"I am forwarding the following records:
"1.) Records against Kindermann.
"Statement of the offense: Intentionally damaging parachutes during the process of manufacture.
"The opinion given by the Supreme Command denied the endangering of the preparedness of the German defensive strength. Sentence per par. 303 of the penal code: 1 year 8 months prison sentence. Requested by prosecution per par. 304 of the penal code: 3 years prison sentence.
"2.) Records against Vanecek (member of the protectorate)."
My we interpolate here a moment -- it scarcely is necessary but just for purposes of the record, whenever the word "protectorate" occurs, it of course refers to the two Czechoslovakian states of Bohemia and Moravia, which were annexed to the Reich by the rather euphonious term of "protectorate."
"Statement of the offense: The defendant had to manufacture floorpieces for tanks and to drill holes in same. In at least three cases, he intentionally and wantonly perforated or drilled wrongly so that the pieces became useless. In his report to the Supreme Command, the chief prosecutor expressed that he considered it a punishable act in reason of par. 143a of the penal code. The Supreme Command, however, denied the endangering of the German Armed defensive strength.
"Sentence of the Special Court Dresden per par. 304 of the Penal Code in connection with par. 4 of the 'Decree of Public Enemies":
"3. Records against Skuhravy (member of protectorate)" That is rather poor translation. It's not a member of the protectorate.
That means a citizen of the protectorate.
"Statement of the offense: The defendant was employed in the manufacturing department of the Saechsische Guss-Stahlwerke in Freital-Deehlen to mount the heads on 17 cm grenades, after same had already passed the control. On the 3.9. 1943 he intentionally marked a grenade provided already with the control-notch with a further notch so that the projectile had to be retained as scrap.
"The chief prosecutor assumed in his report to the Supreme Command an offense dealt with in par. 143a of the Penal Code. The Supreme Command however denied the endangering of the preparedness of the German Armed Forces.
"Sentence of the Special Court Dresden in reason of par. 304 of the Penal Code in connection with par. 4 of the 'Decree against Public Enemies' was two years penitentiary.
"Requested by prosecution: 1 year 3 months penitentiary."
We will omit reading the remainder of these reports on individual cases except to remark that in each case it appears to be a circumstance of either deliberately or negligently interfering with the proper manufacturer of war material munitions. In each case, the opinion of the Supreme Command of the Armed Forces was indicated, and then the public prosecutor's demand is indicated, and then the sentence is indicated. This is all considered in light of the statute which we read just before the noon recess on Page 22 of Document Book 2.
The final portion of this document that we care to read is found on the last page of the original. It's entitled: "Note."
"After formal verbal report before the Kutzner; I have discussed the matter with the chief public prosecutor Jung by telephone today:
"If the opinion given by the Supreme Command of the Armed Forces is not satisfactory, the stress should be laid on different viewpoints as the Decree against Public Enemies or complicity with the enemy, even if the Supreme Command of the Armed Forces denies the endangering of the preparedness or characterizes the case incorrectly as less serious. The chief public prosecutor Jung considers his suggestions herewith as settled."
That note is handwritten and any signatures on it cannot be deciphered. The prosecution offers as Exhibit No. 173, Document NG-423.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: At this point, the prosecution returns again to Document Book 2, Page 24. For benefit of defense counsel, the statute on that page is 1939 Reichsgesetzblatt, Part 1, Page 1841, entitled "A Law for the Changing of Regulations concerning General Penal Proceedings, the Armed Forces Penal Law, and the Penal Code.
"Article 2, Extraordinary Appeal."
Skipping to Section 3 is the "Extraordinary Appeal against Legally Valid Sentences.
"(1) Against legally valid sentences in criminal proceedings the Senior Reich Prosecutor at the Reich Supreme Court can file an appeal within one year after they have been pronounced, if, because of serious misgiving, concerning the justness of the sentence, he considers a new trial and a new decision in the cases necessary."
Skipping to sub-section (3):
"If the first sentence was passed by the People's Court, the Appeal is to be filed by the Senior Reich Prosecutor at the People's Court and the second trial is to be held by the Special Senate of the People's Court. The same applies to the sentences of Courts of Appeal in cases which the Senior Reich Prosecutor, at the People's Court, had transferred to the Public Prosecutor attached to the Court of Appeals, or which the People's Court had transferred for trial and sentencing to the Courts of Appeal."
