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.
Q The Prosecution introduced a number of affidavits which deal with the Freicorps Plaerrer Case, Exhibit 149, Exhibit 230, Exhibit 232. In all of those affidavits it is stated that that had been nothing but a bit of nonsense, and that the offenders had been nothing but young boys. Therefore, the death sentence had been unjustified.
Please tell me first whether you have been able to study that case by means of the court files?
A No. All I saw was the copy of the indictment.
Q And what do you remember of that case?
A The main defendant, Kurtz, a German, had gathered around him a number of juveniles who, almost every evening, gathered at the Plaerrer. That is one of the traffic centers of Nurnberg. It was about thirty or forty people who gathered there and they cabled themselves the Freicorps Plaerrer.
Kurtz was a person of bad reputation. He had been previously convicted for theft and he was a shirker. He was the ringleader. Under his influence the Freicorps Plaerrer admitted a number of punishable acts. The difficult problem in this case was to distinguish from those offenders those who were not really offenders but who were simply juveniles who were of an adventurous turn of mind. The Prosecution had already dealt with that problem by only indicting nine of the 30 or 40 members of the gang and by indicting them as the main defendants. And, furthermore, the indictment was restricted to three counts, that is to say, ill--treatment of pedestrians, assault on a Hitler youth hostel and blackmail and robbery of pedestrians. Kurtz was the ringleader in all of these offenses.
Concerning the first offense, the ill-treatment of pedestrians, that was not really a serious punishable offense. The second offense, too, that attack on the Hitler youth hostel, we did not take that very seriously.
Q Witness, the Prosecution witnesses say that that attack on the Hitler Youth Hostel had been considered by you as a political action and had caused you to speak of an underground resistance movement against the Hitler youth movement.
Is that true?
A Neither I nor the court did that. It was the Gestapo who did, because it was the Gestapo that had made the investigations. In its final retort in which it summed up the results of the investigations, the Gestapo describes the Freicorps Plaerrer, because of that attack on the Hitler youth hostel, as a political underground movement, a resistance movement against the Hitler youth, but the police investigation only showed very little reason to assume that and the trial itself did not produce any evidence of that kind. Therefore, the court fie not regard the Frei corps Plaerrer as a political group and did not consider either the assault on the pedestrians nor the attack on the Hitler youth hostel as a serious offense and certainly not as a political offense.
The focal point of that matter was the third offense, and it was clearly proved during the trial that the Plaerrer Frei corps as such had nothing to do with it. It was only connected with that third offense because the offenders in that case happened to be members of the Plaerrer Freicorps.
What had happened was this. In those days every evening a large number of foreign workers gathered on the Plaerrer. Most of them were people from the East. Among them there were quite a few who tried to barter their cigarettes against food or ration cards, and cigarettes at that time were the most important rate of exchange. Soon Kurtz took advantage of this situation for a systematic robbery. As Kurtz didn't understand the language of these foreigners he joined up with the Ukrainian Mantiuk. Mantiuk went about among the foreigners and asked who would like to barter cigarettes against bread or food coupons. If anybody wanted to barter he took him to some dark corner or to some narrow street where Kurtz was waiting. There the foreigner was induced to hand over his cigarettes.
THE PRESIDENT: I am wondering if you can't make this tale of bartering of cigarettes a little shorter. Certainly no one is very directly affected by it. After all, we are merely concerned with the conduct of the defendant in the trial of the case. You are at liberty to show whether his action was reasonable or arbitrary, but we are not trying to retry all of these cases on the facts. In other words, statements should be more brief.
A (Continuing) What Kurtz end Mantiuk did to these foreigners was nothing but plain robbery or robbery and blackmail. Therefore, Kurtz and Mantiuk were conflicted under Article II of the Public Enemies Law in connection with serious robbery and blackmail and they were sentenced to death in view of the gravity of their offense.
BY DR. SCHUBERT:
Q, The witness Kern, in Exhibit 232, states that three death sentences had been passed, that is, on Kurtz, Mantiuk and a man called Malinowski; is that right?
A I am practically certain that only Kurtz and Mantiuk were sentenced to death.
Q Kern further states that Mantiuk had played the smallest part in this offense. What do you have to say about that?
A No. Mantiuk's share in this offense was hardly smaller than that of Kurtz. That was established beyond all doubt at the trial.
