had arrived at Sonnenberg, and that the act was under way -the prisoners were being handed over to the Gestapo. Eggensberger testified that this surprised him and that he indicated his surprise in his voice or in his questions to Hansen. Whereupon Hansen informed him that this had to be done because the enemy constituted an immediate danger to the prison. Hansen said that this directive had originated with the Reich Defense Kommissar and Gauleiter Stuertz and that thereupon of Eggensberger asked Hansen "Does the Ministry know anything this directive?" to which Hansen answered: "Yes, this matter has been discussed with the Under Secretary of State Klemm." According to Eggenberger's recollection, Hansen advised him that Klemm had approved the matter and that Hansen was reporting according to agreement.
Eggensberger then testified that immediately he made a pencilled notation of this occurrence, and turned it over to Hecker the next morning. (Tr. 3084-6). This he did because Hecker was the proper official to receive the report. But Eggensberger states that recalling Hecker's conversation with him of a few days before about the call that Hecker had had from Sonnenberg, he asked Hecker, if he, Hecker, thought Klemm knew about it. Hecker's reply is unimportant and not binding on the defendant Klemm. But the fact that there was a conversation between Hecker and Eggensberger was testified to by both Hecker and Eggensberger.
It is interesting to note that under cross-examination, Eggensberger become much more positive. (Tr. 3089-90; 3092). He states that he did not ask Hansen if Klemm approved the agreement because he only asked him if the Ministry knew about the agreement, and that he remembers that Klemm's name was given him by Hansen, particularly because he was surprised that klemm had handled the matter rather than the Minister.
Before proceeding further, the Court will recall that later in the case the witness Eggensberger appeared for the defendant Klemm and did not change his story in any manner from that which he gave under direct and cross-examination as a witness for the Prosecution.
The court also will recall the demeanor of the witness Eggensberger on the stand and that demeanor is one of, carefully thought out, but direct answers to questions. This coupled with his obvious lack of desire to testify against or to injure then Klemm, should remove all reasonable doubt as to the correctness of Eggensberger's testimony.
The witnesses Eggensberger and Hooker corroborate each other on at least two important elements of their testimony. Not only under the rules were they not permitted to be in the courtroom while the other testified, but the court also judicially notes that at all times during which Hecker's testimony was given, he was in the Nuernberg jail whereas the witness Eggensberger came from Tuebingen in the French Zone, arrived in the morning and left immediately after his testimony.296 (Tr. 3880) The Prosecution later produced the witness, Franz Herget, who late in January 1945 was Kriminalrat at the Gestapo Headquarters in Frankfurt on the Oder.
He testified that during an evening of one of the last days of January, 1945, he Herget, received a telephone call from SS Oberfuehrer Fischer in Berlin, which call was for Hergets superior at Frankfurt, Obersturmbannfuchrer Richter; that 296:
The transcript discloses that the Prosecution asked that Eggensberger be permitted to testify in order to accommodate him on his return; that the court made inquiry of this matter and agreed that it might be done before Hergot got Richter on the phone, Fischer said to him that he, Fischer, had just boon wrung up by the General Public Prosecutor in Berlin in connection with the penitentiary at Sonnenberg; that at this moment, Richter came in and continued the conversation:
that Hergot heard Richter's end of the conversation and that Richter first refused to do what he was being ordered and finally agreed although visibly agitated; that later on that same evening, when they were alone, Richter told Hergot that Fischer had ordered Richter, pursuant to the direction of the General Public Prosecutor in Berlin, to send a commando to Sonnenberg and shoot the prisoners there. Hergot further testified that the next day or the day following, a commando went from Frankfurt-am-Oder to Sonnenberg and shot the prisoners.
Hergot further testifies that Richter was reduced in rank because of his original refusal to obey the order, was transferred to the Waffen SS in Berlin, and to Herget's best knowledge, was killed there. Ho further testified that Fischer died in Berlin, and the transcript also contains evidence that Hansen was dead before the proceedings started.
Although we know of no evidence in the record, it will probably be argued that there were two General Public Prosecutors in Berlin. This is true. One of them was at the District Court and the other, Hansen, was at the Kammergericht which was the court of appeals for Prussia, located in Berlin, as the witness Hooker testified.
Lautz Dec. 174, Lautz Book II 56, discloses that the Reich Minister of Justice had supreme supervision of the execution of justice and the administration of the institutions where prisoners were kept, that is the prisons and of their administration.
