A I have gone into Escher's statement on the basis of the files, and have found that what he says today is not correct. Added subsequently only were the words as a dangerous, habitual criminals; and when the legal analysis was given, the words "and in connection with paragraph 20-4, subsection II of the Reich Penal Code." On the other hand, the paragraph 1 of the law, 1st April, 1941, which becomes clear unequivocally from the copy of the indictment. There was in the original indictment, from this it becomes clear that the prosecution did not regard Flurer only as a dangerous habitual criminal and wanted to indict him as such because the amendment of 1st April, 1941, only refer to habitual criminals, but that it regarded the case as one deserving the supreme penalty. As that law only provides for the death penalty, the subsequently added words do not constitute an alteration, but merely a completion of the indictment.
Q The witness Baeumler says in Exhibit 479 that in this case protective custody would have been sufficient, or security custody would have been adequate as Flurer was preparing to be castrated voluntarily. Will you give your comment about that?
A The voluntary offer, on the part of the defendant, to be castrated was not made during the main trial as far as I know. Apart from that, this could not have been taken into consideration at all because German law in the case of homosexual criminal does not allow for a castration to be effected.
Q Was the case of Flurer added on the Ministerial list for clemency pleas?
A Yes, as a clear case.
Q This is Exhibit 252, on page 142. Now, as to the case of Irmgard Hofmann, H-o-f-m-a-n-n-. This death sentence was pronounced under your presidency. You described the defendant was dangerous, habitual criminal. The objections made here by the witnesses in Exhibits 149 and 235 refer to the fact that the resumed trial which was taken up was refused by you.
On what basis was this resumption of trial suggested?
A Hofmann's defense counsel made a motion to have the trial reopened, the reasons being that the Hofmann woman had suffered from mental disorders; that her criminal responsibility was doubtful. I admitted and allowed this motion, and by agreement with the defense counsel I had the woman Hofmann sent to a Psychiatric Clinic in Munich for observation and examination.
Q What was the result of that examination?
A The clinic gave me a very extensive certificate that although she had suffered from these disturbances, that however these disturbances had not interfered with her mental functions or had had any influence on her criminal acts. This expert opinion stated that in the case of the Hofmann woman, we had a criminal case of abnormal instincts; the opinion described her as a pathological liar, a woman dealing with false pretenses.
AAnd the doctor stated that these abnormalities of instinct were so intensified that in the case of the Hofmann woman one could assume deficient responsibility under Paragraph 51, Section 2.
Q What was the decision finally arrived at concerning the reopening of the trial?
A On behalf of that expert opinion the Courts turned down the motion to have the trial reopened. It could have only been allowed if the Court could have made up its mind to find extenuating circumstances under Paragraph 51, Section 2. The Court could not do that in this case in view of a decision the Reich Supreme Court had made in a similar case, and for that reason it turned down the motion to have the trial reopened.
Q Witness Mueller takes exception to the fact that there was only a decision in writing concerning the motion for reopening, and that not a new main trial was ordered. Will you please give your comments about that?
A In a case like this the main trial is not to be renewed because it would be senseless. After all, this could only lead to a confirmation of the former sentence -- rather, if the motion to have the trial reopened seems to be lacking justification, in other words, if it is quite clear that no other sentence could possibly be arrived at, it has the duty to make a decision to turn it down. This becomes unequivocably clear from Paragraph 368 and Paragraph 370 of the Penal Code procedure.
Q On what basis did the defense counsel base his information? fitness Pfaff says in Exhibit 235 that it was inadmissible for you not to have passed on this complaint through the District Court of Appeal. May I have your comments about that?
A Witness Pfaff has overlooked one important factor. According to Article 7, Paragraph 1 of the regulation for the further simplification of penal procedure of 13 August 1942 in Reich Legal Gazette, Page 508, complaints on the part of defendants and their counsel against the decision of a Court needed a special admission. On that admission the president of the Court whose decision had been attacked in the complaint was to decide.
The admissibility, according to that regulation, was to be granted if and when it would have been unfair to turn it down. I could, therefore, not allow for the complaint of the defense counsel to reach the Penal Senate of the District Court of Appeal without having made a decision about its admissibility first. And the decision to which Pfaff took exception, and on which I passed, included that. I did not allow the complaint because the decisions on the part of the Special Courts were undisputable. The complaint, therefore, was not admissible. It was, of course, not unreasonable to have an inadmissible complaint disallowed.
