHUBERT: Document 90, excerpt from an essay, the author is Dr. Schwarz who was a judge at the Reich Supreme Court, and he objects to the exaggerated application of the theory of the type of perpetrator. Document 90 is to be Exhibit 65.
THE PRESIDENT: I didn't get that last. Document 113?
DR. SCHUBERT: Document 113 will be Exhioit 64; it is an essay by Professor Klee.
THE PRESIDENT: Just a moment please. There seems to be a defect in Judge Blair's book, Dr. Schubert. It will have to be corrected later.
DR. SCHUBERT: If Your Honors please, I could give you my copy.
THE PRESIDENT: Go ahead.
DR. SCHUBERT: Thank you, Sir.
THE PRESIDENT: The last was Exhibit 64, which was Document 113. It is received.
DR. SCHUBERT: This is an essay by Professor Klee from where it becomes clear that the Reich Supreme Court, in the course of the war, began to agandon the theory of the perpetrator type. Finally a last document in this series is Document 149, which will become Exhibit 65, excerpts from a book published in 1947, a commentary to the Penal Code, which describes the development of theories of the perpetrator type and proves that today this theory has been abandoned. Document 122 will be Exhibit 66. This is an introduction by Minister Guertner on the decree concerning public enemies, which shows that high officials in the Justice Administration thought...
THE PRESIDENT: Just a moment. 122--it is by Freisler not Guertner, is it not?
DR. SCHUBERT: I'm sorry, Your Honor; there is a misunderstanding here. No,..
THE PRESIDENT: 122 is listed here as an excerpt..
DR. SCHUBERT: Yes, I can clear that up. That is an excerpt from a book. This is a standard work on German Penal Law in War time, edited by Freisler and others, who, all of them, wore in the Reich Ministry of Justice. The excerpt quoted by me here contains, however, some of a speech given by the then Reich Minister of Justice Gurtner, at a meeting of the presidents of Special Courts and public prosecutors on 24 October 1939.
THE PRESIDENT: 65 and 66 are received.
DR. SCHUBERT: Document 92 will be Exhioit 67. This contains reflections on the decree against public enemies. Document 45 will be Exhibit 68. These are directives issued by the Reich Ministry of Justice concerning procedures against public enemies.
THE PRESIDENT: 67 and 68 are received.
DR. SCHUBERT: Document 168 will be Exhibit 69, again an excerpt from a document submitted by the Prosecution, from a report by the general public prosecutor at Hamm, concerning cases against public enemies. The highly Interesting facts resulting therefrom apply quite generally to municipal districts, such as the district of Nurnberg.
THE PRESIDENT: Received.
DR. SCHUBERT: Document 117 is to become Exhibit 69, excerpt from an essay of the Chief Public Prosecutor of the Reich Supreme Court. I would like to draw special attention to Page 84, which is Page 2 of the original document, where the author describes the factual basis for various decisions of the Reich Supreme Court, and which he used for reasons of comparisions. Document 124 will be Exhibit 71.
THE PRESIDENT: 70 and 71 are received.
DR. SCHUBERT: Exhibit 71 deals with the problem when the exploitation of war-time conditions can be assumed by a court. Document 161 will be Exhibit 72, an excerpt from the Leipzig Commentary on the problem of habitual criminals. At the beginning, Paragraph 20-A of the Penal Code, and the frequently quoted paragraph 1 of the amendment are reproduced, and the problems resulting therefrom, are being commented upon.
THE PRESIDENT: It's received.
DR. SCHUBERT: Document 151 will be Exhibit 73, excerpt from von Schoenke's comments on the Penal Code, published in 1947. It makes it pleas that the principles quoted in the previous documents, particularly those principles established by the Reich Supreme Court concerning habitual criminals, are still being recognized today.
Document 41 will be Exhibit 74, comments on Paragraph 1, of what is known as the amendment to the Reich Penal Code.
THE PRESIDENT: 73 and 74 are received.
DR. SCHUBERT: Document 17 will be Exhibit 75, a decision by the Reich Supreme Court concerning Paragraph 1 of the amendment. Document 15 will be Exhioit 76, again a decision of the Reich Supreme Court concerning Paragraph 1 of the amendment, a fundamental decision which shows the principles that make the Reich Supreme Court concerning habitual criminals issue the death sentence. Document 13 will be Exhibit 77, a decision by the -Reich Supreme Court, again about the problem of the habitual criminal. Document 12 will be Exhibit 78, again a decision by the Reich Supreme Court, which explains that the value to be attached to the personality of the perpetrator is of decisive importance for the assumption that a man be a dangerous habitual criminal.
THE PRESIDENT: 75 to 78, inclusive, are all received.
DR. SCHUBERT: Document 137 will be Exhibit 79. Another decision of the Supreme Reich Court. This decision is of interest because it shows that in this case again the Reich Supreme Court intensified and increased the sentence inflicted by a lower court. Document 95 will be Exhibit 80. These are reflections on the war-time criminal law and the decree against violent criminals. And Document 143 will be Exhibit 81, again about the decree against violent criminals.