Skipping now to Section 5 of Article 2:
"The Special Senate of the People's Court.
"(1) The Special Senate of the People's Court consists of the President and of four members.
"(2) The Special Senate is presided over the the President of the People's Court and, if he cannot be present, by the Vice-President, One of the members must be a Senate President or a Councillor of the People's Court.
"(3) Members and their deputies will be appointed for the duration of two years by the Fuehrer, on the basis of suggestions submitted by the Reich Minister of Justice."
Turning now to Page 35 of English Book 2. For the benefit of the defense, this is a Statute published in 1940, Reichsgesetzblatt, Part 1, Page 405. It is entitled: "A Decree of 21 February 1940 Concerning the Jurisdiction of the Criminal Courts, the Special Courts, and Additional Provisions of Criminal Procedure."
Skipping to Article 26 of that Statute, which is found on Page 35 of Book 2.
"Article 26, Incentestability.
"1. There is no legal appeal against a decision of the Special Court."
Skipping now to Article 34.
"Conditions for a petition for nullification.
"The Chief Public Prosecutor may lodge a petition for nullification with the Supreme Court against a final judgment of a Judge of the Criminal Court or of the Special Court, within one year from the date of its becoming final, if the judgment is not justified because of an erroneous application of law on the established facts."
THE PRESIDENT: I call your attention to the fact that in Article 34, that language does not appear in the copy.
MR. WOOLEYHAN: Yes, but the language is there. The typed copy omitted the words: "Article 34." That should be inserted just under the asterisk.
Turning now to page 78 in the English Book III-E, we find Document NG-312; NG-312 is a sworn affidavit, reading as follows:
"I, Paul Barnickel, depose and state as follows:
"I was Public Prosecutor at the People's Court from 1 December 1938 until 1 December 1944. My section was Section IV of the Public Prosecution, and Section V from 1 January 1944 on.
In 1943 my section handled more than 3,000 cases altogether, among which about 2,500 concerned subversive activities against the Armed Forces.
Both Supreme Courts, the People's Court as well as the Reich Supreme Court, were competent to show cause for extraordinary appeal. We in the People's Court handled only political cases.
"The extraordinary appeal was made not only against verdicts of the People's Court, but also, and chiefly, against verdicts of the Courts of Appeal.
"There were two channels for this.
"Insofar as political cases were concerned - political proceedings were turned over by the People's Court exclusively to the Courts of Appeal - the verdicts of the Courts of Appeal were submitted to the People's Court or rather to the Attorney General Dr. Lautz, and were then sent to the section of the Public Prosecution which had worked on the case previously. There the verdict was examined. If, for instance, the man in charge of the case" -- Do you wish to make an objection at this time?
DR. GRUBE: (Attorney for Defendant Lautz) May it please the Tribunal, I do not know whether this is the right moment for reading out this affidavit, since Barnickel, who gave the affidavit, is present himself, and will be examined in the course of this trial.
I consider this objection necessary because this affidavit states as facts and names, among points, that do not agree with the actual conditions and with the legal situation concerning the extraordinary objections of the extraordinary appear. I would, therefore, like to object against the reading out of the affidavit, and should like Barnickel to be heard on this matter when he is examined.
THE PRESIDENT: Is it necessary for the Prosecution to be heard? We have no assurance that Dr. Barnickel will ever be called by the Defense, and there is no requirement surely on the part of the Prosecution to call him personally; they have a right to use any statement he makes against his interest.
MR. WOLLEYHAN: If the Tribunal please, I would like to say but one word with regard to the objection. We agree with the Tribunal that there is no need for discussion on the point just mentioned, but with regard to the credibility of whatever is said in this affidavit, that is not a matter of argument on the part of the Defense at this time, but if such a lack of credibility does exist, it is incumbent on the Defense to show.
For the benefit of the court, I am going to reread about four lines here so that the though is not disturbed.