It also discloses that the General Public Prosecutor of the Court of Appeals is the supreme executive authority in this matter within his Oberladuesgericht District. "He is at the same time the supervisor of the officials in the prison service of the ---district---. " Sonnenberg is in Prussia, in the Province of Brandenburg. This the court judicially notes. Therefore, when Herget testifies as to directions issued by the General Public Prosecutor in Berlin, this official, of course, is readily identified as Hansen, for he is the official who had jurisdiction over the prison Sonnenberg and its affairs. This evidence of Herget, therefore, corroborates the fact that Hansen was in fact in the agreement for the massacre of the prisoners at Sonnenberg and corroborates the affidavit of Frau Leppin 297 that they were in fact murdered, and corroborates the testimony of Heeker that they were in fact turned over to the Gestapo.
The Klemm defense has shifted several times. A groat deal is attempted to be made of a supposed order empowering Himmler (this is the same Himmler who, according to the defendant Klemm and most of the other defendants, to other with Bormann. Thierack and Hitler ran all the affairs of the Ministry of Justice and the war, in view of the fact that they are the only people apparently responsible for anything that happened), being in charge of the Armed Forces in the area of Sonnenberg to issue the order for the massacre of the prisoners. The Herget testimony corroborates that of Hooker and Eggensberger and effectively puts an end to that defense. The order to the Gestapo at Frankfurt-an-Odor who shot these prisoners down did not come from Himmler, but came from Hansen We are next told that in the last days of the war, a Reich De 297.
Ex. 293, NG 741, Bk VII B 34.
fense Commissar had complete authority to give what orders he wished, and was responsible to no one and that therefore, this was the order of Gauleiter Stuertz to Hansen, from which we are to assume, to reason that the Reich Ministry of Justice could not interfere, and that therefore Hansen could not have called Klemm. for his approval or discussed the matter with Klemm, because he did not need to do so. Unfortunately for this defense, the defendant Klemm put in two exhibits, Exhibit 6 concerning the appointment of Reich defense Commissars of 1 September 1939, and Exhibit 8, concerning Reich Defense Commissars of 16 November 1942, which so far as we know were the final orders under which Reich Defense Commissars operated in the last days of the war. We quote verbatim from these two exhibits, as follows?
Klemm Exhibit 6, Decree concerning the appointment of Reich Defense Commissars of 1 September 1939.
"The Reich Defense Commissioners....are enabled.... to give orders to all civil authorities of their districts with the exception of the Highest Reich Authorities."
Klemm Exhibit 8, Decree concerning the Reich-Defense Konmissar had to obey the directives of the supreme Reich authority. The Lautz document books, and all the testimony in this case, clearly shows that the Ministry of Justice was the supreme Reich authority having control over the prisons in the Reich, including the Sonnenberg prison. It is very clear from Klemm's own documents that a Gauleiter as a defense Kommissar, and a Chief Public Prosecutor at the Court of Appeals for Prussia sitting in Berlin, could not make such an astounding decision as the sending of the Gestapo into a prison to shoot down the prisoners without the authority of the supreme Reich authorities.
That Klemm was the only person who negotiated this arrangement and approved it is evidenced by the statement of the witness Eggensberger that he was surprised that Klemm's name was given him by Hanson instead of Thierack's, and that it was this very surprise that made him so very positive that it was Klemm. But there is another corroborating fact--
the testimony of Hecker that a few days before he received Ms phone call from Sonnenberg he had mot Hansen and Hansen told Mm that an agreement was being worked out with reference to the evacuation of Sonnenberg with Klemm.
A further line of defense is the statement that although Klemm and Hanson had been together for at least a year in the Party Chancellery under Bormann, they were unfriendly and did not get along. The witness Eggensberger testified that Hansen was an unpleasant individual, but Eggensberger further says that whenever he had official negotiations with Hansen, and Eggensberger did not do exactly what Hansen wanted, Hanson informed Eggensberger that he, Hansen, had the extensive support and backing of State Under Secretary Klemm. In light of this evidence, we do not believe the court is any more impressed than we are with the story that Klemm and Hanson were enemies, and that Klemm advised people against Hansen as being too hot blooded and violent a Nazi. (After associating with Bormann and Thierack as long as he did, it is difficult for us to understand just what kind of a Nazi the defendant Klemm would consider to be too violent. The Court has a right to consider this fact in evaluating Klemm's testimony on this point and that of his witnesses.)
