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.
Q. What was the legal evaluation of that offense?
A. The court considered that an offense under Article 4 of the Public Enemies Law, committed in connection with theft, and following the practice of the Reich Supreme Court in such cases, according to which the Public Enemies Law was applicable, in the case of theft from possessions of soldiers who had been killes in active service.
In view of the fact that the defendant was completely degraded and in view of the baseness of his offense by which an old mother who had made the greatest sacrifice and who had been robbed of the and of her son in her old ago and who had now been robbed by this man and the money having been spent by this defendant simply to have a good time, in view of all that. This case was considered a particularly serious one.
Q. The witness Mueller, Exhibit 149, who was the prosecutor in this case, has testified that he had received instructions to ask for penitentiary sentence, and that you had shown at the trial that on account of the guidance discussion you would pass the death sentence. What do you have to say to that?
A. After scrutiny of the files in my review already before the trial opened, the general public prosecutor instructed the public prosecutor to ask for a death sentence, for originally the senior public prosecutor had proposed a penitentiary sentence of four years, while at the trial the prosecutor asked for the death sentence.
The testimony of the witness Mueller on the trial has shown that on account of the results of the guidance discussions, I intended to impart the death sentence and that afterwards he had received corresponding instructions from senior prosecutor Schroeder. All that must be based on an error. When the Schnaus case came before the special court, Rothaug was the presiding judge and Rothaug had refused to attent the guidance discussions and therefore no such discussions took place in those days. Quite apart from the fact that as far as I know the case, Schroeder alone could not have given instructions to the effect that the death sentence was to be requested, that would have required the approval of the general public prosecutor.
Q Mueller further says that the general public prosecutor in his clemency report had criticized your judgment as being unjust and that in particular because of the application of the Public Enemy Law. Please comment on that point too.
A The general public prosecutor in his opinion on the clemency question criticized my judgment by saying that the offense of the convicted man had been so base and the character of the defendant was so inferior that the death sentence was altogether appropriate but that that sentence should not have been passed on the basis of Article 4 of Public Enemy Law but on the basis of Article 1 of the Law of September, 1941. That is to say, the law against habitual criminals.
Q. Thank you, witness. Were you able to see from the files what was the attitude of the Reich Ministry of Justice in this case?
A The Reich Ministry of Justice did not approve of the view of the general public prosecutor and took the same view as the court.
Q We are now passing on to the case of a field post theft which has been discussed here. It is the Sponsel case, Exhibit 189, and also Exhibit 223. In the latter exhibit, the witness Excher criticizes the death sentence which was passed under your presidency and says it was a cruel sentence?
A The Sponsel woman had worked with the Reich post from August 1943 on. She was a post woman. When she was hired, she was thoroghly instructed, about her duties and about what would happen to her if she violated them and finally she was warned not to commit theft and she was told what very severs and severest penalties were passed by the courts on the offenders. All the same, the Sponsel woman starting in November, 1943, until approximately the middle of March, 1944, on her rounds stole at least sixty packages, most of which were field post parcels.
Q The witness Escher when I have mentioned before, above all criticizes the fact that the Sponsel woman was sentenced to death although she was somewhat feeble-minded. What do you haveo to say about that?
A Escher was Sponsel's defense counsel, and he had asked that the Sponsel woman should be medically as to her state of mind. I granted that application and the result of the medical examination was that the Sponsel woman was fully responsible before the penal law and that a very slight degree of feeble-mindedness which was present in her did in no way influence her understanding and her will power.
Q Please tell us briefly why a death sentence was pronounced. I should like to point out that the witness Grillinger, when he was examined, transcript page 1368, took a negative attitude concerning the death sentence on offenders who had stolen field post packages.