"Insofar as political cases were concerned - political proceedings were turned over by the People's Court exclusively to the Courts of Appeal - the verdicts of the Courts of Appeal were submitted to the People's Court or rather to the Attorney General Dr. LAUTZ, and were then sent to the section of the Public Prosecution which had worked on the case previously. There the verdict was examined. If, for instance, the man in charge of the case was of opinion that the verdict was contrary to the entire usual jurisdiction, he went to his Public Prosecutor and discussed it with him.
If they agreed that the verdict was unjustifiable or that some legal concept had been changed, the case was submitted to the Attorney General Dr. LAUTZ. A report was then addressed to the Ministry of Justice stating that the Attorney General was of the opinion that in this case the extraordinary appeal should be made.
This report went to a section of the Ministry of Justice which was under Ministerialrat Dr. FRANKE.
This was one of the channels, the channel from the Public Prosecution to the Ministry of Justice. Then there was a second channel, the channel from the Ministry of Justice to the Public Prosecution.
The Ministry of Justice received all verdicts, not only those from the People's Court, but also the verdicts from the Courts of Appeal. They were examined in Dr. FRANKE's section and if they were objected to, they were returned to the Chief Public Prosecutor, Dr. Lautz with an accompanying letter, a so-called ministerial decree which was usually signed by Dr. FRANKE himself. In this letter the objections of the Ministry of Justice were stated, and then it said something like: "Please examine whether the extraordinary appeal should not be made for such or such reasons". This letter was naturally received by the Chief Pub. Pros. Dr. Lautz was was sent from there on to the competent section of the Public Prosecution. This section examined the case and made its suggestions to the Chief Public Prosecutor, Dr. Lautz. In case the request of the Ministry of Justice for extraordinary appeal was rejected, it was reported that, for such and such reasons, the Chief Public Prosecutor was of the opinion that no extraordinary appeal should be made. Sometimes the Ministry of Justice accepted the fact. But it also happened that the Ministry of Justice requested once more that the extraordinary appeal be made and then the Chief Public Prosecutor Dr. LAUTZ could not but make the extraordinary appeal.
As for my section, I cannot remember that it ever happened that we suggested the extraordinary appeal to the Chief Public Prosecutor Dr. LAUTZ. All such requests were sent to us by Dr. FRANKE's section in the Reich Ministry of Justice.
It was probably in 1943 to 1944 that most of the extraordinary appeals were made in the sphere of subversive activities against the Armed Forces and defeatism, because this was the sphere in which the Ministry of Justice became more and more interested.
The extraordinary appeal was made to the People's Court. The following document was drawn up by the Public Prosecution: "To the President of the People's Court. I appeal against the judgment of such and such date." Then came a short argument. The document was signed by the Chief Public Prosecutor, Dr. Lautz. The Court could not object to the extraordinary appeal, it had to accept it.
With the extraordinary appeal the verdict of the Court of first instance was quashed. No new charge was brought since the extraordinary appeal itself represented a new charge.
Then new proceedings took place before the special Senate of the People's Court. This Senate handled exclusively extraordinary appeals and was the only one competent for such cases.
I recollect no case in which the request for extraordinary appeal had been made by the Ministry of Justice in order to have the sentence reduced. It as always a request for severer punishment.
Even before the introduction of the extraordinary appeal into the criminal procedure there was a way to appeal against judgments.
That was to have a retrial. The judgment could be altered in the defendant's favor or otherwise. It was impossible, however, to have a retrial merely to obtain a severer sentence for the defendant. The main point in the retrial was that after the proceedings basic evidence had to be brought forth which was unknown before. Whereas in the extraordinary appeal it was not necessary to submit new evidence, and the existing evidence had only to be examined from a new angle.
I have read the above statement consisting of four pages in the German language, and declare that it is the whole truth according to the best of my knowledge and belief. I have had the opportunity to make changes and corrections in the above statement. I made this declaration voluntarily without any promise of reward and I was not subjected to any duress or threat.
Nurnberg, 13 November, 1946 Signed, Dr. Barnickel."
The Prosecution offers into evidence as Exhibit No. 174 the Document NG-312.
THE PRESIDENT: The document will be received in evidence.