We are driven now to the only defense which is left, and that is Klemm's denial that he ever talked with Hansen on this matter, or that he ever approved and entered into an agreement with Hansen and Stuertz that in case the Russians approached too closely, the political prisoners at Sonnenberg were to be handed over to the Gestapo. We find this testimony in which Klemm says: "To the best of my knowledge and conscience and with reference to my oath, I can only say that I have never been informed; I never found out anything about the order of Gauleiter Stuertz and that here only from these documents on this trial I was informed."
First we want to say this. That this is the same Klemm, who likewise under oath, said he never saw anything happen on the night of the Pogrom in November 1938; that he never hoard of a Jew being persecuted in Holland, and that ho thought Theresienstadt was an idyllic place of repose in which tho Jews lived happily in the East.
Furthermore, at page 5039, we find that Klemm did have conversations about Sonnenberg with Thierack, apparently in the middle of January 1945 or near tho end, and we further find on P. 5041 that he did discuss the general subject of Sonnenberg and the problems involved therewith Hansen.
It is incredible to believe that at this stage of the war either Klemm or Hansen would have had the time to waste during their official day to engage in aimless discussions as to tho fact "that the authority over Sonnenberg had changed." And incidentally, we ask why it was necessary to discuss the authority and the change of authority of Sonnenberg, of all places?
Tho Prosecution admits that Hansen is dead. We do not believe that Eggensberg lied; that Herget lied or that Hecker lied. There is too much corroboration in tho testimony of these three witnesses, none of whom were ever brought together by the Prosecution at any time, and none of whom was ever told of tho testimony of tho others.
There is not a single untold and not corroborated essential fact in this record. There is no reason to believe that any witness lied and there is no reason to believe that Hansen lied when he spoke to Eggensberger. Under tho very laws which the defendant Klemm cites, Hanson was under an obligation to make an agreement with Klemm, and he advised Eggensberger that he called the Ministry to notify him that the agreement which he had made with him was being carried out.
The defendant Klemm has been proven guilty beyond a reasonable doubt of being a principal in the Crimes against Humanity, and also War Crimes, if the Court believes the Leppin testimony that Russians and Poles were victims of tho massacre at Sonnenberg prison. This was clearly an extermination upon political and racial grounds, and as to the Russians and Poles, it was murder in violation of every provision of the Hague convention.
ORGANIZATIONS JOEL The defendant Joel has been charged under Count 4 with membership, after September 1, 1939, in the SS and in tho SD.
The Prosecution has offered tho personnel records of tho Reich Ministry of Justice and of the SS Personnel Office as evidence of such membership. The SS records show that Joel received his initial appointment into tho SS in January 1938 and given SS No. 290, 890. He was promoted five times before the end of the war; the last promotion being on 9 November 1943 at which time Joel was General Prosecutor in Hamm. Tho rank and date of these promotions areas follows: SS-Utersturmfuehrer, 30 January 1938; SS-Obersturmfuehrer, 11 September 1938; SS-Hauptsturmfuehrer, 30 January 1939; SS-Sturmbannfuehrer, 26 September 1940; SS-Obersturmmbannfuehrer, 9 November 1943.
Joel denies that he over held membership in the SS, stating that it was a temporary arrangement made necessary by the fact that he had been appointed liaison officer between tho Reich Justice Ministry and the Gestapo. Further, that he was not considered as a full-time SS member. He denies having ever received an SS membership card.
Joel has testified that his liason work with tho Gestapo was terminated sometime prior to his appointment as General Public Prosecutor in Hamm. To follow the argument that his membership in tho SS was only temporary while ho hold the position of liaison man, it would also be necessary to conclude that ho no longer held SS membership after that time, but he continued to hold SS membership and, in fact, was promoted to the rank of Obersturmbannfuehrer on 9 November 1943, a promotion approved by Himmler himself.298 The alleged fact that Joel did not devote his full time to the SS ia not significant since it is clear from Pros. Exh. 630 that Streckenbach, head of tho Gestapo, in exempting Joel from military service in 1940 considered the possibility of using Joel, then holding the rank of SS-Hauptsturmfuehrer, full-time in his capacity as a member of tho SS. In the completing questionnaire both for the Reich 298 - Pros.
Exh, 423, p. 9 Ministry of Justice and for the SS personnel office, Joel supplied information giving his SS rank, his SS number and from time to time kept these personnel offices informed of his current address.
