"Without further leading, the Prosecution offers this Document NG into evidence as Exhibit 163.
DR. ORUBE: May it please the Court, when this document, was read out, I found repeatedly the translation for Oberstaatsanwalt mentioned in the document and he was in fact quoting. The Oberreichsanwalt has nothing to with this matter, nor does it actually appear in this document. Inonly wi to present that thereby that the ward Oberstaatsanwalt (Chief Prosecutor) has been translated as Oberreichsanwalt; that that might give rise to error inferring that the defendant Lautz might be brought into connection with to matter. I would be grateful if the records would be corrected accordingly.
MR. WOOLEYHAN: We have no objection to that, Your Honors. If the Court pleases, Your Honor, the objection which counsel for the defendant Lautz be just made -- it would suffice to have it appear in the record, I believe, because in any event the correct German title appears on the original document which is offered in evidence.
THE PRESIDENT: Well, I think if the counsellor is able to satisfy Defense Counsel, of course the Court will entirely agree with him.
MR. WOOLEYHAN: If that doesn't satisfy him, any other arrangement w they care to make is all right with us.
THE PRESIDENT: Very welly with that understanding that the correct ment will be submitted in evidence.
MR. WOOLEYHAN: May I ask the Court, what was the number of that exhibit? One six three.
May the Court please, it seems that the Prosecution has outstripped mechanical facilities today and we have no further evidence to offer at the time. May we request that the Court rise at this time, since we are unable proceed further.
We regret this exceedingly but it is completely beyond our control.
THE PRESIDENT: Do you expect to be able to proceed at nine-thirty tomorrow morning?
MR. WOOLEYHAN: I do.
THE PRESIDENT: Under those circumstances we will take the adjournment at this hour until tomorrow morning at nine-thirty.
THE MARSHAL: This Tribunal is in recess until 0930 hours tomorrow.
"The Tribunal adjourned until 27 March 1947; at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alsteetter, et al, defendants, sitting at Nurnberg, Germany, on 27 March 1947, 0930 - 1630, Justice Carrington T. Marshall, presiding.
THE MARSHALL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshall, you will please ascertain if the defendants are all present.
THE MARSHALL: May it please Your Honors, all the defendants are present in the courtroom with the exception of defendants Engert and Rothaug who are absent through illness.
THE PRESIDENT: The proper notation will be made.
MR. KING: We invite the Court to turn to Document Book 3-D first, or for reference. The first document which we will present this morning is document N. G. 375 which will be, when formally offered in evidence, Exhibit 164. It is to be found beginning on Page 101 in the English text of Document Book 3-D.
Before we read that, however, we wish to read from the statute contained in Document Book 2, to be found on Page 19 of that book. This, as the Court recalls, has already been introduced in evidence. Before reading from that book I would like to wait just a moment until I send for the book from my office.
This is a statute from the 1939 Reichsgesetzblatt, Part 1, Page 1679 It is the decree of 5 September 1939 against public enemies. "Section 1. Looting the Liberated Territory. 1. Whoever is found looting the liberated territory or the buildings or rooms voluntarily vacated will be punished be death.
"2. Trials will be held by the Special Courts insofar as Military Courts have no jurisdiction.
"3. The death penalty may be executed by hanging.
"Section 2. Crimes During Air Raids. Whoever commits a crime or offense against the body, life or property, taking advantage of air-raid protection measures is punishable by hard labor of seven to fifteen years for life, and in particularly severe cases punishable by death.
"Section 3. Crimes of Public Danger. Whoever commits arson or any other crime of public danger thereby undermining German defensive strength will be punished by death.
"Section 4. Exploitation of the State of War is reason for more several punishment. Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of seven to fifteen years or for life or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable.
"Section 5. Speeding up Special Court Procedure. In all trials by special courts the verdict must be pronounced at once without observation o the time limitations if perpetrator is caught red-handed or if guilt is otherwise obvious.
"Section 6. Sphere of Jurisdiction. The provisions of this law are also applicable in the Protectorates of Bohemia and Moravia and also for those persons who are not German citizens."