The Prosecution refers once more to book No. 2, page 26. For the benefit of the Defense Counsel, this is an excerpt from a book entitled "German Criminal Procedure" (Hamburg, 1943) by Heinreich Henkel. On page 438 of that book appears the title: "Validity of Double Jeopardy and Breaches of this Principle." Beginning on page 440, I quote from 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 ne bis in idem includes the history of the case submitted to the court for verdict. *** This theory, however, leads to unbearable consequences. In order to avoid the breach of the principle against double jeopardy in exceptional cases where jeopardy of a second trial is necessitated by the 'sound sense of justice'" ***
THE PRESIDENT: I think Mr. Prosecutor that you read that document just before noon.
MR. WOOLEYHAN: I certainly beg the Court's pardon.
Turning now to page 82 of document book 3-E; that is, document NG 348. NG 348 is a sworn affidavit which reads as follows:
"Sworn Affidavit "I, Guenther Nebelund, swear, testify and declare:
"The judiciary members of the Special Senate of the People's Court were, according to my recollection:
"People's Court Judge Greulich and People's Court Judge Lemele. Of the honorary members I recall only Hans Petersen.
"The Special Senate dealt only with cases in which an extraordinary appeal had been filed against the original sentence. The purpose of the extraordinary appeal was primarily that of rendering the sentence more severe. Statistics dating from the year 1944 gave, according to my recollections, a total of 70% death sentences for this Special Senate.
The judges of these Special Senate know, of course, that the original sentences had, in each case, been rejected by the Senior Reich Prosecutor Dr. Lautz or by the Reich Ministry of Justice. Besides, the Minister's desire for a different sentence was indicated in the Senior Reich Prosecutor's plea during the re-trial. I am convinced, however, that no judge of the People's Court would have voted for a sentence which he did not consider justified under the circumstances.
"The work at the People's Court was a heavy strain on the conscience, since it involved the severe punishment of defendants who were often not criminals, but simply People with different political convictions; that sort of work is no fun. The primary penal intent was to set a warning example.
"I have read the above statement, consisting of one page, in German and state that it contains the complete truth according to my best will and belief. I had the opportunity to make changes and corrections in the above statement. I have made these statements of my own free will, without any promise of reward, and I was not exposed to force or threats.
"Nuremburg, 26 November 1946, (signed) Guenther Nebelung."
DR. DOETZER (for defendant Nebelung): May it please the Tribunal, I should like formally object to the submission of this document. The document does not show that Neberlung was instructed, was told, that this document was to be used in a trial against himself, and, therefore, he would have been justified in refusing the statement. I believe that should have been done, told that it was to be used here. Therefore, I ask you to go into my objection.
MR. WOOLEYHAN: May it please the Court, in answer to Defense Counsel objections, we wish to invite the Court's attention to the date of this affidavit, that is, when it was taken. On page 83 of the English document book it appears that this affidavit was taken on 26 November 1946, Nurnberg. At that time the defendant Neberlung had not been indicted; he was not a defendant.
The indictment was not served until some weeks later. The affidavit which has just been offered in evidence was in the nature of a pre-indictment investigation; and, in fact, any pre-trial investigation may eventually be used in evidence is implicit. The Prosecution submits it was no encumbent upon the investigation, at the time this affidavit was taken to inform the defendant that it might in some future time, be used against him. However, at the time the affidavit was voluntarily given, he was not a defendant and had not been indicted.
THE PRESIDENT: The objection will be overruled. Are you offering the exhibit.
MR. WOOLEYHAN: We are, your Honor.
THE PRESIDENT: It may be received in evidence.
MR. WOOLEYHAN: The Prosecution offers as Exhibit No. 175, Document NG 384; and, I gather it has been received.
THE PRESIDENT: Yes.