On the occasion of Joel's introduction into the office in Hamm on August 17, 1943, the defendant Rothenberger referred to him as an SS member and his rank as SS Obersturmbannfuehrer.299 In 1945, when the question of his military deferment again arose: Gauleiter Hoffman of South Westphalia, intervened and, in a letter to the Reich Ministry of Justice, referred to the fact that Joel was known to be a member of the Waffen SS and that if he were to go into military service he would undoubtedly be assigned to SS activities.300 The defendant Joel has asserted, without offering any proof in support thereof, that membership through the SD Main Office cannot be considered legitimate membership in the SS.
Exhibits offered in behalf of tho defendant Joel by Ohlendorf, at present a defendant before Military Tribunal II a, states that "admission to the SS via the SD Main Office created a proper membership in the SS."301 The Prosecution is quite willing to accept the statement of Ohlendorf, the alleged mass-killer, as an authority on natters of SS organization.
Ohlendorf is in a position to know about Joel's association with tho SS because he had to approve Joel's transfer as liaison representative to another position in December 1942.302 We think it is perfectly clear from the record that Joel was an active SS member both before and after 1 September 1939. But, if the Court on the basis of Joel's statement to tho contrary believes, as Joel alleges, that he was a member of the SD and not of the SS, we ask tho Court to find him guilty of membership in that organization. We point out further that Joel's activity before the war as an investigator of concentration camps for tho Reich Justice Ministry and as liaison man between the Ministry and tho Gestapo imminently qualified him to be either an 299.
Pros. Ex. 54.
300. Pros. Ex. 550.
301. Joel Exh. 29, Doc, 35; Joel Exh. 24, Doc. 34.
302. Pros. Ex. 423, P. 12 SS or an SD member.
It would be a travesty on the unrofuted evidence and on fully warranted conclusions from all the facts in the record if Joel were declared to be not guilty of membership in one or the other of these organizations.
ORGANIZATION-Alstoetter The defendant Altstoetter joined the SS on 15 March 1937.
He was promoted seven times before the end of the war. The ranks and dated of these promotions are as follows:
20 April 1938 -- SS Utersturmfuehrer 20 April 1939 -- SS Obersturmfuehrer 1 November 1941 -- SS Hauptsturmfuehrer 1 October 1942 -- SS Sturmbannfuehrer 9 November 1942 -- SS Obersturmbannfuehrer 20 April 1943 SS --SS Standartenfuehrer 21 June 1944 - SS-Oberfuehrer Originally Alstoetter was assigned to the Legal Department of the Staff of the 48th SS--Standarte in Leipzig.
305 On March 1939, was transferred to the SS-Main Personnel Office and, as of 1 November 1941, again transferred to the Staff of the SS-Main Office.306 Evidence shows that he himself expressed the wish to become a member of the SS,307 which contradicts his assertion that he only joined for the purpose of obliging Himmler.
308 Nor is it correct that he was but an honorary member without performing his duties. He had to obtain his discharge from the SA before he could be accepted in the SS. He, himself, in a letter of 3 June 1943, refers to "further active proof of his loyalty" and to his "duties in his career as an SS-man",309 and the letter of Gebhardt of 4 February 1944 shows that Himmler had instructed all SS-Leaders to contact Altstoetter, before getting in touch with the courts in any legal matters.310 The Prosecution has thus proved that Altstoetter was a member of the SS, an organization declared criminal by the IMT, which included 303-Pros.
Ex. 421, NG728, P. 29 of Doc.
304-Ibid, P. 28 305-Tr. P. 8914 306-Pros.
Ex. 421, NG 748, PP4, 28 307-Ibid.
PP. 45, 48 308-Tr. P. 8910 309-Pros.
Ex. 426, NG 703, P. 7, Tr. P. 8955 310-Pros.
Ex. 426 NG 703, P. 2 311-Tr. P. 3152 in its judgment "all persons who have been officially accepted as members of the SS."