A Since the beginning of the war, thefts from field post packages have been considered particularly base and have been considered as typical offenses under article 4 of the Public Enemy law. Tho decisive point of view was that the field post has the purpose to maintain contact between the soldier and his relatives and vice versa. A thief who steals field post parcels interrupts that communication and therefore affects the willingness of the soldier to fight at tho sane tine he causes anxiety to tho relatives who do not get any news from their soldier relatives at the front, quite apart from the fact that by such actions, soldiers are caused to feel that they are dedicating their liven for corrupt people at home.
Q The witness Meier, Exhibit 226, testified that the special court in Nurnberg had had a definite schedule; up to 30 field cost packages, prison sentence; above 30, death sentence. Is that right?
A No.
Q Can you explain the matter?
A In our legal practice, the penalties for field post thefts differentiated greatly. The death penalty was the exception. As a rule, penitentiary sentences of two or eight years were passed. The question as to whether a death sentence or a penitentiary sentence was to be passed, for that--the extent, the scale of the thefts was decisive, the motives of the pertrator as well as his mentality.
As concerns the extent, it was not so much the actual number of thefts that was decisive but what nattered was whether the number of field post packages which had been stolen, compared with the period of tine in which those thefts had been committed, constituted a continous, unscrupulout crime and thereby stamped tho offender as a dangerous saboteur.
If furthermore, he only stole to enrich himself or if the motives were of a similar base type, then as a rule the death sentence was passed. As concerns the testimony by the witness Meier, I can refer you to the Mager case. She was a post office clerk who had stolen 40 field post packages. All the same she was not sentenced to death and according to Meier's statement she should have been sentenced to death.
Q Did the prosecution consider that the Sponsel woman merited the death sentence?
A The prosecutor from the very beginning considered that the death sentence should be passed.
Q The prosecution in connection with the Sponsel case mentioned a Barth case. Barth and six other persons, and there the opposite charge is leveled against you. You are in fact charged with not having sentenced the offender to death who had stolon some parcels addressed to allied prisoners of war. I refer to prosecution Exhibit 190 and 479 and to the testimony by Grillinger, transcript page 1268.
Please describe that case briefly.
A There were seven defendants in that case. Two Germans, one Frenchman, four Czechs. The four main defendants were working with the Reich railway in Nurnberg. They used this opportunity to steal from good trunks. And mainly they stole gift parcels sent from the international Rod Cross to American and British prisoners of war. The other three defendants had not participated in those thefts. One of then, however, bought part of the articles which had boon stolen from one of the thieves for a higher price, and resold then at a profit to the other two defendants.
Q The witness Baeumler, transcript page 3831, testified that in his view the offenders in the case Barth should have boon sentenced under tho Public Enemy Law. What was the legal evaluation of the court concerning Barth's offense?
A The four defendants who had stolen were sentenced under Article 4, the Public Enemy Law, and that in connection with theft, two defendants were sentenced to five years in the penitentiary and the other two got 18 months in tho penitentiary. The offense of the man who bought the stolen goods was considered to have been the act of a professional receiver and he was sentenced to two years and six months of penitentiary. The other two people who had bought the goods were sentenced to one year of penitentiary, and Three months of imprisonment respectively because of ordinary receiving.
Q If I understand you correctly then, these defendants were convicted under the Public Enemy Law?
A The four main defendants were convicted under the Public Enemy Law.
Q The witness Baueumler - Exhibit 479 - criticizes your judgment as noticeably lenient in comparison with the sentences you passed on field post thieves. I suppose he meant that you applied different standards for thefts of German goods and foreign goods. Is that true?
A The comparison which the witness Baeumler made here is quite erroneous. German legal practice considered the theft of field post packages, on account of the effect it had on the morale of the soldier, a very serious offense and punished it as such. Those points of view did not apply in connection with the offense of Barth and the codefendants.
The charge which has been leveled against me in this connection might be justified if 'me Public Enemies Law had not been applied to these thefts, but actually Barth and the three other thieves were convicted on the basis of the very same Article IV of the Public Enemies Law under which all thefts from field post packages were sentenced.