Q The witness Groher, in Exhibit 230, describes that gang as the Black Hand. Is that the same gang as the Plaerrer Freicorps?
A No. The Black Hand - Schwarze Hand - was a similar association as the Plaerrer Freicorps.
THE PRESIDENT: Was it involved in this case?
THE WITNESS: No, no, it was not.
BY DR. SCHUBERT:
Q In the Groher affidavit your judgment in the Bachhuber case, the case of an habitual criminal, is criticized and Groher says that was purely a case of civil law pending between Bachhuber and Kohlbauer.
Is that right?
A No. Bachhuber was an habitual criminal who had been released from security custody on probation. He had made use of the fact that Kohlbauer had been called up for service with the armed forces to steal 1300 Reichsmarks from him.
Q What sort of offense did the Prosecution think it was? They indicted him under Article IV of the Public Enemies Law together with embezzlement. Furthermore, he was indicted as a dangerous, habitual criminal under Article I of the Amendment of 4 September 1941. What sentence did the prosecutor ask for?
A The prosecution from the beginning thought that the death sentence ought to be passed.
Q. The witness Groher, Exhibit 230, states that the court; had not considered the question whether the offender Bachhuber, the person who had committed the theft, had the right to retain the 1,300 marks and that the court had not admitted a motion for evidence by the defense counsel; is that correct?
A. That is not correct. The motion for evidence was made on the 26th of November, 1943 by Groher. This trial was set for the 28th of November, 1943. Therefore, it was not possible to admit that motion for evidence. Probably Groher was told about that over the telephones, for on the 28th of November, 1943, when the trial opened, he brought his witnesses along and I examined them.
Q. On the basis of what legal provision was Bachhuber sentenced to death?
A. The court took the view that this was an offense under Article IV of the public Enemy Law, in conjunction with fraud and embezzlement. The death sentence was mandatory under Article 1-IV, as Bachhuber was a habitual criminal who had been discharged from safety custody on probation and who had used his time out on probation to commit another base offense.
Q. The Prosecution has also mentioned the Becker case, B-e-c-k-e-r. The Exhibit Numbers 232, 149 and 489. You were the presiding judge at this trial and the death sentence was passed. Attorney Kern, who defended Becker says that the verdict by far exceeded the purpose of making the penalty an atonement. Please give us some brief comments.
A. Rasper Becker, too, was a habitual criminal. He was a professional swindler. The offenses for which he had again be indicted were definitely the offenses of a swindler. He had made three women give him a large amount of money by promising them marriage and making other fraudulent proposals, thereby gaining their confidence. Another offense was that to the Reich Damage Office at Munich, he pretended to be an air raid victim, whereupon he received received a thousand marks, which he used to live at one of the first class hotels in Munich.
Q. What view did the Prosecution take in that case?
A. From the very beginning the prosecution thought that the defendant deserved the death sentence, and that was already mentioned in the indictment.
Q. And on the basis of what provision was he convicted?
A. The defendant was convicted on the basis of Article IV of the Public Enemy Law in connection with fraud, and Article I of the amendment.
Q. The witness, lawyer Kern, Exhibit 232, mentioned similar cases and says that in such cases prison sentences had been passed, or should have been passed. What do you have to say to that?
A. Rechtsanwalt Kern is referring to that case of fraud concerning the Reich Damage Office. Such offenders were never sentenced to prison terms; these cases always considered crimes under the Public Enemy Law and penitentiary sentences were passed and in particularly serious cases, the death sentence was passed.
Q. The witness Kern finally refers to the fact that one of the women had said she didn't think she had been harmed, and, therefore, in her case no fraud had been committed. Please tell us what you have to say about this.
A. That isn't true either. You are referring to Frau Leidel, and the defendant had embezzled money from her. As a witness at the trial that woman said that she had given Becker two hundred marks, or rather lent him two hundred marks only because he had promised he would pay her back; and he also had given her an I.O.U.; Becker however never intended to pay her back; and, so, she had lost her two hundred marks, But the Leidel woman at the trial said that she didn't think that was embezzled. However, that simply meant that she didn't want him to be punished, and according to German legal doctrine that is quite insignificant.
THE PRESIDENT: That is sufficient.