311 There can be no doubt, either, that altstoetter knew of the criminal purposes for which the SS was utilized.
The knowledge of the criminal program of the SS was, as already stated by the IMT,312 widespread among the population. Altstoetter's high position, his exalted rank in the SS and his close personal connection - one may call it friendship - with the most sinister personalities in the SS such as Himmler,313 Kaltenbrunner,314 and Gebhardt,315 his acquaintance with men like Brandt and Pohl316 and his correspondence with other higher SS leaders,317 are evidence that he had an insight from the highest level into the program of the SS and its criminal aspects. Himmler even personally initiated Altstoetter's appointment in the RJM in January 1943,318 after having recommended him to Thierack319 it was on the invitation of Bormann that he took part in a series of meetings which were held for the purpose of deepening the contact between the Party and leading State officials.320 Furthermore Altstoetter's work as Chief of Department VI of the RJM brought him into close contact with the racial policy of the Party and SS, e.g., he was in charge of the legislation concerning illegitimate children of foreign workers321 and even dealt with the problems created by the deportation of Jews from Vienna.
322 The above stated facts prove beyond a reasonable doubt that the defendant Altstoetter was a member of the SS subsequent to 1939 with knowledge of its criminal activities.
This meets the requirements provided by the statute, and further laid down in the advisory Opinion of the International Military Tribunal.
312. Tr. P. 3150 313.
Pros. Ex. 426, NG 703, P. 1, Tr. P. 8952-54.
314. Pros. Ex. 585, NG 1976; Ex. 586, NG 2162, Tr. pp. 8929-32.
315. Pros. Ex. 426, NG 703, Tr. p. 8921.
316. Tr. p. 8953.
319. Pros. Ex. 39, 654 PS.
317. Tr. p. 8921-2 318.
Tr. p. 8848-51 320.
Tr. p. 8959-60.
321. Pros. Ex. 460, NG 891, Tr. p. 8944-48, 8950-52, 8882-6.
322. Pros. Ex. 453, NG 900.
323. Tr. pp. 6819-21 ORGANIZATION--ROTHAUG The defendant Rothaug was not only "Gaugruppenwalter" of Judges and Public Prosecutors in the Rational Socialist Lawyers' League of Franconia from 1938 until 1943,323 but also a member of the Gau Staff with the rank and title of "Gaustellenloiter". Gauleiter Holz, in his letter to Therack of 11 January 1943, describes Rothaug as "Gaustellenleiter", and who should be better informed about Rothaug's official Party position than the Gauleiter himself.
A Gaustellenleiter was in Rothaug's own word,325 a leader and belonged, according to the definition of the INT Judgment326 to the Leadership Corps. We know that Rothaug was the legal brains benind the Gauleiter, the leading man in all legal-political matters in the Gau of Franconia, and that his influence in Party circles was even greater than that of Oeschey.327 We also know that he was the real author from whom Oeschey copied his infamous letter to Gauleiter Holz of 18 December 1942.328 Everything, therefore, that has been said to show Oeschey's knowledge of the criminal purposes of the Leadership Corps, applies to Rothaug as well. It may be added that Rothaug visited the Concentration Camp of Dachau together with Streicher in December 1938 and knew about ill-treatments there through the Roubeck case which he tried as presiding judge.329 His close connection with the SD is further proof of his knowledge of criminal intents.330
THE PRESIDENT. Just a moment. You made a noble effort to finish, but I am afraid you can't.
MR. LA FOLLETTE: Perhaps the Tribunal will permit us to file instead of reaming the last few pages.
THE PRESIDENT: If there is no objection on the part of the defense. Is there an objection to having the last two pages filed without reaming? There being no objection, that may be done. We will permit you to read the last line of your argument.
324-Pros. Ex. 554. NG 2125.
329-Tr. p. 6819 326-Tr. P. 3145.
327-Oeschey Ex. 13, Doc. 69. Doc. Bk. I47 328-Oeschey Ex. 158, Doc.
200, Doc. Ex. I, Ex. 561, NG 2167 329-Ex. 559 NG 2364, Tr. PP.
7571-77 330-Ex. 411, NG.
911, Ex. 424, NG 716.
MR. LA FOLLETTE: I would like to read that if I may, Your Honor: "It is ended."
(The Tribunal recessed until 1330 hours.)
(The following pages were incorporated in the record as directed oy the President).
9794-A ORGANIZATIONS CUHORST The defendant Cuhorst was one of the first members of the Stuttgart Administration of Justice to find his way into the Party.
331 As early as 1930 he became a Kreis (District) Sneaker332 and on 1 January 1933 a Gau Speaker.333 A Gau Speaker holds a Party Office.334 Cuhorst describes himself repeatedly as "a member of the Gau Staff in Stuttgart since the end of 1932."335 and in his direct examination as Gau Department Leader ("Gaustellenleiter)336 In this capacity ho was a member of the Leaderslip Corps as defined by the INT Judgment.337 Cuhorst as an early member of the Gau Staff was fully aware of the criminal intentions of the Leadership Corps.