Q The regulation for the further simplification of Penal procedure which the witness has mentioned is in Document Book II of the Prosecution, No. 40. I shall now discuss the case of Koch. The Prosecution submitted three affidavits in this connection: Exhibits 149, 235, and 231. This is again the case of a habitual criminal. Will you please give us your comments briefly?
A Koch was a man with many previous convictions for fraud. Within nine years he served sentences for at least twenty-two cases of fraud. The last sentence he served lasted for over two years in prison, but he continued to commit more frauds, and in some cases he harmed people very cruelly. Because of these recurrent cases of fraud he had to answer for his actions as a dangerous habitual criminal before the Special Court. Legally his actions were considered as crimes under Paragraph 4 of the Public Enemies Act, in conjunction with fraud. Also, there is no doubt that it was proved on the basis of a criminal biological expert opinion that Koch was an incorrigible criminal who had fallen back to his old crimes. This is why the law of 4th of September 1941 had to be applied.
Q What were the views given by the Prosecution about this case?
A The Prosecution never left any doubt open in this case, the death sentence was to be applied and have, therefore, formulated the Indictment accordingly.
Q Was the case included in the ministerial list for clemency pleas?
A Yes, as what we call a clear case.
Q In Exhibit 252, on Page 76: I shall now discuss the case of Kollischan. In this connection the Prosecution have submitted the affidavit which is Exhibit 228. What about that case?
A Frieda Kollischan had twenty-two previous convictions for fraud and theft. Shortly after having served here latest sentence she swindled a soldier's widow out of her entire fortune. Moreover, she had swindled her out of a number of articles. Here again we had a crime under Paragraph 4 of the Public Enemies Act, in conjunction with fraud, and there could not be any doubt that the Kollischan woman was an incorrigible and dangerous habitual criminal. The death sentence was, therefore, based on Paragraph 1 of the Amendment, as well as on Paragraph 4 of the Public Enemies Act.
Q What were the intentions of the Prosecution?
A From the files of the Prosecution I have seen now that the Chief Reich Prosecutor had told the main public prosecutor to ask for the death sentence.
Q The witness Lipps in Exhibit 228 takes exception to the fact that you had changed a large part of the opinion in order to have the Kollischan woman in a particularly revolting light. Will you give us your comments about that?
A If I have changed the opinion I did so not because it was not severe enough, but because obviously it was deficient in the reasons it quoted. Lipps had been with the Special Court for only a very short time, and it is entirely possible that I did not concur. Anything unusual, of course, is not to be found in this, especially as I had to sign these opinions.
Q I shall now discuss the case of Wagner. The Prosecution has submitted Exhibit 228 which is the affidavit by Lipps. Why was the death sentence pronounced in this case?
A The Wagner woman again was a woman with a considerable criminal record, a completely inferior type of criminal. I believe she had about twenty previous convictions. The action for which she had to answer before the Special Court was a highly skilful and dangerous act against the food office of the town. She succeeded at that time in obtaining food ration cards for 275 people on false pretenses.
Q What were the intentions of the Prosecution in this case?
A The Prosecution suggested the death sentence, and they had received an order to that effect.
Q Witness Lipps mentioned in connection with this case as proof of a particular rudeness and toughness you had not allowed Wagner to have the defense counsel whom she had selected, but somebody else whom you had selected. Will you give us your comments about that?
A To speak quite generally about that, no defendant had any claim to have a certain defense counsel appointed, but within the bounds of possibility, of course, we took wishes into consideration. In the case of Wagner it was not up to me not to have her wish for a certain defense counsel fulfilled. What happened was that on 2 October 1943 I timed the trial to take place on the 20th of October, and I appointed Attorney Birkel as the attorney for Wagner. He was appointed on 8 October. And shortly afterwards he asked the Special Court to be given the files. The files were then turned over to him -- 15 October 1943. Meanwhile the Wagner woman had told an official of the local court Bamberg that she wanted a certain defense counsel, which was taken down on the record. Probably some mistake of the Court this application by Wagner was never shown to me. It would appear that the office overlooked to have this forwarded to me to Nurnberg. I might add here that the Wagner woman was entirely satisfied with the defense counsel I had appointed, and in the main trial she did not express any wish to have a different defense counsel take her case.