THE PRESIDENT: 79, 80, and 81 will be received. That complies the book does it not?
DR. SCHUBERT: Yes, it does. May I now continue to examine this witness?
THE PRESIDENT: Yes, you may.
OESCHEY RUDOLF (Defendant)-Resumed.
DIRECT EXAMINATION BY DR. SCHUBERT:
Q Witness, concering the last question put to you be the Tribunal, do you know anything about the fact whether the judicial administration turned over sales to the police for punishment after 1943, when the now regulation applied?
A The judicial administration did not turn over any Poles to the police.
Q Was the situation such that the police, which was first of all concerned with punishable acts from that time onwards, no longer reported Polish cases to the judicial administration?
A Yes.
BY THE PRESIDENT:
Q The judicial administration knew why they were nolonger being resorted didn't it?
A I beg your pardon?
Q I say they knew why the Ploish cases were no longer being submitted to the courts?
A That they were no longer reported? The judicial administration knew, of course, that they were no longer reported.
Q And they knew why, didn't they? They knew they were being turned over to the police instead of to the courts, didn't they?
A The police would investigate the case at first, and then in their own competence would deal with the Pole, i. e. they no longer turned him over to the court.
Q And that procedure was known to the courts, was it not?
A Yes, it was quite generally known.
BY DR. SCHUBERT:
Q Witness, let us now discuss the various cases with which you have been charged by the Prosecution. Please tell the Trib unal first, by virtue of what evidence you are going to make statements about these cases.
A In all cases, with the exception of a few which I shall specify, I have looked at the original court files, and my following statements will be based on those documents.
Q The prosecution in the affidavit of Pfaff, which is Exhibit 235 in Volume 3-I, on Page 53, discussed the death sentence reached under your chairmanship against Boehm, i. e. they objected to that sentence. Pfaff did not think this act deserved the death penalty. Will you please describe the case briefly?
A Boehm was an employee of the Reich Railways and was in the Luggage Department of that organization since 1939. In the autumn of 1943 he began to steal luggage and express parcels. From then onwards, until May, 1944, he, without interruption, stole parcels and trunks. In many cases he stole from damaged parcels. About twenty such thefts could be proved beyond doubt. As a matter of fact, he stole very much more, which became clear from the fact that when his flat was searched objects of all types were found, mainly clothes and underwear, which all came from thefts of this sort. They represented the stock of a small warehouse. As far as he did not deposit these articles somewhere he used then to exchange them for food.
Q What was the legal qualification given no this case by the courts?
A What Boehm did amounted, legally speaking, to a crime under Paragraph 4 of the Public Enemies act, in connection with theft. The decisive element was on the one hand the unusual increase of travelling, caused by war-time conditions, and the forwarding of luggage connected therewith; on the other hand, the lack of staff also caused by the war made if impossible to control and watch these officials of the Reich Railways. In addition there was the fact that the risk of losing luggage and parcels at the time of the crime had increased on account of the air-raids which reached deeper and deeper into Germany, which is the reason that any loss could not necessarily he explained by theft, and the risk of discovery was very much reduced for the thief.
These conditions made it easier for Bohm to commit his acts, and he exploited them deliberately. The damage done by this man could not be expressed in terms of money because the articles lost were, at that time, practically irreplaceable. Above all, it was particularly revolting that these acts made travelling highly insecure, and it undermined confidence in public utilities, which represented a burder on the minds of the population with additional cares and worries. All this had been taken into consideration. In other words, this was doubtlessly a crime under the Public Enemies regulation.
Q Why was he sentenced to death?
A The death sentence was arrived at because this was a particularly grave case. Apart from the unusual extent of the thefts and the extraordinary high damage inflicted therely, it had been taken into consideration that the thefts were committed for reasons of pure avarice and greed, that Boehm used his official position in order to carry out these thefts, that for months of end, although he realized clearly what consequences he might invoke, and despite his wife who kept warning him, he continued...
THE PRESIDENT: I think we've heard enough of that.
BY DR. SCHUBERT:
Q Did the public prosecution ask for the death sentence?
A The prosecution, from the beginning regarded the death sentence to be called for and made its application accordingly. By the way, the Prosecution went far beyond the usual qualifications and indicted him also as a dangerous criminal.
Q. But he was not sentenced to death as a dangerous habitual criminal, if I have understood you correctly.
A. No, only as a public enemy.
Q. Witness Ffaff says in Exhibit 235 that he had voted against the death sentence and you had forced your will upon him, quoting your position as the Gau Legal Consultant. Is that correct?
A. No, the sentence was pronounced unanimously. The case was so clear and unequivocally legal that no judge could possibly advocate any other sentence. For the rest I did neither in this nor in any other case, when we consulted about a verdict, invoke my position as the legal consultant of the Gau.