He admitted on crossexamination that he was familiar with the basis principles of the Nazi program.338 Ho even took an active part in the criminal activities of the Leadership Corps by instilling poisonous propaganda and "unfathomable hate"339 into the population of his Gau.
331 - Ex. 573, NG-2169, page 6 of Doc., Exh. 406, NG-583, p.l of Doc.
332 - Tr., p. 8129, Exh. 406, NG-583, P. 1, 12 of Doc.
333 - Ex. 406, NG-583, p.l, 9, 12, 19 of Doc., Exh, 575, NG-2320, Ex. 568 NG-854 334 - Freiherr von Steinaecker on cross-examination, Tr., p. 5645.
335 - Exh. 578, NG-2321, Ex. 406, NG-583, p. 14 of Doc.
336 - Tr. page 7962.
337 - Tr., page 3145.
338 - Tr., pages 8129-8130.
339-- Ex. 568, NG-854.
ORGANIZATIONS OESCHEY The defendant Oeschey joined the Party as early as I December 1931.
340 To this fact he owed his early promotion to the position as Landerichtsdirektor as of 1 April 1931 on the urgent recommendation of the Deputy of the Fuehrer's Office.341 He styles himself a convinced Nazi,342 but the term "fanatical Nazi"343 is more appropriate. On 28 March 1933 he joined the National Socialist Lawyers, League.344 On 27 September 1933 he used his "oratorical capacity" to deliver "a good lecture on Party and State" before the National Socialist Lawyers' League in Hof.345 Oeschey's proper political career started on 1 August 1940 with his appointment as Chief of the Legal Office of the Party for the Franconia Gau (Gauhauptstellenleiter) and Gau Leader of the National Socialist Lawyers' League.
346 In August 1942, when Thierack became Reich Minister of Justice; the Gau Legal Offices throughout the Reich were dissolved.347 Oeschey remained with the Gau Staff in a newly created position as "Gau Legal Adviser (Gaurechtberater )",348 retaining his previous rank and title as "Gauhauptstellenleiter".349 In his capacity as Gau Leader of the National Socialist Layers' League he was replaced by Dr. Emmert when the latter was appointed President of the Nuremberg Court of Appeal as successor of Doebig in summer 1943.350 340-Ex. 14, NG-602, Ex. 580, NG-511, p. 3. of Doc.
, Tr. p. 8785 341-Ex. 408, NG-399, p.10 of Doc.
and Thierack's letter to Holz ibid. p. 19 342-Tr. p. 8523 and Oeschey Opening Statement p.12, Tr. p. 4213 343-Exh.
236, NG-624, p. 2 of Doc.
344-Exh. 408, NG-399, pages 1, 7 of Doc.
343-Ibid. In the face of this document Oeschey's sworn statements that he never acted as a speaker before 1940 (Tr. p. 8524) is a obvious lie, 346-Exh.
408, NG-599, pages 13, 16 of Doc.
350-Oeschey Exh. 13, Doc. 69, Doc. Book I 47, Tr.p. 8528 347-Klemm's testimony Tr. p. 4961, Oeschey's testimony Tr. p. 8528 348-Ex.554, NG-2125, Ex. 561, NG-2167 pages 1, 15 of Doc.
, Exh. 408, NG-599, p.17 of Ex. Doc., Tr. p.8785, Oeschey Ex. 13, Doc. 69, K.Bk I 47 349-Exh.
561, NG-2167; p. 14 of Doc.