MR. WOOLEYHAN: We turn now to page 84 of book "E" which is document NG 396. NG 396 is a sworn affidavit which reads as follows:
"I, Hans Petersen, swear, testify and declare:"
DR. ASCHENAUER (for defendant Petersen): In regard to the presentation of this affidavit, I wish to raise an objection. I have made my objection in writing and I have made repeated motions. The last mentioned is dated 27 February 1947. Repeatedly I have pointed out and under the circumstances under which this affidavit came about, I pointed out in what psychological position the defendant was in on account of sickness. The defendant Petersen was from the first of June until the end of August, 1946, in the Langwasser camp. He was ill and then the patient was moved to Regensburg camp where his medical treatment was continued. His physical condition can be described as furunculosis. In the Langwasser camp Petersen was declared as not movable. The medical treatment was interrupted and he was moved to Nurnberg.
Although the defendant was intended to be taken to a closed cell, he collapsed in Regensburg. Here the medical treatment for circulation disturbances was continued, which only at Christmas 1946, improved.
Ten days ago I made the motion concerning this state of affairs, to call as a witness the court physician, Dr. Pflueger. The cell in which he was located a window was missing and it was detrimental to the health. This state of affairs is proven by the fact that Dr. Pflueger, in his won time, got a piece of cardboard to cover part of the window in an emergency way. Only later on when he was moved to another cell, on 6 January 1947, made the sickness of the defendant a little easier. In addition the defendant, in spite of his illness, did not get sufficient food. From Christmas 1945 until the present time, he suffered from starvation oedema, so that the American doctor saw himself compelled to prescribe special food for him; which, however, in effect, was never received. On the other hand, it is a fact that this affidavit is a document which is a summary compiled by the person who was in charge of the interrogations; in fact, it is a compilation of several statements made by Petersen. These statements, therefore, should be present together with the affidavit. Only then one would obtain a clear picture of the value of the affidavit. An affidavit which was made at the time of prison psychosis and illness is without any value. For that reason I would ask the Tribunal to make a decision, to make a ruling in effect, that the affidavit cannot be submitted in evidence.
MR. WOOLEYHAN: A brief word, if the Court please. The objection of defense counsel for the defendant Petersen --
THE PRESIDENT: Mr. Wooleyhan, I guess it will hardly be necessary to hear from you. We think from the statement made by counsel for the defendant Petersen no showing has been made against the admissibility of this document. You may proceed to use it. Perhaps I should explain for the benefit of defendant's counsel that the way is open to challenge the manner of taking it or the condition of the defendant at the time the statement was made. All such is defensive matter and will be heard at the proper time.
MR. WOOLEYHAN: If the Court please, quite apart from the manner in which the statement was secured, and whatever appropriate value it may have, the prosecution certainly does not want to be put in the position of having it appear that any duress or intentional mistreatment of this defendant took place, as being entirely beyond our control, these conditions.
THE PRESIDENT: Regarding anything of that kind, let it be shown by the defendant at the proper time, and proceed with your statement.
MR. WOOLEYHAN: N.G. 396 is a sworn affidavit reading as follows:
"I, Hans Petersen, swear, testify and declare:
"I was admitted into the NSDAP on 1 April 1925 at the occasion of the Party's second foundation. In 1933, effective 1 January, I joined the SA. On 1 January 1942 I was appointed chief of the Main Personnel Office of the SA. My last rank was that of Obergruppenfuehrer. In 1942 I was made a member of the Reichstag in lieu of the former Captain Pfeffer.
"I was honorary associate justice at the People's Court from 1941 or 1942 until the end of the war. At the beginning I was honorary judge in the 1st Senate. I remained there only a short time. Then I became a member of the Special Senate in the place of my predecessor, the former chief of the Main Personnel Office of the SA, Obergruppenfuehrer Raecke. This Special Senate only met to consider extraordinary appeals. Alto gether I participated in approximately 9 to 10 sessions.
All the proceedings concerning extraordinary appeals were very brief since the preliminary investigations were already finished. My last session took place in August 1944.
"The list of honorary associate justices was kept at the People's Court. It had been made up by Schlegelberger at Hitler's order. The decree of nomination was signed "Schlegelberger". Each of the political and military organizations had to submit nominations and one member of each organization was active at the People's Court at any given time. The honorary associate justices of the Special Senate were, besides myself:"
Then there follows a list of six honorary judges whose names we do not read but merely call to the attention of the Court their ranks and titles. There was a General, a Naval Captain, Police General, SS Brigadier, and another SS Brigadier.