Q I should like to point out that the witnesses Baeuler - transcript Page 8332 - and Goeringer - transcript Page 1268 - did not consider the death sentence the proper punishment in this cas. The Prosecution ha.s introduced documents on another field post theft case. The name of the defendant is Katharina Mayer, -Prosecution. Exhibits 226 and 479. The point is that the Mayer woman did not altogether remove the field post packages but only took articles from those packages and then forwarded them. Please briefly give us your comments on this matter.
A Katharine Mayer was employed with the Post Office at Regensburg She worked in the Field Post Department. In the fall of 1943 she start ed to open field post packages and to remove foodstuffs and tobacco from them. She ate the food herself and the cigarettes she used for barter.
According to the facts established and laid down in the judgment in the course of six months she stole from approximately 500 packages, that is to say, every other day she opened three or four packages. The indictment mentions a figure of a thousand packages.
After she had opened them and stolen from them, she tied up those packages again and dispatched them. The recipient naturally could see quite easily they his package had been opened and that things had been stolen from it. The effect on the morale and the mood of the soldier is as devastating, if not more devastating, than if no package reaches him at all.
As the Mayer woman had no conscience whatsoever and there were no extenuating circumstances in her case, she was sentenced to death under Article IV of the Public Enemies Law for a particularly serious offense.
Q Did the prosecution have the same opinion of that case?
A From the very beginning.
Q Did you find that case in the report list of the Ministry of Justice in connection with the clemency matters?
A Yes.
Q What does it say about it there?
A It is called a clear case there.
Q The witness refers to Exhibit 252, Page 95. The Prosecution has submitted a case where foreigners who had appropriated forged food ration, books which had been dropped by Allied fliers and were therefore sentenced to death . I refer we the testimony of Ferber -transcript page 1409 and Exhibits 230 and 232. I ask you, were you able to reconstruct also that case with the help of the court files?
A No; no. I had no documents to refresh my memory for this case. I have to state everything here from recollection.
AAnd what do you remember?
AAccording to my recollection there were six or seven foreigners who were indicted.
who were indicted. Two of the defendants two ror three days after an air raid on Nurnberg in 1943, in a wood near the town had found several largo parcels which contained food coupons in the form of travel coupons, and these had been dropped during an air raid on Nurnberg. The defendants removed large groups of these forged food coupons from the parcels. They told the other defendants and they also told more foreigners whom we did not discover and they made use of these coupons according to a proper plan.
According to their plan they wont to various food stores in the town and handed over their food coupons. In that way, without attracting any notice, they succeeded in getting rid of most of the coupons. That is what I remember of that case.
Q. The witness Groher -Exhibit 230 - testified that the foreigners had had no idea where those food coupons had come from.. What do you have to say about that?
A That was simply and excuse. It is just out of the questions that you would find several parcels of food coupons where somebody has lost them. Theoretically that could only happened on the way between the printer's shop to the office where these coupons were issued and in that part of Nurnberg there is no printer's books, quite apart from the fact that the coupons would never have been carried accross a piece of woodland where there were no roads. It was general knowledge at the time that Allied -
THE PRESIDENT: I think you have argued the point enough.
BY DR.SCHUBERT:
Q The witness Kern testifies that the prohibition of using food coupons that had been dropped by airplanes, that that prohibition had only been announced in German newspapers and therefore the foreigners couldn't have known anything about it. What do you have to say about that?
A That is untrue.
THE PRESIDENT: That is the same point again.
BY DR. SCHUBERT:
Q What was the legal evaluation of that offense?
A I can't remember the details. It is possible that the defendants were convicted under Article IV of the Public Enemies Law but it is also possible that they were convicted under Article I of the War Economy Law.
Q The witness Ferber - transcript, Page 1410 - testified that most of those foreigners; if not all of them; had been sentenced to death. Is that right?
AAs far as I remember, only one of the defendants was sentenced to death and that was the one who had not only appropriated large quantities of food coupons but who was also the one who had organized the matter. The other defendants were sentenced to prison terms which were graded according to their share in the offense.