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.
--- Nor need such act of law breaking be necessary to the execution of the purpose. It may be only incidentally involved, in such purpose, yet if the will be to effect the purpose, lawfully or unlawfully, the will is to be regarded as causing the illegal act. Thus, a party selling liquor recklessly to a crowd has been held responsible for their disorderly conduct."
"Art. 195. A free moral agent (and none other can be a cause in the eye of jurisprudence) does not cease to be responsible for an alteration effected by him in the ordinary course of events, because there were other conditions, which were, in addition to his action, also of the same incidents result.
"Again: Iron is dug from a mine; is malted in a furnace; is shaped in a factory; is sold, as a weapon, by a tradesman; is used to inflict a fatal blow by an assassin. Now the mining, the melting, the shaping, the selling, are all conditions of the murder, without which it could not, in the line in which it was effected, have taken place; but none of these acts is a cause of the murder, unless the particular act was done in a concert with the murderer, to aid him in effecting his purpose."
"Art. 198. Omission to help may be indictable offense when such help is a legal duty."
The foregoing principles are those from which we deduce the guilt of these defendants. The facts when tested by these principles will be found sufficient to support their application.
9798-C Respectfully submitted CHARLES M. LaFOLLETTE ROBERT D. KING For Brig.
Gen. Telford Taylor, Chief of Counsel for War Crimes.
Of Counsel:
ALFRED M. WOOLEYHAN
SADIE B. ARBUTHNOT
ARNOLD BUCHTHAL
RODULF AUERBACH
On the Brief
PETER REAUVAIS
HENRY EINSTEIN
Expert Assistants 9798-D
MILITARY TRIBUNAL III
Case No. 3 THE UNITED STATES OF AMERICA - against JOSEF ALTSTOETTER, et.
al.
THE RULES BY WHICH THE RELATIONSHIPS SET CUT IN LAW 10, ART. I, par. 3, ARE TO BE INTERPRETED.
APPENDIX " To Prosecution Final Argument The structure of Article II of Control Council Law 10 is admirable in its simplicity.
It clearly follows the statement of the fundamentals of criminal liability quoted from Wharton, Sec. 349.
In Paragraph 1, the criminal act, element two of the corpus delicti, is defined. (The duty to establish the first element, that a man has died, or person has been taken by force from one place to another, or a house has burned, is implicit in every criminal statute. It is an element of the proof in every case brought under a criminal statute. Therefore, this element upon which the charge and proof are made is implicit in the statute.) In Paragraph 2, the agency of the person accused in bringing about the crime is stated. This agency may also be defined, as that relationship to the act which the law recognizes as criminal. - These relationships are the ones which believe it is proper to elaborate upon in this appendix.
Law 10, Art. II, Par. 2 first declares:
"Any person..... is deemed to have committed a crime .....if he was (a) a principal......" The definition appears to be self-explanatory.
9798-E Wharton1 first defines a 'principal' as follows:
"A principal, in the first degree at common law is the one who is the actual perpetrator of the criminal act." But there is a further definition which contains a basic principle applicable to the evidence in this case, which should not be overlooked.
"Sec. 241. To constitute, however, this grade of offense, it is not necessary that the party should have committed the act with his own hands or be actually present when the offense is consummated; for if one lay poison purposely for another, who takes it and is killed, he who lays the poison, though absent when it is taken, is a principal in the first degree. Such also is the case with a party who maliciously turns out a wild beast intending to kill anyone whom the animal may attack."
It is also meet to review the factual situations which the common law considered sufficient to create the status of principal.
"Sec. 255. Where one assailant strikes a blow which is not fatal, and a confederate follows it up with a fatal blow, both are principals in the homicide. If part of a crime also be committed in one place part in another, each person concerned in the commission of either part is liable as principal. Hence, if several combine to forge a document, and each executes, by himself, a distinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals. And if A counsel B to make the paper, C to engrave the paper, D to fill up the names of a forged note, and they do so, 1. Wharton, CRIMINAL LAW (12 3d.) 1932, Sec.
241.- All further citations are from the same authority.
9798-F each without knowing that the others are employed for that purpose, B, C and D may be indicted for forgery and A as an accessory; for if several make distinct parts of a forged instrument, each is a principal, though he does not know by whom the other parts are made, and though it is finished by one alone in the absence of the others."
"Sec. 258. All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime hot specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. Thus, if several persons come armed to a house with intent to commit an affray or a personal outrage (such affray or outrage having bloodshed as a probable incident), and a homicide ensues while the assailants are engaged in such illegal proceedings, then even those who may not actually participate in any overt act of outrage will be principals in the homicide. And where persons combine to stand by one another in a breach of the peace, with a general resolution to resist to the death all opposers and in the execution of the design a murder is committed, all of the company are equally principals in the murder, though at the time of the act some of them were at such a distance as to be out of view ...... Hence it is not necessary that the crimes should be part of the original design; it is enough if it is one of the incidental probable consequences of the execution of that design, and should appear at the moment to one of the participants to be expedient for the common purpose."
The next relationship defined in Law 10, Art. II, 9798-G Par.
2, is the following:
"(b) was an accessory to the commission of any such crime or ordered or abetted the same."
This defines the relationship of an accessory before the fact and, as we shall demonstrate by the definition of the word "abet", also the relationship of principal in the second degree.
"Accessories before the Fact.
"Sec. 263. An accessory before the fact is one who, though absent at the commission of a felony, procures, counsels, or commands another to commit said felony subsequently perpetrated in consequence of such procuring counsel or command. . . . . .
"The accessory is liable for all that ensues as incident to the execution of the unlawful act commanded; as, for instance, if A command B to beat C so that C dies, A is accessory to the murder, if the offense be murder of C. and if the offense commanded be effected, although by different means from those commanded, as, for instance, if J.W. lure J.S. to poison A and instead of poisoning him he shot him, J.W. is nevertheless liable as an accessory."