"I no longer recall the names of the remaining associates, approximately thirty in number.
"The sentences of the People's Court can be understood only if one keeps in mind the intent underlying the penalties. This was not primarily that of imposing punishment in accordance with normal "bourgeois" conceptions of crime and punishment but rather of annihilating an opposition which could become detrimental to the German aims. This was our duty. Hence, after a defendant had been brought before the People's Court because of some act or utterance, his actual deed was of no particular importance in the determination of the punishment within the framework of the law. The important thing was whether the man had to be exterminated from the community of the people as a 'public enemy' because of his personal attitudes and his social or anti-social tendencies.
"I have read the above statement consisting of two pages in German and declare that this is the truth according to my best knowledge and belief. I had the opportunity to make changes and corrections in the above statement. I have made these statements of my own free will, without any promise of reward, and have not been exposed to force or threats.
Nuernberg, 3 December 1946. (signed) Hans Petersen."
Prosecution offers as Exhibit No. 176 Document NG-396.
THE PRESIDENT: The document will be received in evidence.
MR. WOOLEYHAN: Turning now to Document NG-333 found on page 87 of Book 3-E, NG-333 is a sworn affidavit which reads as follows:
"I, Guenther Nebelung, swear, testify and declare:
"I was the president of the 4th Senate of the People's Court in Berlin from 1 July 1944 until the end of the war. I was a member of the NSDAP since 1928. I was a lieutenant in the SA. The scope of the People's Court included high treason and treason, undermining of German defensive strength, sabotage and espionage. This field of work was divided up among the six Senates according to subject matter and geographical area. The 3rd Senate, for instance, specialized in cases of treason to the advantage of Poland and Soviet Russia; the 4th Senate in all other treason cases, high treason cases from certain districts, and sabotage.
"All verdicts first went from Senior Reich Prosecutor Lautz ---"
If I may interpolate here a moment, the word "verdicts" there is probably a mistranslation. I think it refers to indictments. I will check the original. The word in the original is "Anklage", which I believe is the German word for indictments, so if I may correct that here as we go along.
"All indictments first went from Senior Reich Prosecutor Lautz to the president of the People's Court, who then divided them up among the various senates. After the end of the trial the records, together with the sentence, would be sent back to the Senior Reich Prosecutor. If the Senior Reich Prosecutor, Dr. Lautz, was not satisfied with the sentence, he could file an extraordinary appeal against it. This was done, in my opinion, mainly as a result of orders by Reich Minister Thierack. After 1943 extraordinary appeals became more frequent. All cases in which an extraordinary appeal had been filed were tried again before the Special Senate of the People's Court. This Special Senate concerned itself ex clusively with extraordinary appeals.
Of all Senates of the People's Court this Special Senate pronounced the largest percentage of death sentences. According to statistics, which I saw myself, 70 percent of all sentences passed by the Special Senate during 1944 were, as I recall, death sentences.
"I know besides this no other means of contesting a sentence of the People's Court, except that the defendant could submit a clemency plea in case of a death sentence.
"After a death sentence of the People's Court had been confirmed, the Senior Reich Prosecutor Dr. Lautz arranged for its execution. After Thierack had become Reich Minister of Justice, he introduced the socalled 'guidance' of justice. This was accomplished by means of confidential 'judges letters' which were distributed to all judges. They appeared at irregular intervals. They described sample cases, mentioned the sentences and followed these up with a general statement by the Minister about them and his opinion on each of the sentences. These 'judges letters' were intended to serve as models and to contribute to the standardization of penal administration throughout the Reich.
"The preliminary investigations and examinations before People's Court trials were, in practice, handled exclusively by the Gestapo and then handed over to the 'Investigating Judges' of the People's Court. In order to be admitted to the People's Court a defense attorney had to be politically reliable and approved by the Gestapo and the National Socialist 'Lawyers League'. Without the prerequisite of political reliability he could not at any rate have remained a lawyer.