BY DR. SCHUBERT:
Q. And now a similar case. The case of Frieda Bayer, B-a-y-e-r, Prosecution Exhibit 226. The witness Meyer says that as a prosecutor he had only asked for a penitentiary sentence of three to five years. Did you see any files in connection with this case?
A. No, I can only tell you what I remember.
Q. Please tell us what you remember.
A. According to my memory, Frieda Bayer was a woman who had a large number of previous convictions for fraud; she was a definite type of the underworld. The War Damage Office at Nurnberg was told by her that she was an air raid victim and she got fifty thousand marks out of them, and the money she just spent for her own purposes.
Q. And what was the legal view that was taken of that offense?
A. The woman was convicted under Article IV of the Public Enemy Law in connection with forgery of documents, On account of ** fact that the Bayer woman was a criminal type it was considered a very serious case, and also because the sum of money was rather large.
Q. The witness Meyer also says that you had exterminated the Bayer woman because she had been a worthless gypsy type.
A. I don't remember properly what happened at the trial, but I know that the Bayer woman wasn't a gypsy; she wasn't a gypsy; she was a German woman.
Q. The Prosecution further introduced documents on the Bauer case, B-a-u-e-r, Exhibit 226. The witness Meyer says that the death sentence which was passed by you, being the presiding judge, was in no proportion to the offenses committed by Bauer. Please give us a brief account of that case.
A. Bauer according to his entire mentality and to the life he led was without any doubt a dangerous, habitual criminal. He shirked all honest work; he was nothing but a swindler. He had several previous convictions, and his last sentence had been a term in the penitentiary, but all that was in vain.
MISS HAHN: The film has run out.
THE PRESIDENT: The Tribunal will take its fifteen minutes recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. SCHUBERT:
Q Witness, you were just telling about the case Bauer. Can you tell us more about it?
AAs I mentioned, the case of Bauer was that of a confidence man who was a swindler. He had a number of previous convictions, including a penitentiary sentence; he had swindled two women, including a servant and her father, and he had swindled them out of their entire savings. According to his case history and records, he was an incorrigible, a habitual criminal. Therefore, paragraph 1 of the amendment was applied.
Q Can you see from the files what sentence the prosecution asked for?
A The files of the prosecution showed that it intended to ask for the death sentence from the beginning.
Q Who caused this remark to be made in the files of the prosecution?
AAmtsgerichtsrat Meyer, who has given an affidavit.
Q Did you cause the affiant Meyer to make this remark on the indictment?
A I never made a public prosecutor enter such a remark on the files.
Q The witness Meyer also mentioned in this connection that the court doctor had given an expert opinion according to which Bauer was capable of improvement, wherefore the death would not or should not have been pronounced; is that true?
A What is true in this is that the doctor in his expert opinion about the question of responsibility in the criminal sense, not actually about the man's qualities or his capacity for improvement, remarked incidentally that in his opinion the security measures necessary for professional criminals would not have been essential in this case.
That remark on the part of the doctor was flatly contradicted by what he had said otherwise. He described in his opinion Bauer as a weakling and a psychopath who would go back to swindling and was a habitual criminal with unfavorable propects for his further career. It was that statement by the court doctor that one felt obliged to apply security measures, that is to say the supreme measures provided for by law. The remark in question is, therefore, not in agreement with the other statements, and it therefore did not deserve serious consideration.
Q I shall now discuss the case of Flurer, F-l-u-r-e-rProsecution Exhibit 223 479. The death sentence passed under your presidency is being taken exception to as being too harsh. Was he sentenced as a habitual criminal also?
A Flurer was sentenced as a habitual criminal. His case was that of a homosexual, for having seduced juveniles, who had served a long term in prison and had been under police surveillance and he had offended again a number of juveniles. The main case showed that his case was that of committing offenses which showed an irrevocable inclination in that direction.
Q The witness Escher testifies as to the great requisites of paragraph 20-A of the penal code concerning the habitual criminal did not apply in this case; that Flurer should not have been sentenced as a dangerous, habitual criminal; what is your opinion about that?
A The provisions of paragraph 20-A, Section I, did not apply to Flurer, but the provisions of paragraph 20-A, Section II.
Q And he was sentenced according to that?
A Yes. He was sentenced quite legally as a dangerous, habitual criminal on that basis.
Q Escher also quotes and asserts the words "as a dangerous, habitual criminal" had been added subsequently to the indictment; is that true?