As head of a Party Office on the Gau level, Oeschey was a member of the Leadership Corps as defined in the IMT Judgment.351 There can be no doubt that Oeschey, a member of the inner circle and an intimate friend and adviser of the Gauleiter,352 was aware of the criminal purposes for which the Leadership Corps was used. He knew about the transfor of Jewish real property to Gauleiter Holz353 and the deportation of Jews to the East in Inland 1942.354 There was no place in Germany where the full implementation of Nazi ideology and its criminal nature could be seen clearer than in Nuremberg, the city of the Reich PartyRallies and the Nurnberg Laws, the city whose political atmosphere had for years been poisoned by the Jew-baiter Streicher and his "Stuermer. From the Heubeck355 and Sauer356 cases, which ho tried as presiding judge, Oeschey know about brutal ill-treatments in Concentration Camps. But it can be proved that Oeschey hamself used his position in the Leadership Corps for criminal purposes. His letter to Doebig of 10 August 19)4.2 357 shows his interference with the administration of penal law in juvenile cases, and his letter to Gauleiter Holz, reeking with race hatred and political fanatism, serves the criminal purposes of prosecution of Jews and Polish slave laborers, the shielding of a partyfunctionary who had made himself guilty of a common criminal offense, and the besmirching of those few judges who tried to maintain their integrity and independence in spite of the pressure of the Party.358 351- Tr. p. 3145 352- Tr. pages 8784/5 353- Ex. 561, NG-2167, p. 11 of Doc.
354- Ex. 561, NG-2167, pages 8 (deportation of a Jewess) and 11 ("hardly any Jews were left in the Franconia Gau").
355- Ex. 559, NG-2364, Tr. pages 8765-8767.
356- Tr. pages 8756-8765, 8795-8797.
357- Exh. 584, NG-1693.
358- Exh. 561, NG-2167 CONCLUSION This trial was conducted through 119 days.
Over 139 witnesses were heard. The Prosecution introduced 639 exhibits, and the defendants over fifteen hundred. The total testimony to date is 9590 pages.
The Prosecution has decided to present only those major activities which constitute crimes and only comment in a selective manner on the mass of evidence. Under these circumstances, we do not assert that we have defined all the crimes committed by each and all the defendants in this statement. Certainly, we have not reviewed all the evidence. Therefore, we wish to make it clear that our failure to discuss all crimes is not to be construed as a waiver of any of them. Likewise, our inability to review every item of evidence is not to be construed as a waiver by us of the probative value of every item of evidence.
It is ended.
CORRECTION SHEET
COURT III, CASE III
14 October, 1947 - Morning The attached pages are to be inserted after page 9798 in the morning session of 14 October, 1947.
MILITARY TRIBUNAL III
Case No. 3 THE UNITED STATES OF AMERICA -against JOSEF ALTSTOETTER, et.
al.
THE RULES OF MALICE, INTENT, PURPOSE AND RESPONSIBILITY, WHICH APPLY HERE.
APPENDIX I To Prosecution Final Argument The defendants here have either participated in the drafting or enactment of legislation which acts evidence their guilt; or they have administered legislation which they must be held to have known was in violation of international law or passed for the purpose of exterminating or oppressing German civilians; or they have prosecuted under these laws; or as judges they have convicted under those laws or in some cases even perverted them in order to obtain convictions which would effectively result in the extermination or oppression of non-German and also German civilians.
Some of them have done more than one of these acts. It would seem proper to call to mind the basic principles by which we are to measure the Malice, Intent, and Purpose of the acts and the Criminal Responsibility of the defendants for the results of those acts.
We do not offer these following definitions from Wharton's CRIMINAL LAW (12 Ed.) 1932 to bore the court. Certainly, we do not believe that we need to educate the court. But we do believe that a short review of simple, fundamental concepts of criminal law will make understandable the basis upon which we ask for convictions.
9798-A Malice and Intent "Art.
137. Malice may be defined as intent to do injury to another.
"Malice is where a person willingly does that which he knows will injure another in person or property and is the equivalent of 'delus' in the Roman Law."
"Art. 144. By the leading English writer of the old school, malice is held to denote not only special malevolence to the individual slain, but a generally wicked, depraved, and malignant spirit, a heart regardless of social duty, and deliberately bent on mischief. --- And malice to a class includes malice to the members of that class."
Purpose "Art.
157. general malevolent purpose to break the law, --- or to inflict injury irrespective of any particular malice, gives color to a particular wrongful act committed in execution of the malevolent purpose. --
"When there is a general intent to do evil, in other words, of which evil the wrong actually done may be looked upon as a probable incident, then the party having such general intent is to be regarded as having intended the particular wrong. --- And a general intent to do evil such as to cover all the natural probably consequences of the act, may be inferred from the circumstances of the case."
RESPONSIBILITY "Art.
193. Responsibility, therefore, --- is not diverted because this wrong was arrested before consummation. Nor, --- is it necessary, to establish causations, that the effect should correspond with the conception. --- It is not necessary, therefore, in order to establish a causal 9798-B relation between the will and the effect, that the effect should be precisely what the party willed.