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.
Needless to say, as far as the measure of the sentence was concerned, the fact that Giani and Sala were foreigners did not play any part. Any German would have had the same punishment inflicted upon him had he taken part in acts of this sort.
Q Was the case included on the list of clemency pleas to the ministry?
A Yes, as a clear case.
DR. SCHUBERT: The witness now has reference to Exhibit 255 on page 45. I shall now discuss the Jankovic case. J-A-N-K-O-V-I-C-. Here we have an excerpt from the files in Prosecution Exhibit 244, in Volume III-D, and also the affidavit by Brehm, which is Exhibit 485.
Q Exception is taken to your sentence and your conduct. Please describe this very, briefly.
A Jankovic was a Serb; by the end of 1944 he come to the Reich under highly suspicious circumstances. He had no reason whatsoever to leave his home country, and in view of the entire manner in which he conducted himself in Germany, no doubt was possible that he had come to Germany in order to work as a criminal. When he came to Nurnberg he attempted at once a clumsy swendling of ration tickets by denouncing two fictitious Serbs to the police, who he said had pinched his suitcases. In this case nothing much was done, and he was permitted to escape. He was given work, and he would have been able to pay for his needs by the fruits of his labor. However, on 9 and 11 November, 1944, he committed two burglaries in an air raid shelter, where he stole various articles of clothing and other articles deposited by a woman in protection against enemy air raids.
These burglaries were not committed by him because he was in need; he wanted to exchange the loot on the black market.
Q What were the legal qualifications attached to this deed?
A Legally speaking, these were two crimes under Par. 2 of the Public enemies Act in conjuction with theft, oreven heavy theft.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours)
THE MARSHAL: The Tribunal is again in session.
RUDOLF OESCHEY (Resumed) DIRECT EXAMINATION (Continued) BY DR. SCHUBERT:
Q Witness, we had gotten as far as the Jankovic case before lunch. How was it that the Court arrived at the death sentence in that case?
A The main reasons which led the Court to pass the death sentence are laid down in the judgment, which has been introduced as a document here. I should like to point out, however, that at that time thefts of that kind had become an epidemic, and it was very difficult to take steps to stop that epidemic. The distress which such thefts caused to the population was not to be under-estimated, and as Jankovic had acted out of very low motives, no extenuating circumstances existed which could have caused to abstain from passing the death sentence.
DR. SCHUBERT: The testimony of this witness is corroborated by the testimony of the witness Brehm, transcript page 3525.
Q Was the prosecution also of the opinion that that defendant merited the death sentence?
A Yes.
Q Witness, although that was an offense which did merit the death sentence, no official defense counsel was appointed for the defendant. Please tell us why that was not done.
AAt the middle of December 1944, the appointments of official defense counsel was discontinued by the so-called 4th compulsory simplification order.
From that time onward it was left to the discretion of the Court whether or not it wanted to appoint a defense counsel. The reason was that at that time, on account of the fact that so many people were being called up to the armed forces, there was a great shortage of suitable defense counsel. At the beginning we did not make any use of the new regulation and we continued to appoint defense counsel. However, that situation changed after the 2nd of January 1945. There was an air raid on Nurnberg on that day -- I think it was the biggest air raid on Nurnberg -- and in that raid a large number of lawyer's offices and apartments were destroyed. Furthermore, for many weeks neither mail nor telephone lines functioned, and on the day on which the date for the trial in the Jankovic case was set, it was impossible to get hold of any defense counsel. Some of my associates and I discussed the matter and we decided to apply that regulation, and to apply it in such a way that in the future in clear cases, that is to say, in cases where there were no factual or legal difficulties, we would no longer appoint a defense counsel but would leave it to the discretion of the defendant as to whether or not he wanted to apply for a defense counsel.
Under article 217 of the German Code of Criminal Procedure a defendant who is in detention when the indictment is sent to him must be asked whether he wishes to make an application for defense counsel, that is to say, whether he wants to make any application considering his defense in general, and in particular, whether he wants a defense counsel.
When the indictment was sent to Jankovic he too was asked about that, and that can be seen from the transcript which is in the files. Jankovic expressly stated that he had no applications of any kind to make.
Under those circumstances, in view of the situation existing at the time, we saw no cause to appoint a defense counsel. The case itself offered no difficulties of any kind because Jankovic had confessed.
Q Witness, just now you mentioned Article 217 of the Penal Code of Procedure. Don't you think you made a mistake there?
A Yes, you arc quite right, I meant to say 216; it is 216,
Q Was Jankovic executed?
A No. Jankovic managed to break out of his prison.
DR. SCHUBERT: Before I pass on to the next case, I should like to draw the attention of the Tribunal to the fact that when quoting from the lists on clemency matters dealt with at the Reich Ministry of Justice, I made a mistake. I was not referring to Prosecution Exhibit 255, but to Exhibit 252. I twice quoted from that exhibit; it is Exhibit 252, that is the exhibit from which I quoted.
Q Witness, I am now passing on to the Priner case, P-I-R-N-E-R. That was the case of a juvenile crime who was sentenced to death. The prosecution introduced Exhibits 419, 226, 229, and 479 in connection with that case. The witnesses criticized the death sentence because of the youthful age of the defendant and the fact that the Court's Physician's statements that he might be capable to improve were not taken into consideration. Please comment briefly on this case.
A In the Pirner case it is important that one should bear in mind the date of his birth. He was born on the 10th of May, 1925. In his early youth he already showed very doubtful inclinations. He was always leafing around. He was sent to approved schools, and he spent three years at one approved school where he had an opportunity to learn a trade, which should have enabled him to earn his living in a proper manner.