"Sec. 267. If the advice of the accessory be countermanded before it operates in any way, he is relieved from responsibility, and if an instigator, when withdrawing, not merely expresses his disapproval of the crime, but takes all the measures in his power to prevent its consummation, and such measures fail because of casus, or some intermediate impulse, then his criminality ceases. But it does not cease simply because, after starting the ball, he changes his mind, and tries, when too late, to stop it. To emancipate 9798-H him from the consequences, not only must he have acted in time and done everything practicable to prevent the consummation, tut the consummation, if it takes place, must be imputable to some independent cause.
Here we point out that the definition in Sec. 267 is not complete. For, even if. the act is caused by "some independent cause", the accessory will still be guilty, if the independent cause was one which he must be held to have foreseen, as a reasonable man, when he "started the ball rolling." ...
"Sec. 268. While an accessory before the fact (or instigator) is responsible for all crimes incidental to the criminal misconduct he counsels, or which are among its probable consequences, it is otherwise as to collateral crime not among such incidental and probable consequences.
"Thus where A instigates B to rob C, and B murders C in carrying out the robbery, A is accessory before the fact to the murder."
Sec. 270. The assistance must be rendered knowingly. It is not necessary, indeed, that the principal should know all the conditions of the help rendered him, but it is necessary for the accessory to know the guilty purpose he contributes to help. The chief of the plot is not bound to know a cooperator in order to implicate the latter as an accessory, but the cooperator cannot be convicted unless he is shown to have been acquainted with the character of the plot."
Sec. 273. It is not material that an accessory should have originated the design to commit the offense. If the principal had previously formed the design and the alleged accessory aid him to carry it out by stating falsehoods, or otherwise, he is guilty as accessory 9798-I before the fact."
We also point out that a principal in the second degree is defined as one who is present "aiding and abetting" in the commission of an offense.
"Sec. 245. Principals in the second degree are those who are present aiding and abetting the commission of the offense.
"6. 'abet' is anonymous with 'aid' and 'assist'. State v. Flynn, 76 N.J.L. 473, 72 Atl. 296."
It follows that subdivision (b) above, when it used the words "or abetted the same" includes the common law relation of "principal in the second degree" as well as that of "accessory before the fact."
The next relationship is stated as follows:
"(c) took a consenting part therein" (the commission of the crime)" This definition states a relationship to the crime, in which a person, with knowledge of the crime intended, does an act which ho knows will contribute to or be of assistance in the commission of that crime.
If ha docs so he is liable not only for the crime intended, bat for all crimes reasonably foreseeable as among the probable consequences of the crime he contributes to or assists. This seems to be a fair statement of the relationship inherent in the words "took a . . . part in" the commission of the crime.
It is a criminal relationship described in Sec. 258 of Wharton cited above (page 3) under out discussion of the meaning of the term "Principal". We also find that at common law an "accessory before the fact" need not necessarily have 9798-J been a participant whose sole action consisted of "instigating" the plan or plot.
He could occupy relationship to the crime, other than that of "instigator", and still be held as "an accessory before the Fact."2 But this definition (c) speaks not only of a "part" in the commission of a crime, but also of a "consenting" part.
This implies a parson who acts voluntarily.
It is certainly true that the law presumes that a person acts under free will, consequently the alleged presence of coercion, sufficient to constitute a defense or as matter of mitigation of punishment, is affirmative matter. Certainly the prosecution, in light of the presumption, is not required, as part of its case, to negative possible coercion. This is especially sound when we stop to realize that only the defendant knows the facts which he considers sufficient to make him conclude that he was coerced. Therefore ho should produce them or, if they arc found in the evidence the prosecution has introduced, ho should point them out. Then it remains for the court to decide, whether or not under all the evidence in the case, the defendant acted voluntarily beyond a reasonable doubt.
The last relationship which is of consequence in evaluating the evidence in this case is that defined in clause (d):
"(d) was connected with plans or enterprises involving its commission."
First, it should be pointed out that the acts of the defendant which require a finding of guilt under this clause are the same acts of knowingly contributing to and rendering assistance in the commission of a crime as 2. See Sections 270 and 273, supra, p.4.9798-K defined by clause (c), Clause (d), however, makes it clear that a defendant is guilty if ho knowingly acts to assist or make a contribution to a plan or enterprise to commit a crime, which plan or enterprise was originally conceived or instigated by other persons and was being carried out by them.
It seems clear also that these others need not have requested or ordered the defendant to assist or contribute to the plan they were executing. Indeed, they need not be aware of the fact that the defendant is contributing to or assisting in the execution of their plan or enterprise. It is enough if the defendant with knowledge of the present existence and operation of a plan or an enterprise to commit a crime, docs an act which is connected with its successful or more complete or full execution.
This interpretation is established as a precedent by IMT in cases of Streicher3 and von Schirach4. There IMT was construing a statute, Charter, Art, 6(c), which made Crimes against humanity criminal if committed "in connection with any crime within the jurisdiction of the Tribunal." We point out that in the von Schirach case the IMT said:
"Austria ...... was occupied pursuant to a common plan5 of aggression."
A few sentences later, the opinion then stated: "The Tribunal finds that von Schirach, while he did not originate the policy of deporting Jews from Vienna, participated in this deportation after he had become Gauleiter of Vienna.6 He know that the best the Jews could hope for was a miserable existence in the Ghettos 3. Tr. in Justice Case p. 82; Tr. in IMT p. 17011 4. Tr, in Justice Case p. 82; Tr. in IMT p. 17037-8 5. Our underlining.
6. Our underlining.
9798-L in the East.