There follows on the next page the signatures of members of the Government who signed the statute. We will not read those.
We turn to N. G. 375 on Page 101 of the English text. The first note which we shall read is a denial of clemency plea signed by Dr. Thierack in the case of Josef Schegerer.
"Certified Copy. In the case of Josef Schegerer sentenced to death of 25 August 1942 by the Special Court of the District Court Nuernberg-Fuerth as public enemy and dangerous habitual criminal because of bicycle thefts partly committed by taking advantage of the black-out- I decided, with the authorization of the Fuehrer, not to make use of the right of pardon, but to let justice take its course. Berlin, 24 September 1942, The Reich Minister of Justice, Dr. Thierack."
We turn now to the opinion verdict in the case which begins on Page 106 of the English text. It will be noted first on that page that the presiding judge in the trial which was held on 25 August 1942 was the present defendant Rothaug. We begin reading in the middle of the page with the name "Schegerer, Josef, born of 6 November 1905 in Straubing, single, farmlaborer, last without fixed residence, in detention for this case as a dangerous habitual criminal according to Article 1 of the law amending the Penal Code, for four crimes according to Article 2 of the Decree against Public enemies in connection with recidivist theft as well as for 15 offense of recidivist theft has been sentenced to death and to the loss of civic rights for life and to pay all costs."
We turn now to Page 108 of the English text. I would like to point out to the Court there are a number of thefts involved in the total charge, the total sentence against the defendant in this case before the Special Court here in Nurnberg. We, for the present purposes, are interested in only the aspects of this case which have to deal with the statute which we have just read, the one against public enemies. We recognize the four thefts, the fight of which began on 108, and call your attention to the fact that Cases Nos. and 8 on that page and Cases 13 and 19 on the following page have appendic which appear on Page 9 and 10. With the Court's permission I will read the applicable appendix to each case as I come to it.
Caso No. 7. "On 4 October 1941, between 19 and 21 hours, the accused stole a man's bicycle from the entrance of the inn Streissl in Trieching belonging to the mill owner Johann Hafner in Trieching. The very same height the defendant rode on the bicycle to Bogen, where he left it standing in front of the station inn."
Appendix to Case 7. "At the time when the defendant stole Hafner's bicycle complete darkness had already set in. In the vestibule of the Streissl inn in Trieching there is an electric lamp on the ceiling, which is covered up by blue cloth. Therefore in the evening the vestibule of the house is considerably darker in normal times. This fact the defendant turned to his advantage, as it was already dark when he committed this action."
Case No. 8 "On 6 October 1941, about 2000 hours, the defendant stole in front of the inn Reubl a man's bicycle, which belonged to the mayor Eisenreich of Rengersdorf."
Appendix to Case 8. "The bicycle of mayor Eisenreich stood in front of the Reubl inn, which is situated on the highway. On account of the black out measures the street was not lit up, nor did any light show from the inn's darkened windows. These circumstances prompted the theft, because it was already dark when it was committed."
"Case 8. On 6 October 1941, about 20.00 hours, the defendant stole in front of the inn Heubl a man's bicycle, which belonged to the mayor Eisenreich of Rengersdorf.
"Appendix to 8. The bicycle of mayor Eisenreich stood in front of the Reubl inn, which is situated on the highway. On account of the black-out measures the street was not lit up, nor did any light show from the inn's darkened windows. These circumstances prompted the theft, because it was already dark when it was committed.
"Case 13. In the evening of the very same day, 17 October 1941, about 21.30 hours the defendant stole in Ascha a man's bicycle, which belonged to the private Wolfgang Heitzer. After a short ride he abandoned this bicycle too owing to a puncture.
"Appendix to 13. The theft of the man's bicycle belong to private Heitzer was also committed in complete darkness. The vestibule of the Ponk Inn, from where the defendant stole the bicycle. The darkened on account of the black-out, that is to say it was but poorly lit. This facilitated the deed.
"Case Number 19. Next day, 25 October 1941, at about 20.30 hours the defendant stole a man's bicycle in front of the Bogen station restaurant belonging to the auxiliary worker Johann Hagn of Eglsee, parish of Hundersdorf.