Q. Could you find out whether that case was on the list so frequently mentioned here before, of the Reich Ministry of Justice, Concerning clemency plea.
A. The case is quoted here as what is known as a clear case.
DR. SCHUBERT: The witness is referring here to Exhibit 255 of the Prosecution in Volume 3-L, on Page 66.
JUDGE HARDING: What is that Exhibit No. ?
DR. SCHUBERT: 255--two double five. I shall now come to the case of Giani and Sala, which has been mentioned here so often before-Giani and Sala. The case has been mentioned in Prosecution Exhibits 229, 230, and l49, and in the record on Page 2833. Giani and Sala were sentenced to death. Witnesses took exception to the fact that Giani and Sala, on the basis of inadequate circumstantial evidence, were sentenced to death. Please give us your comments about that.
A Giani and Sala--the former Frenchman and the latter an Walian--were indicted as members of a gang of thieves, among whom was a man called Bertrand. They had committed three definite burglaries, taking advantage of the blackout. Among the luggage of the defendants two objects were found, a small bag and a towel, which were identified by people who had been robbed as their property. Only those two pieces of circumstantial evidence were referred to by the witnesses whom we have heard here before. In actual fact, those two articles were among many pieces of circumstantial evidence. During the trial, which lasted two days, the Court found out this:
The Frenchman called Bertrand was known in his hometown as a habitual criminal. He, together with Giani and Sala, came to Germany in 1943 they took a dlat together which consisted of two rooms. Bertrand and his mistress, the co-defendant Leigeber, lived in one room; Giani and Sala lived in the other. Although from September 1943 all four of them did not do any work, they always had considerable sums of money on them and lived smartly. From the same period of time onwards, the criminal police of Nurnberg kept receiving reports of burglaries in the most striking manner, hardly a day passed, without a nocturnal burglary occurring in flats, shops, and so forth. In every case large quantities of merchandise and other articiles were stolen, and no single man could have carried them away alone. Therefore, there was no doubt that here we had a gang of thieves operating.
Co-defendant Leigeber, a woman, testified that Bertrand owned a large number of burglar's tools such as master keys, and so forth. She also testified that Bertrand, as well as Giani and Sala, always left the flat late in the evening with empty suitcases and returned in the small hours of the morning with full suitcases containing all sorts of articiles of merchandise.
In view of the obvious efforts on the part of the Leigeber woman not to incriminate the defendants, these statements appeared to be entirely credible.
At the beginning of November 1943, at midnight, there was a burglary in the tobacco shop of Fischer in Nurnberg, when tobacco to the amount of six hundred marks was stolen. It was proven entirely and clearly that Bertrand, Giani, and Sala were together in that.
Q Witness, excuse me for interrupting you, but perhaps you can give us a brief description now of the two pieces of circumstantial evidence which were found, and their significance. I think everything else is quite clear.
A In the luggage, as I said before, there was found a little linen bag and a towel. The towel came from a burglary committed in the apartment of a Frau Lacher. On that occasion the defendants had stolen a large amount of underwear, and the towel was identified by the lady as her property. The defendants were unable to furnish any reasonable explanation of the fact that the towel should have come into their hands. The same applied to the little linen bag. This came from a burglary committed in September of 1943 in the flat of witness Groher, where three hundred bottles of wine and hard liquor had been stolen. On that occasion this little linen bag was stolen, among other objects, from a chest of drawers. The defendants had no reasonable explanation of how they got hold of this linen bag.
Q Were there any other pieces of circumstantial evidences?
A Both Giani and Sala were typical liars. Sala even denied that he had burgled the tobacco shop of Fischer, although this had been proven beyond doubt by a large number of witnesses. Giani followed the same line, but he was not quite so well versed a liar as Sala, and he couldn't keep it up. When he was examined by the police and he found himself in a tight corner, he was ready to make an extensive confession. He then went off by motor car with a police officer, because he had volunteered to point out the various houses and shops where the buglaries had occurred. He directed the car to a house of that sort, but on the way he obviously changed his mind and told the police officer that he did not wish to make any more statements.
Q What were the conclusions arrived at by the Court?
A On the basis of the evidence at hand, I, as well as another associate judge--I beleive it has Hoffmann--was entirely certain that Giani and Sala, together with Bertrand, did not only commit those three burglaries which I have mentioned, but that they were that gang of burglars which had performed most of these burglaries which had not been found out at first. This was also affirmed by the striking fact that after the three--Giani, Sala and Bertrand--had been arrested, this series or burglaries ceased all of a sudden.
Q What were the legal Qualifications given by the Court?
A This came under Paragraph 2 of the Public Enemies Act, in conjunction with continuous burglaries. In view of the dangerousness of their activities, and in view of the great damage they had caused in order to lead the smart and carefree life of parasites, this amounted to a particularly grave case, and it was regarded as such by the prosecution from the very beginning.