Q A number of Prosecution affidavits deal with the Case of Friedchen: Exhibits 226, 227, 229, 479, and one former one. Here there are objections made that Friedchen had been sentenced to death, although he was mentally deficient. Will you give us your comments briefly?
A Friedchen came from a family with a bad criminal record. His father had thirty-three previous convictions, a brother equally frequent convictions, and he himself had nineteen previous convictions. And the basis of most of these sentences were thirty thefts. For a brief period of time he served with the Wehrmacht. There he had been punished also. He took up some work left it again in order to appear suddenly under highly suspicious circumstances in Nurnberg, and here again committed a theft only too typical of him--to find his way into a house or a flat and to steal whatever he could lay his hands on. In this case he got hold of a few pieces of underwear and clothes. He was indicted for that act. The Prosecution described him as a habitual and incorrigible criminal under Paragraph 1 of the law of 1 September 1941. We had orders to ask for the death sentence in the case of Friedchen. Now, as for his mental deficiency, this ought to be said: It is true that in 1937 he was examined four times by different doctors. The first opinion was given when he was tried for theft. The doctor declared him, at that time, to be completely responsible under criminal law. The second opinion was given in a proceeding for absenting himself without leave from his unit. That doctor regarded him as having his responsibility very badly impaired. But he emphasized that he thought the defendant was deficient only in this particular case and in the particular offense, but not generally. In the case heard before the Special Court in Nurnberg Friedchen was examined and testified to by two doctors-Dr. Baer, and Dr. Kunz: both experts declared him to be fully responsible for the theft in the criminal sense. They explained that his mental deficiency was of a slight degree and that his inhibitions and his appreciation of the fact that he was stealing was not impaired.
Dr. Kunz, moreover, declared Friedchen to be a dangerous habitual criminal.
Q Witness, let us now proceed to the case of Riegelbauer. This is a similar case. Riegilbaur had also been sterilized for being mentally deficient. The Prosecution has submitted Exhibits 227, 229, and 149 in this connection. Will you please tell us why the death sentence was pronounced?
A He was indicted under Paragraph 4 in the Public Enemies Act, in conjunction with theft. In clearing works of a factory which had been damaged in an air-raid he availed himself of the opportunity of pilfering. He took lamps and pieces of furniture. In another case he went into a flat which had been evacuated because of an imminent air-raid, stole a man's suit and other articles of man's clothing which, as he knew, had been left by a soldier killed in battle.
Q Witness, as for the doctor's opinion about Riegelbauer, did he ask for extenuating circumstances?
A Reigelbauer made the point in the main trial that in 1937 he had been sterilized because he was mentally deficient. For that reason I interrupted the main trial and asked him to be medically examined. The examination of Riegelbauer gave a highly sinister picture of his character. Earlier opinions described him as a man who showed every indication of being a neurotic. He had also been frequently punished for rape. It typical of him that between 1934 and 1942, within eight years, that is, he served 6½ years in prisons and workhouses. The medical expert finally said that he was fully responsible under criminal law. He had matured mentally rather late. But he was no longer to be regarded as mentally obtuse. His deficiencies were purely those of character.
Q What were the intentions of the Prosecution in this case, as far as his acts were concerned?
A The Prosecution, from the word go, regarded Riegelbauer as an incorrigible habitual criminal and public enemy and indicted him as such.
Q The next case is a similar one, that Ruchsbauer. In this case the Prosecution has submitted affidavits: Exhibits 180 and 226. Here complaints are made that Fuchsbauer was mentally deficient and that had not been taken into consideration. What can you tell us about that?
A In the case of Fuchsbauer again we have the case of a dangerous habitual criminal who specialized in stealing motor cars. For that reason, he had previous convictions of a considerable number, but he started again with these thefts, and within five months he had stolen about twenty-four vehicles of all types. On one of his trips he also raped a ten-year old girl. He was indicted for being a dangerous habitual criminal under Paragraph 1 of the Amendment. And the Prosecution intended, from the beginning, to ask for the death sentence in the case of Fuchsbauer.