"Appendix to 19. The bicycle of Johann Hagn stolen by the defendant stood in the area of the Bogen station inn, where the street passes by. Before the war street and area were lit up by a big electric lamp. The latter is now blacked out. As the defendant committed the theft after darkness had fallen, in this case he turned the black-out to his advantage.
"As far as the four cases, which we discussed, are concerned, the defendant was fully aware that he was committing crimes by turning the black out to his advantage and that his thefts were facilitated by the black-out to a very large extent."
The third full paragraph from the bottom in the English text, page 1 "Besides in the cases 7, 8, 13 and 19 the defendant committed an offense against article 2 of the decree against public enemies of 5 September 1939, because, in carrying out these thefts, he deliberately took advantage of the measures taken for air raid protection, namely the blackout.
"Therefore the defendant had to be sentenced on charges of four crimes under article 2 of the decree against public enemies combined with recidivist theft as well as on charges of 15 crimes of recidivist theft."
That is all of this case that we wish to call especially to the Court's attention at this time, and we therefore offer the Exhibit 164 which is Document NG-375.
THE PRESIDENT: It will be received in evidence.
MR. KING: The next document which we wish to introduce is Document NG-330, which will become when formally offered, Exhibit 165. It will be noted that we have just circulated to the Court and to the translators additional copies of this document. He have done this because the present copy in the English text, Document Book 3-D, is incomplete, and we would therefore suggest that the Court substitute the copy which we have just circulated for the copy which now appears in the English document book at page 99. It is incomplete. The German text is in good orders.
This material which we are about to read also pertains to the decree against public enemies which I read a few moments ago at the opening of the session.
This is a directive dated Berlin, 16 June 1942; it is addressed to the presidents of the District Courts of Appeal and the General Public Prosecutors at the District Courts of Appeal with the exception of Prague. The subject is Criminal Procedure in cases of plundering. The directive is signed by the defendant Schlegelberger.
"After big scale air attacks the judicature must be prepared to mete out immediate and drastic punishment in possible cases of plundering.
For this purpose I authorize the Presidents of the District Courts of Appeal to set up in my name immediately on the spot Special Courts, or to transfer to that place Chambers of the nearest Special Court or to reestablish it on the spot.
Furthermore, I authorize them, without previous report, to assign to these Special Courts judges who seemed suitable to them, and to see to it in advance, that deputies are available to replace them, in case one or the other should - possibly through repeated air attacks - not be able to attend.
These Special Courts must pronounce their verdict on the plunderers on the spot. Only those, who know by personal contact the misery of the people and impossibility of protecting their possessions after such an air raid, are capable of dealing with the plunderers with the necessary severe As soon as a plunderer is delivered from the Police to the Public Prosecuting Authorities, when offense and guilt are declared.
I expect the indictment and the verdict of the Special Court on the same day. In all these cases, where according to Article 1 decree against public enemies the death sentence is enforced, I expect to receive the report about execution of the sentence or about the pardon by telephone on the same day. At any given time I shall take the necessary measures for the speediest execution of the sentence from here.
Furthermore, I expect the Presidents of the District Courts of Appeal and the General Prosecutors and the Chiefs of the Justice Authorities to bring about and supervise personally the immediate and drastic judicial action on the spot, and in such a case to keep in personally close contact with the local Party officials.
Points of law which might cause doubts, are non-existent. If the case has been established as one of plundering prevailing opinion requires the application of Article 1 decree against public enemies, since a town, a part of a town, a block of buildings or only an empty building is on a par with an "evacuated region" or the "voluntarily evacuated districts or buildings" in the meaning of Article 1 decree against public enemies. But if the offense is not the kind that demands the severest penalty, then it is not plundering in the meaning of Art of decree against public enemies. In this case the indictment or verdict is pronounced from the point of view theft and similar offences, if occasion arises and as a rule as an offence by a Public Enemy, punishable according to Article 2 or Article 4 decree against public enemies."
That, as was pointed out earlier, is signed by Schlegelberger.