In April of 1943 -- that was soon after he had been released from the approved school -- his old inclinations broke out again. Without any reason he left his parents' home and his place of work. Fro some time he lived on his small savings, and then he came to the decision to earn his living in the future by burglaring.
Approximately from the middle of April 1943, that is to say, four weeks before he had completed his 18th year, and before he had become entirely responsible under penal law, until the 10th of May 1943 -- that was his 18th birthday -- he had carried out a total of thirteen burglaries in garden houses, block houses, etc.
Between the 10th of May and the 31st of May -- No, no; until the 10th of May he had only committed eight burglaries, and between the 10th of May and the 31st of May 1943 he had committed thirteen further burglaries in farmhouses, villas, and so forth. That made a total of 21 burglaries, and he had exploited the blackout in almost all of those burglaries. The value of the articles ho had stolen amounted to approximately eight thousand Reichsmarks. On the 31st of May he started on a new venture, and he was arrested.
Q What was the legal evaluation of that offense?
A. The prosecutor did not indict Pirner for 21 burglaries but indicted him for so-called continuous burglaries while exploiting the black. That is to say, under Article 2 of the Public Enemies Law. Those various burglaries had been merely parts of one continuous action and the Court took the same view.
Q. Do you mean to say that in this case there was a vivid discussion when the witnesses were examined and that was in reference to how the youth of the offender affected the legal evaluation of his offense? Did the age of the offender have any importance for the evaluation of the case and for the sentence that was passed, always bearing in mind that continuous action was assumed?
A. No, according to the law then in effect until January, 1944, the legal situation was this. A continuous offense is only completed when the last offense in a chain of offenses has been committed. The last offense of Pirner's had, been committed on the 31st of May, 1943. That is to say, at a time when he had already attained full responsibility before the law. In view of that situation, the same penal law had to be applied uniformly for the whole chain of offenses that applied to grownups.
Q. I shall introduce a number of documents in connection with this case. The testimony by the witnesses Mueller, Gros and Baeumler--were they correct in saying that Pirner should not have been sentenced under the law for juvenile heavy criminals?
A. The law for the protection of juvenile heavy criminals was eliminated alto other in evaluating the offense which Baeumler had committed. In effect, that law was not referred to either by the prosecutor in his indictment nor was the sentence that was passed on Pirner based on it, it was purely based on Article 2 of the law against public enemies.
Q. The witness Dr. Baur, Exhibit 175, states his expert opinion, according to which Pirner could not be made responsible for the deeds he committed before he was 18 years old in the same way in which a fully grown-up person could be made responsible for them, and he says that his view in that direction had not been taken into consideration when the judgment was passed, Is that correct?
A. That played no part. That question which Dr. Baur broached would have been of importance only if the Court had not assumed that a chain of offenses had been committed but if it had assumed that 21 independent burglaries had been committed and if the court concerning the eight burglaries which had bean committed before this birthday, had intended to apply the punishment provided in the law against public enemies.
Q. Dr. Baur on the re-direct examination, transcript page 3,605, said that if his expert opinion had been taken into consideration, Pirner would not have been sentenced to death. What do you have to say about that ?
A. That is incorrect and after all that is only the opinion of a doctor on a legal question. According to what I have said just now, that was not what mattered. For the rest, apparently Dr. Baur no longer kept the facts of the case in mind when he was examined here, and he will hardly be able to say that four weeks before his birthday a person is less mature in a spiritual and ebbical respect than he is four weeks later.
Q. How was it that the court passed the death sentence?
A. Pirner's character was quite definitely that of a gangster andon account of the many burglaries he had committed and on account of the great damage he had done, according to the legal practice of the Reich Supreme Court, there w s no doubt that this was a particularly serious case under Article 2 of the Public Enemies Law.
Consequently, we had to pass the death sentence in accordance with that practice. I should just like to point out that those consequences would have had to be drawn even if one had only taken into account the 14 burglaries which Pirner committed after his 18th birthday for all those burglaries were much more serious than the first eight which he had committed before the 10th of May, 1943.
Q. Did the Prosecution take the same view of the case?
A. Yes.
Q. We are now coming to the Schnaus case. The prosecution has introduced Exhibit 149, 479 main those exhibits criticism is container about this sentence that was passed when you were the presiding judge. Please briefly describe the facts of the case.
A. Schnaus was an anti-social element. Since1930, he had no longer done any proper work. He was just loofing around. He had committed fraud ancho had previous convictions on account of that. He was not looking after his wife and his chile and he was neglecting them to such an extent that the police, not for political reasons but for that neglect, put him into a concentration camp where he stayed from the 15th of November, 1938, until the 18th of January, 1940. When he was discharged from the concentration came, some work was assigned to him, but soon he stopped working and just ran around and spent the money he had stolen from his wife. He came back to Nurnberg once but only to sell clothing that belonged to his wife and then to continue his previous mode of life with the proceeds of that sale. He was sentenced to eight years' imprisonment for that offense, when he had finished his term again, he was sent to a job and he should have been able to live on the money he earned.
From 1942 on, he lived with a 62-year old widow as her sub-tenant At the end of 1942, the son of that widow was killed on the front. Naturally, Schaus heard of it. The widow received from the state a gift of 300 Reich marks when her son had been killed in active service. She received that gift at approximately the end of January, 1943. At about the same time, the woman sold all the possessions of her son's and the proceeds of the sale and the gift she had from the state making a total of about 1,000 Reich marks she kept in her purse. But the defendant knew about that and in an unguarded moment he stole 900 marks from the old lady's purse and on a trip through various German towns he spent the whole money.