Q Did the medical expert say that his responsibility had lessened?
A Medical opinion hesitated in recognizing that Fuchsbauer's responsibility was lessened. He explained that Fuchsbauer psychologically was a very low and inferior type. Also, that a certain degree of mental deficiency was apparent, which, however, could not be clearly sketched in the medical sense of the word. Nevertheless, despite the somewhat dark sentences the expert said that it was his belief that it might be justified to declare a lesser responsibility under Paragraph 51, Section 2. Taking this somewhat vague expert opinion into consideration, and, on the other hand, in view of the other capabilities of Fuchsbauer, which had become clear in the main trial, the Court arrived at the decision that, mentally speaking Fuchsbauer was on the borderling of full responsibility. In view of those facts, and in view of Paragraph 51, Section 2, and in consideration of certain findings of the Reich Supreme Court, there was no possibility and no reason to give a lenient sentence to Fuchsbauer in this case.
Q I shall now discuss the case of Gruber, G-R-U-B-E-R. The prosecution has submitted Exhibit 230, which is the affidavit by Kroher. This is, again, the case of a habitual criminal. Complaints are made that Gruber had not been clearly convicted of the thefts. What can you tell us about that?
A It is true that in the main case the defendant denied that he had committed these acts. However, the evidence made it quite clear that he was guilty. Any objections made by the defendant or his counsel investigated into in the minutest detail; all of them were clumsy lies on the part of the defendant. As to what the witness Kroher says in his affidavit, namely, that other persons could possibly have been the men who committed the acts, it was made quite clear in the main trial that those two persons could not possibly have committed those acts.
Q Attorney Kroher states in his affidavit -which is Exhibit 230 -- that the defendant Gruber should have been acquitted. Did Kroher made a motion to have the defendant acquitted during the case?
A In reading Kroher's affidavit one would assume that, yes; however, in point of fact, defense counsel Kroher in the case at the time did not move for Gruber to be acquitted because, on the basis of the evidence, he himself became convinced that Gruber was the perpetrator. Accordingly, he merely moved to have him sentenced leniently.
Q What was his motion -- Kroher's, I mean?
A The public prosecutor had asked for the death sentence, and Kroher had asked for hard labor and security custody.
Q On the basis of what regulation was Gruber sentenced?
A Paragraph 1 of the amendment of 4 September 1941.
Q Was the case included in the Ministerial list for clemency pleas?
A Yes, as a clear case.
THE PRESIDENT: May I ask you a question about that?
I wanted to ask a question, Dr. Schubert.
DR. SCHUBERT: Yes.
THE PRESIDENT: I think you mention a new concept to us there. You said that the defendant's counsel asked for a judgment of hard labor and security custody. Did the Special Court make orders for security custody in any way other than the ordinary sentence of imprisonment?
THE WITNESS: Under Paragraph 42-E of the Reich Penal Code, a dangerous habitual criminal could be ordered to be detained under security custody if public security made this imperative.
THE PRESIDENT: Was that an indefinite term?
THE WITNESS: The duration of security detention was not laid down, but until the outbreak of war it was provided for that after a certain term had been served, official investigations had to be made as to whether the detention should continue or not.
THE PRESIDENT: Do you remember whether that section to which you referred applied only in the case of dangerous habitual criminals?
THE WITNESS: Security custody was applied only to dangerous habitual criminals.
THE PRESIDENT: Thank you.
BY DR. SCHUBERT:
Q Witness, perhaps you could tell the Court whether security custody had anything to do with protective custody.
A No, no, nothing at all.
Q I shall now discuss the Hahn case, H-A-H-N. What was Hahn sentenced for?
A He was also a dangerous habitual criminal with many previous convictions who, once again, had swindled women and done them considerable harm. He had been convicted eleven times for such cases of fraud. The last sentence was two and a half years of hard labor. Had had served it by September 1941, and in November 1941 he started a new series of thefts and frauds of that type.
Q On the basis of what law was Hahn sentenced?
AAs an incorrigible habitual criminal, under Paragraph 1 of the amendment.
Q I shall now discuss the case of Mahr, M-A-H-R. In this case the Prosecution has submitted Exhibit 229, the affidavit by Gross. Was Mahr a dangerous professional criminal?