There appears on the next page a note together with what appears to be the draft of an ordinance which originated with the Hamburg Court. We will read the note at the top of the page but will not read the ordnance.
"Note: During the conference held among presidents on 26 June 1942 establishment of Special Court Chambers for cases of plundering was discussed. For Hamburg Councillor of the District Court of Appeal Haack shall be appointed as presiding judge, Councillor of the District Court Wehlen a deputy presiding judge and associate judge, Councillor of the District Court Ebers as associate judge and Councillor of the District Court Dauwes as deputy associate judge.
"In Bremen no special measures are necessary, as there the Special Court is available at any time."
It is dated 27 June 1942. We turn now to the letter on page 5 of the document as distributed. This is dated 30 June 1942 and is addressed to the Reich Minister of Justice, Berlin, and is signed Dr. Rothenberger.
"Your ordinance of 16 June 1942 -IV a 4. 1127/42 I made the following agreement with the Reich Commissioner for Defense KAUFMANN and the Superior SS and Police Fuehrer.
Immediately after big scale air raids, red placards, bearing the inscription: "He who plunders, will be shot" wall be posted during the same might by the police in such a way that they are clearly visible. The police will hand over the plunderers, immediately after they are seized to the Public Prosecution for trial by the Special Courts. Orders were issued to competent presidents of the Police by the Superior SS and Police Fuehrer, inform me personally by telephone of each case Of plundering which has bee handed over to the Public Prosecution. I took adequate measures to ensure immediate availability of a Special Court in every locality where air raids on a big scale are to be expected. After the pronouncement of the sentence the competent Chief Public Prosecutor will see to it that a larger number red posters than usual are available, in which the probable death sentence pronounced by the Special Court is announced.
These shall again be posted in such a way that they are obvious and clearly visible."
There appears on the last page of the document that was circulated another note which we shall read.
"Chief Public Prosecutor Dr. LEFFMANN rang up on 27 July, saying that according to a report from the criminal investigation police a case of plundering had taken place, in the course of which 3 French civilian laborers are said to have stolen one camera, a manicure box and various bottles of champagne, during the air raid in the night of 26 to 27 July 1942. The Chamber competent for cases of plundering (Councillor of the District Court of Appeal Wehlen, Councillor of the District Court Haack is ill) was notified immediately, so that it be available for pronouncing sentence on 28 July 1942.
On 28 July 1942, Dr. LEFFMANN reported, that the case requires clarification and cannot be tried immediately." And there follows two additional notes.
"1.) The trial took place on 1 August 1942. Two death sentences were pronounced. Herr Dr. LEFFMANN telephone to Berlin with reference to the extention of the sentences. Written reports were requested.
2.) The Councillor of the Local Court BARTSCH for further handling after his return.
dated Hamburg 3 August 1942" We offer formally in evidence as Exhibit 165 the document NG 530.
THE PRESIDENT: The document will be received in evidence.
MR. KING: We invite the Court and Defense Counsel to turn now to Document Book F, 3-F.
Before reading from 3-F, we would like to refer again to Document Book 2, on Page 26. This is an excerpt from the Book by Heinrich Henkel, entitled "German Criminal Procedure". It is from Page 438; paragraph heading, "Validity of Double Jeopardy and Breaches cf this Principle". The book was published in Hamburg in 1943. Reading from Pages 440 and 442 of that book:
"A criminal case on which verdict has been passed must not again become the subject of another criminal proceeding. This exclusive effect pertains to the subject of the case, both as regards the crime and the criminal.***According to the findings of the German Supreme Court and to the prevailing theory in accordance with these findings, the effect of be bis in idea includes with the history of the case submitted to the court for verdict. This theory, however, leads to unbearable consequences. In order to avoid these unbearable consequences, some courts recently have permitted the breach of the principle against double jeopardy in exceptional cases where jeopardy of a second trial is necessitated by the 'sound sense cf justice'".
