THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal overrules the objection.
DR. BRIEGER: Gentlemen, I should like to take the liberty to deal with one complex of questions quite briefly.
BY DR. BRIEGER:
Q. Witness, if I understood you correctly, you have stated during your testimony here that in one case -- I believe it was the defendant Grasser, -- Rothaug and Streicher attended the execution, and that this was against regulations. Did I understand you correctly?
THE PRESIDENT: One moment, please; one moment. There seems to be some misunderstanding. The Court does not approve of further examinations about who attended the executions. That objection was made earlier, and that objection was sustained. You should not proceed with that line of examination.
DR. BRIEGER: In other words, Your Honor, if I understand correctly, I am not supposed to put any questions which are concerned with executions?
THE PRESIDENT: That is correct. That is to say, not as to any testimony as to who attended executions.
DR. BRIEGER: May I put the question in such a manner, Your Honor, as to who was permitted to attend executions and what the legal basis for that is?
THE PRESIDENT: No, no.
MR. WOOLEYHAN: Are there any further Defense Counsel desiring to question this witness?
THE PRESIDENT: Are there any other Defense Counsel who desire to cross-examine this witness?
DR. DOETZER (Counsel for the defendant Nebelung): May it please the Tribunal, Dr. Doetzer for the defendant Nebelung. I have only a few questions to ask the witness, and I ask for the permission to continue the cross-examination.
THE PRESIDENT: Sustained.
I Apr 47-A - 20-2 - LJG - Schwab (Int. Uiberall) CROSS EXAMINATION BY DR. DOETZER:
Q. Witness, in the Direct Examination you were asked about the manner of proceedings displayed by Rothaug, and you were asked to make a comparison with the proceedings as conducted by the president, the presiding judge of the People's Court. I should like to ask you the following: Apart from the one session which you have described to us, did you ever attend any other session of the People's Court -that is, as spectator, an on-looker?
A. No.
Q. If I understand you correctly, therefore, only that one session which took place in this courtroom several years ago?
A. Correct.
Q. Therefore, you did not know the film which was shown here?
A. Yes, I know the film.
Q. How is it that you know the film, witness?
A. On Saturday -- last Saturday -- I was here, and, through Room 10, I received a pass to enter and to look at the film.
Q. Then you actually took part in the session of the court without the Defense, Prosecution of the Bench knowing about it?
A. That I don't know; I don't know whether the Court, the Bench didn't know me.
Q. I consider it reason for concern that a witness who is supposed to be a witness in a later session has an opportunity before he comes into the courtroom as a witness to take part in a session, and then to be asked about questions about the conduct of a People's Court, proceeding by Freisler which he has just become acquainted with during that session which he attended here.
MR. WOOLEYHAN: May it please the Court, the session on Saturday was open to the German public as well as to the American public. Surely the Prosecution can have no control over who goes into that courtroom or who doesn't; nor are we responsible for distributing tickets. Secondly, the witness yesterday, with regard to the conduct of the People's Court trial by Freisler, was carefully asked only with regard to the People's Court session that he attended in this room, personally, during the war, and not as regards any film.
THE PRESIDENT: There is nothing we can do about that. You may proceed with the cross examination.
BY DR. DOETZER:
Q. Witness, if I understand your answer correctly, you did not take any opportunity to listen to the senate of the People's Court under the presidency of Dr. Kronin, the deputy?
A. No.
Q. If I understand you correctly, if you answer to the comparison made by the prosecutor that the manner in which the proceedings were conducted by Freisler was "milder" than the proceedings under Rothaug.
A. "Milder" isn't the right expression; "more leniently." But, politically, Rothaug was in a position where he drew on more political experience whereas Freisler used his voice and the strength of his voice. I have pointed that out.
Q. I didn't quite understand that and I just wanted to elaborate on it. Was the manner in which Freisler conducted the sessions in the film -- was that the same as here in this courtroom under Freisler?
A. The impression, by comparing what I saw Saturday with what I knew when I was here, was the same. In other words, it was intolerable, yes.
DR. DOETZER: Thank you.
THE PRESIDENT: Do any other Defense Counsel desire to cross examine this witness? ... Apparently not. Have you any further questions, Mr. Prosecutor?
MY. WOOLEYHAN Very few, if the Court please.
REDIRECT EXAMINATION BY MR. WOOLEYHAN
Q. Dr. Ferber, on cross examination you stated that while Rothaug was still presiding judge at the Nurnberg Special Court -- that is, in the Spring of 1943 -- from that time on Poles were no longer transferred to the Special Court as a matter of course, but were handled without trial by the Gestapo. Is that true?