A He had been sentenced twelve times for offenses against property, his last sentence being two years at hard labor. Having served that last term, he was under police control.
However this last sentence and police supervision could not prevent him from operating as a burglar soon afterwards. Mahr was an incorrigible, completely inferior and anti-social criminal, who was sentenced under Paragraph 1 of the amendment.
Q Let us now discuss the case of Pritschet, P-R-I-T-S-C-H-E-T. In this case the prosecution have submitted Exhibit 234.
Was Pritschet a dangerous habitual criminal?
A Pritschet was also a dangerous habitual criminal who, from early childhood, had conflicts with criminal law. His last sentence was hard labor and workhouse. He was released from the latter on 16 February 1943, and barely three weeks later he started his thefts again, which, a few years earlier, was the reason why he had been in prison and the workhouse.
Q The case of Pritschet has been described by the former Prosecutor Hoffmann, and he has criticized you. What did Hoffmann do in this case?
A On the basis of the files I find that Hoffmann at that time was the expert of the prosecution. I also see that Hoffmann the critic was of a very different opinion at that time because, during the trial, there was not a moment of doubt for him that Pritschet was a dangerous and incorrigible habitual criminal to whom Paragraph 1 of the amendment was applicable. Accordingly, he indicted Pritschet and he made the relevant reports to his superior offices and also made all relevant arrangements.
Q The next is the case of Michael Schmidt, S-C-H-M-I-D-T. The prosecution has submitted excerpts from the files, Exhibit 468, and has also submitted affidavits, Exhibit 229, 235, and 180. This is the case of a dangerous habitual criminal whose latest theft concerned an item of 229 flycatchers. Will you please tell us why ho was sentenced to death?
A The criticism of the witnesses to the sentence, which you cited just now, overlooks the actual problem of the case entirely. It is a matter of course that Michael Schmidt was not sentenced to death because of his last theft. The case of Schmidt, as perhaps no other case, was that of a typical dangerous habitual criminal. He was a criminal since the age of 16. His record consisted of fifteen entries, most of them sentences for theft. His criminal activities reached such an extent that he was to be considered a very dangerous criminal (Schwerverbrecher). Reform institutions, the workhouse, and even prison sentences of long duration remained without effect -- because it was shown that soon after his last sentence he had committed another act -- therefore all hope vanished that Schmidt would at any time at all give up his criminal proclivities. Therefore, it was justified to say that he represented a constant danger to public life.
Q On the basis of what law was he sentenced?
A In the case of Schmidt the provisions applied where a dangerous professional criminal could be sentenced under Paragraph 1 of the amendment of 4 September 1941. This could not be avoided, even though the last objects he had stolen were relatively inexpensive. I will not go into the fact that at the time of his committing the act the value of certain objects of daily use had become quite different because of the military situation. However, I must point out that under a ruling of the Reich Supreme Court, which had been laid down for some time, it was stated that for a decision, whether or not Paragraph 1 of the amendment was to be applied, one should not only act from the point of view of the latest perpetration. The Reich Supreme Court, in many decisions, even in cases where the last act was of relatively small importance, stated that the picture of the whole personality should be the really decisive one, that it was not important whether the goods stolen in one certain case were valuable or not, and that even a negligible act could be symptomatic of the incorrigibility of the perpetrator.
Q. What was the valuation given by the prosecution of the case?
A. The prosecution, knowing fully what the Reich Supreme Court had decided, never represented any other view in the case of Schmidt, and they thought the death sentence was justified.
Q. Did the associate vote against you when you considered your verdict?
A. When we considered our verdict in the case of Schmidt there was no disagreement among the judges.
Q. Was the case included in the Ministerial lists concerning clemency pleas?
A. Yes, as a so-called clear case.
DR. SCHUBERT: This is Exhibit 252, on page 70.
Q. I shall now come to the last case of this exhausting list of habitual criminals. This is the case of Strobel. Concerning that case, the prosecution have submitted a number of affidavits, Exhibits 236, 227, 149, and 479. This was the case of a man committing an act under the Malicious Acts Law, and he was therefore sentenced as a dangerous criminal. Will you tell us, first, what Strobel's offense had been?