We turn now to the first case in Document Book F, the Document NG 655, which will be Exhibit 166 when formally offered in evidence. This is a case heard before the Special Court for the area of Stuttgart Court of Appeals in Stuttgart. We shall read portions from the opinion verdict. First, from Page 1:
"In the name of the German People:
"Verdict "In the Criminal Case against "1. The unskilled laborer "Hermann Wirbel, married "born on 11 August 1902 in Heusweiler, district Saarbruecken, living at Stuttgart-Bad Cannstatt, at Roemerkastell 147, now in penal detention for other offenses at Stuttgart prison pending judicial investigation "2. the driver and member of the Armed Forces "Emil Baumann, married, "born on 4 March 1908 at Stuttgart-Untertuerkheim, living at Stuttgart, Obernitzerstrasse 13, now in detention for other offenses at the Wehrmacht Prison at Bruchsal."
Those two defendants are the ones with whom we are primarily concerned in this case and only incidentally will refer to the others.
We turn now to Page 3 of the English text, which is at the bottom of Page 3 in the German.
I have neglected to point out until this time that the presiding judge at the trial, the President of the Senate, was the defendant Curhorst, as can be seen from referring to the bottom of Page 2 of the English text and the top of Page 3 of the German.
Reading now from the top of Page 3 in the English text:
'1. The defendant Wirbel as a dangerous habitual criminal and parasite is condemned "to death "and to permanent loss of civic rights as an habitual criminal and a parasite for continued participation in crime against Article 4 of the regulation against parasites, together with repeated theft, and for a crime against Article 1 of the war economy decree, including the offenses for which he was condemned by verdict of the Special Court at Stuttgart on 26 August 1941.
"II. The following are also condemned:
"1. The defendant Baumann for continued participation in crime against Paragraph 4 of the regulation concerning parasites, together with theft and for a crime against Article 1 of the regulation concerning war economy, was sentenced to "penal servitude for six years "and to the loss of civic rights for a period of six years, including the prison term of two years to which he had been condemned by verdict of the Special Court, Stuttgart, on 26 August 1941."
We ask the Court to turn new to Page 9 of the English text, which is 12 in the German text:
"B. Offenses committed by Wirbel and Baumann.
"1. Previous history.
"In spring 1941 in the course of police investigations into illegal trading in materials, it was discovered that the defendants Wirbel and Baumann had stolen such goods from the goods sheds of the Stuttgart Main Station and supplied various receivers of stolen goods, particularly to the textile dealer Adolf Mistele. At that time, however, it could only be established that both defendants had together stolen 7 bales of cloth between the beginning of January 1941 and 20 January 1941 and that Wirbel alone stole 5 more bales of cloth till March 1941. An indictment was filed against them, and they were sentenced by the Stuttgart Special Court on 26 August 1941, Wirbel to 4 years penal servitude for a crime against Article 4 of the decree against parasites in connection with repeated theft and in connection with an offense according to Article 1 of the War Economy Decree, and Baumann to 2 years' imprisonment for theft in connection with an offense against article 1 of the War Economy Decree, but not on his character as a parasite. This verdict is legal.
"In September 1941 it appeared that the defendants had committed such thefts of freight goods to a considerable extent for some time and had passed on the stolen property to numerous hitherto unknown receivers of stolen goods, and an indictment is being filed against Wirbel and Baumann.
"II. General facts of the case.
"The following facts were established in the main trial. Wirbel and Baumann had known each other for some time, since the time when they both lived in the Weberstrasse in Stuttgart. In the winter of 1938/39 they met again frequently on the goods station at Stuttgart. Both of them had to take or fetch goods from there for their firms, Baumann by means of trucks. In about February 1939, while they were working in the freight goods sheds, Wirbel first suggested to Baumann that they should steal goods stored there and sell them for their own profit. Baumann agreed to this suggestion, and from then on, the defendants, for the main part together, but occasionally separately, stole bales, chests and parcels from the goods sheds. There was a pause in these thefts while Baumann was absent as a soldier and Wirbel was serving a sentence from March until June 1940 for performing an abortion, but as soon as Bauman in summer 1940 had leave from his unit, where he had also stolen, the thefts were continued in the same way as before. The method of procedure when the defendants worked together, was usually that Baumann removed the objects which seemed worth stealing and put then onto his truck, while Wirbel occupied himself with the railway officials who happened to be in the neighborhood in order to divert them. The last thefts committed by the defendants were those for which they had already served a sentence according to the verdict of 26 August 1941. The damage done by then amounts to at least RM 12,000, according to a close estimate; only a small part of the stolen goods were redeemed."