"The defense had the right to present evidence and to cross-examine witnesses. In practice, however, this depended upon the personality of the judge and of the defense attorney. No defense attorney could represent the cause of his client too aggressively, without risking thereby to get into difficulties with the Gestapo and the Lawyers' League. I consider it entirely possible that a defense attorney might possibly land in the hands of the Gestapo or in a concentration camp, if he had made himself obnoxious in this manner before the Peoples' Court or the Court of Appeals. Defense attorneys could get into precarious situations.
"I have read the above statements, consisting of two pages, in German and declare that this is the complete truth according to my best knowledge and belief."
Skipping to the signature, we find it reads, "Nuernberg, 21 November 1946, signed Guenther Nebelung."
DR. DOETZER: (For the Defendant Nebelung) May it please the Tribunal some mistakes have occurred in the translation which evidently resulted from the fact that the corrections of the defendant in his affidavit were misread.
On Page 1 of the photostat of the affidavit, the Defendant Nebelung made the following correction: "In 1944, according to our statistical, revi which I saw, as far as I remember-- " The copy which I have before me reads, "as far as my judgment goes."
On Page 2 of the affidavit, there is another mistake which changes the meaning. The Defendant Nebelung made a correction on that page. "The preliminary investigations, the investigations before the People's Court we in effect made by the Gestapo--" and now comes the correction"-- and were then forwarded to the investigation judges of the People's Court." It should not read "files referring to the investigation."
MR. WOOLEYHAN: Your Honor, this is a similar problem to one which occurred a while back. It is not connected with the translation. We compared the English translation which I read in Court with the German original. The German original is the correct translation. The error lies in that, in the first case, in copying this on a stencil for the defense, apparently, the wrong word was used.
In regard to "memory" the German word is "Erinnerung". That appears in both the English and in the original. The correct words will be going into evidence, and they were so translated.
The Prosecution offers as Exhibit Number 177, Document NG-333.
THE PRESIDENT: If defense counsel still insists that there is some error in translation, let that be worked out according to the usual procedure. The document, itself, will be received in evidence.
MR. WOOLEYHAN: May the Court please, could we rise at this time for our midday recess, or is it too early for that?
THE PRESIDENT: This is the usual time for the mid-afternoon recess.
MR. WOOLEYHAN: Could we have that at this time, please?
THE PRESIDENT: Yes. We may. We will take a 15 minute recess at this time.
(A short recess was taken)
THE MARSHAL: This Tribunal is again in session.
MR. WOOLEYHAN: The Prosecution continues with Document 676 which, in the English Book 3, is on page 90. This document appears to be a communication from the Reich Ministry of Justice in Berlin on 5 July 1944, addressed to the President of the District Court of Appeal and the Attorney General in Stuttgart. The subject of this letter is Jurisdiction of the District Court of Appeal Stuttgart in Cases of Defeatism:
"For some time now the jurisdiction of the Criminal Senate of the District Court of Appeal Stuttgart has given me cause for grave thoughts with regard to matters of defeatism. In the majority of cases the sentences are considerably too mild. They do not sufficiently bear in mind the thought of the protection of the people which must govern the punishment of defeatism, and are in an incompatible disproportion to the sentences which are in similar cases passed by the People's Court and by other District Courts of Appeal. I would refer especially to the following sentences which lately attracted my attention:
"1. Criminal case against Linder, sentence of the 2nd Criminat Senate of 7 January 1944.
"You made a report under date of 28 April 1944 on this case on the sentence. In view of the danger and of the frequency of the statements made, I must maintain the interpretation already expressed in my decree of 15 March 1944 that the defendant, a foreigner, deserved a severe sentence of penal servitude. I have therefore directed the files to the Chief Reich Prosecutor at the People's Court to examine the question whether the extraordinary appeal should be applied against the sentence.
"2. Criminal case against Unger. Sentence of the 1st Penal Senate of 22 February 1944 (President of the Senate Cuhorst).
"The defendant is an old active communist who apparently remained an activist also after the assumption of power and who has not given up his former opinions. His ago and the illness, to which you refer in your statement of 17 May 1944, did not prevent him again from making malicious communistic oral propaganda at an especially dangerous time. I must, in these circumstances, consider the sentence passed of two years' penal servitude, as being much too mild.