A. Strobel had said publicly, roughly, that Hitler's head would soon roll and that if the Russians would arrive he would take the Russians to two people he particularly hated and they would then be hanged by their legs by the Russians, and the Russians would knife their bellies.
Q. What sort of offense was that?
A. This was an offense under Paragraph 2 of the Malicious Acts Law.
Q. The witness Mueller--in Exhibit 149, and Eichinger I think in Exhibit 227--pointed out that the Reich Ministry of Justice, in this case, asked for the case to be tried under Paragraph 2 of the Malicious Acts Law.
Was the Court bound by this order in its legal evaluation?
A. No. This order was purely meant as a basis for trial, without which the prosecution could not even serve the indictment and the Court could not decide or rule. In no case was this rule an order to the Court. The Court remained entirely free in its actual and legal evaluation of the facts.
Q. It was testified to by the witness Mueller--on the record at page 3758--witness, that in this case two trials were held. What was the result of the first one?
A. The first trial, held on 30 November 1943, showed that Strobel was guilty of the offense for which he had been indicted, and under Paragraph 2 of the Malicious Acts Law the prosecution had asked for the supreme penalty, which was five years of imprisonment. Strobel was not defended in this trial, and as there was no necessity for any defense in this case he would have had to appoint a defense counsel, which he did not do. In this trial the Court did not arrive at a sentence, because in view of Strobel's character, particularly from the point of view of his previous record, the question remained open as to whether he should be regarded as a dangerous habitual criminal.
Q. When Lipps was questioned here--and this is on page 3748 of the record--the prosecution made the charge that in this case you had insisted upon the death penalty being inflicted, although you know that the maximum penalty under the Malicious Acts Law was five years in prison. What can you tell us about that?
A. It is not true. After the first main trial the Court arrived at the opinion that it should still be investigated as to whether Strobel was a dangerous habitual criminal.
If this question should be answered in the affirmative, then Paragraph 2 of the Malicious Acts Law no longer applies, but first, the scope of Paragraph 20-A of the Reich Penal Code, or punishment possible under the amendment of 4 September 1941, if the defendant is not only a dangerous habitual criminal but also an incorrigible habitual criminal.
Q. Now, the question has been debated here on several occasions as to whether the prosecution, in the case of Strobel, based the indictment on the legal aspects of Paragraph 20-A of the Penal Code and Paragraph 1 or the amendment, and extended thereto, and if and when they did so. What can you tell us about that?
A. On the basis of the statements which you have quoted, one might arrive at the mistaken conclusion that the sentence on Strobel as a dangerous habitual criminal could only be passed if the indictment were extended. That view, however, would be mistaken. The question of an intensified sentence under Paragraph 20-A of the Penal Code or Paragraph 1 of the amendment was to be examined by the Court quite officially, quite independent of the opinions held and motions passed by the prosecution, even if and when the indictment itself did not refer to this at all.
THE PRESIDENT: May I ask you a question? In this case, is it your opinion that the indictment did not set forth the facts which, if prove, would have constituted a violation of the Habitual Criminal Act?
THE WITNESS: The indictment did not contain anything about that at first.
THE PRESIDENT: Thank you.
BY DR. SCHUBERT:
Q. Were you here concerned with an extension of the facts of the case, or was there merely a shifting of the legal point of view?
A. If the indictment does not mention anything about that, but if the Court arrives at the opinion that the perpetrator is a dangerous professional criminal and therefore falls under these intensified regulations which I mentioned before, this does not amount to an alteration of the indictment in the sense of an extension of the facts, but rather, without changing the actual facts of the case on which the indictment was based, special circumstances become clear which make the punishability, as it were, more acute. In other words, the indictment was not being changed, but there was only a change in the legal point of view in the sense that on the basis of different or more severe regulations a sentence can be arrived at other than what was provided for by the indictment.
THE PRESIDENT: I think we had better not proceed any further this evening. Could you give us an estimate as to how much longer your direct examination will take? I don't mean to bind you, but could you give us an estimate?
DR. SCHUBERT: I shall finish in the course of tomorrow, if Your Honors please.
THE PRESIDENT: We will recess, then, until tomorrow morning at 9:30.
(At 1630 hours, 11 September 1947, a recess was taken until 0930 hours, 12 September 1947.)