We will review briefly the thefts committed between certain dates. On page 10, it is noted that thefts 1 to 5 were committed between the months February to September 1939. On Page 11 of the English text, thefts 6 to 14 were committed from the beginning of war until 6 May 1940. Also on the same page, thefts 15 through 19 were committed from July until 9 November 1940.
We turn now to Page 13 in the English text, Page 19 in the German. We read first from the paragraph V, Legal Appreciation.
"1. These thefts which were committed by the defendants Wirbel and Baumann, by the former under the conditions of repetition, have been committed by both defendants on the basis of a uniform and premeditated design which had been devised in order to steal, either in conscious and wilful cooperation or alone, the goods stored in the goods-depot which were worthwhile stealing. This design was not discontinued by the temporary absence of Wirbel who was in prison nor by the absence of Baumann who was in the army, for the immediate resumption of the thefts after the defendants had again appeared in Stuttgart, proves that they never had abandoned that idea. This design doubtlessly did not only comprise the thefts which are now under indictment, but also the thefts punished through the sentence of 26 August 1941, especially because the thefts mentioned under 16. 28. and. 29 as regards time probably belong to the instances on which judgment has already been passed. In the judgment, as the argument proves, the defendants have already been sentenced for repeated offenses. Therefore, the continued question had first of all to be examined whether the objection that it concerned a case which had already been judged, would not preclude a new condemnation. The Special Court has answered this question in the negative according to the newest jurisdiction and conception of the law. It is true that from a legal point of view the same act is concerned; but its actual extent has become much larger and lets the whole affair, not only as to the act itself, but also as regards the offenders, appear in such a different light, that one can no longer speak of one and the same "act", "To 7 thefts and 12 thefts respectively, 30 and 29 further thefts are now added.
Previously Wirbel's thefts covered less than 3 months, Baumann's less than 3 weeks. Now it is a question of thefts which cover nearly 2 years. It would be a contradiction of the ideas of justice and the security of the national community if only a purely formal conception of the crime were considered, and the criminal proceedings wore considered as consumed. It is far more a question of a fresh crime, parts of which have already been tried legally while all the remaining parts are to be tried now. As a single continued action covering all details is concerned here, this action can only be judged legally as a whole, and only one punishment can be imposed, to which penalties imposed by the previous sentence will be taken into consideration as far as possible."
We turn now to Page 15 in the English text, which is the beginning of Page 23 of the German.
"VI. Award of punishment.
1. Wirbel. While, according to the evidence of 26 August 1941, the defendant did not appear to be worse than the average war criminal, now, from the result of the facts established against him, there can be no doubt that he is a particularly hardened habitual criminal. In August, it looked as if it were a question of a small number of thefts committed within a certain space of time; now it has been established that the defendant made a good living by a series of robberies committed over a period of 2 years. There is no question of necessity in the case; admittedly it is clear that it was not easy for the defendant to keep his large family, but as in numerous other cases, it should have been possible for the defendant under present conditions if he had worked accordingly. But he preferred, particularly since the outbreak of war, to shirk work on the pretext of illness, and during that time he applied himself to the more comfortable and profitable business of theft. In this way he not only caused considerable material damage, but he also injured the general safety and reliability of goods traffic. He was also the driving and leading force in the thefts and disposing of the goods, and he had a good part of the profit of all the black market deals which developed through his actions.
The defendant is therefore a man, who, while men of his own ago are risking their lives for the Fatherland, he is making the home country unsafe by his criminal activities as a habitual criminal, a parasite of society, and a black-marketeer. There is no room for him in the community of the people; rather more, as an general deterrent for the protection of the community, and to fulfill the need for just atonement WIRBEL should be eliminated immediately and for over from the community of the people. This had to be done in accordance with Article 1, combined with Article 10, Section II of the law for the Amendment of tho Penal Code, of 3 November 1941 (Reichgesetzblatt, Page 549), and also in accordance with Article 3. of the Decree against Parasites of Society. On account of these regulations, tho defendant WIRBEL was sentenced to death and in accordance with Article 32 of tho Penal Code, to permanent loss of civic rights.
In view of the sentence gassed, an explicit order for protective custody was not issued. There was also no possibility of his taking into consideration the penalty inflicted on him by the sentence of 26 August 1941."
2. BAUMANN We had to consider in his favor, that his previous conviction was a long time ago, and that this was tho first time ha had become liable to a heavy penalty.
Also taken into consideration as extenuating circumstances, was the fact that the incentive for the various thefts was provided by WIRBEL, BAUMANN, however, took part in them to the same extent, and in the main received the same advantages from the crime. He also continued to steal when he was in tho army, and misused his leave for the same purpose. The serious damage he had caused, the danger to the safety of goods transport, and. the need for a deterrent for such crimes, all had to be considered as aggravating circumstances. As a parasite of society, he had shown an intensive desire to commit crimes and accordingly he had to be punished. 6 years' penitentiary and loss of civic rights for the same period seemed to be a suitable punishment. The penalty of 2 years' imprisonment inflicted on him by sentence of 26 August 1941, was to be included in this punishment."
JUDGE BRAND: May I ask a question, please? Do you have, without undue inconvenience, the reference to the statute against parasites to which this case refers?
MR. KING: The statute to which the president of the Stuttgart Court referred to here is the one which, I believe I am correct in this, we briefly read this morning appearing on Page 19 of Document Book 2.
With the exception of calling attention to the fact on Page 28 of the English text that this opinion is signed by a representative of Cuhorst -- by an assistant in Cuhorst's absence -- we offer as Exhibit 166 the Document NG-655.
THE PRESIDENT: It will be received in evidence.
MR. KING: It has just been pointed out to me that I have misinterpreted the signature at the conclusion of the verdict opinion in NG-655. The opinion is signed by Cuhorst in his capacity as president of the courts and also for an assistant who was absent.
As Exhibit No. 167 we would like to introduce a.t this time the Document NG-571, which is to be found on page 29 of the English text, Document Book III-F, and on page 48 cf the German text. This is a sworn affidavit: "I , Otto Kleinknecht, legal assistant to a lawyer, residing at Heilbronn, Solothurnerstrasse 29, hereby declare under oath: I was born on 12 June 1901 in Stuttbart. I passed my second state examination in the Winter of 1927/28. In January 1928, I became assessor in the public prosecution's office in Stuttgart, where I remained until the collapse in the spring of 1945, with the exception cf one; year which I spent working as assessor at the local Court of Stuttgart. Around May 1941, I was transferred by Senior Prosecutor LINK to Division I of the public prosecution office in Stuttgart, which at the same time was the prosecution's office cf the Special Court. I had to deal almost exclusively with cases of crimes against war economy. I have been a member cf the NSDAP since 1933.
I would like to state the following about CUHORST who was then the presiding Judge of the Special Court.
I thought it objectionable that CUHORST, whom I had known already as assessor, was pressing for a post as presiding judge cf the Special Court in spite cf the fact that he was lacking the judicial qualities for such a high position. Doubtlessly he was promoted so quickly only because he was an old and active Party member. I could not say to whom he owed his quick promotion.
CUHORST must be reproached with the following:
He had a cynical way of conducting trials, which must have aroused, even in people not unjustly sentenced, a feeling that they had been wronged. The way CUHORST conducted a trial was unworthy from a human point of view. He often interrupted defendants, cut short their statements and frequently treated the case only on the basis of the indictment, without having the necessary knowledge cf the documents. This used to enrage us public prosecutors and it induced me and my colleagues to prepare the inquiry and the indictment in as detailed a manner as possible. His attitude towards the defense can best be inferred from the fact that even in long and very complicate 1130 complicated war economy cases, he used to hand ever to the defense counsel documents, often consisting cf several hundred paces only a short time before the main trial took place.