A. Apparently a small difficulty has to be cleared up. In the case of the Gestapo, that was not a trial at all because that special treatment by the State Police was really an administrative matter, and it was work that they had to send an inquiry to Berlin to the RSHA to get authorization from there according to the case.
Q. That is clear. However, I am interested -- I merely wanted to establish once again your statement that after the spring of 1943 Poles were no longer tried as a matter of course in the Special Court in Nurnberg; is that so?
A. Only those canes were dealt with here which had already started; new cases did not come up any more.
Q. If that is so, then of what nationality were those foreigners that were tried by the Special Court in Nurnberg under the presidence of Oeschey which you described this morning.
A. These foreigners in 1944 and in the beginning of the year 1945 as far as they were tried were from the western countries, that is to say, Yugoslavs, Ukrainians also who were not Poles; one made a definite dividing line, not according to the citizenship but they referred to belonging to a certain people.
Q. In addition to these Yugoslavs, Ukrainians, etc., that were tried by the Special Court in 1944, and early 1945, did any other foreigners appear before the Special Court?
A. Italians also.
AAlso Italians.
A. Yes, yes.
Q. In the case of Therese Mueller which has been discussed today, it developed during the cross examination that when the Reich Supreme Court sent that case back to the Nurnberg Special Court to be tried again, that the Reich Supreme Court in their opinion directed that the death penalty was mandatory. Now, Dr. Feber, when the Mueller case was tried the second time, was there any possible way in which the presiding judge could have avoided sentencing Mueller to death?
A. I can answer that question concerning defense counsel on that question by explaining that one could distinguish, one could determine whether according to the judgment the character of Mueller and based upon the motive, whether that was exhaustive enough and whether it was in addition to the reasons given in the first opinion and could have been used to ask for clemancy as to how far in that direction there existed any loop-holes can be seen from the opinion as a whole.
Q. In addition to legal loop-holes the presiding judge could decline to preside in a given case, could he not?
A. If the case of that kind was sent back to the Special Court, had been sent back to the Special Court from Leipzig, then it was mandatory that the case had to be tried again before the Special court, and the presiding judge of the Special Court could not decline to sit on that case; is that what you mean?
A. He could assign somebody else, but the case could not be refused from the Special Court.
Q. I understand that, but you did say just now that the presiding judge could assign some other judge to sit on that case; is that true?
A. Yes.
Q. A while ago it was brought out that Oeschey had showed leniency in two cases, and two cases were given as an example; one of them was of two cases, and two cases were given as an examples one of them was of two young girls, under twenty years of age, who had each looted one dress from a destroyed house; the other case was the case of the filching of a pair of gloves in Regensburg. I understood from your description and the defense counsel's discussion of those two cases that the death penalty was not pronounced in either case, and Oeschey presided in cach case. Now, Dr. Feber, tell the Court, if you can, does that mean that Oeschey could avoid pronouncing the death penalty in cases of looting if he was so inclined?
A. Avoiding the death sentence in cases of violation against the regulation pertaining to looting, that represented a possibility which was thought of by legislators and as far as legal literature was concerned found a great deal of acceptance.
That lead to discussions as to when one can speak of looting; it showed the true accuracy of my point of view that the laws which related to the death penalty, even these laws provided the possibility to avoid it. It was only a question as to how in individual cases one wanted to look at it.
Q. Thank you. Dr. Feber, after Rothaug loft Nurnberg for Berlin, for several months you acted as presiding judge, and were later succeeded by Oeschey; why?
A. Correct.
Q. Why were you dropped as presiding judge in favor of Oeschey?
DR. SCHUBERT (Attorney for Defendant Oeschey):
May it please the Tribunal, I protest against this question. The question was not put in direct examination; it was touched upon in the cross examination. Therefore, I believe that the prosecutor could not put this question now.
THE PRESIDENT: It seems as though he would have no means of knowing why unless he were a mind reader, and therefore that it is beyond the scope of the testimony -
MR. WOOLEYHAN: May I re-phrase the question, your Honor?
THE PRESIDENT: Without objection we will rule on it.
BY MR. WOOLEYHAN:
Q. Was any official explanation ever made to you of why Oeschey was made presiding judge on the Nurnberg Special Court, despite the fact that you had been acting in that capacity?
A. Yes. May I answer that question; am I permitted. The President of the District Court of Appeal competentl his name was Emmert. During an official trip that I made rumors had circulated that I be transferred, and had already sent this disposition through channels. After my return I was told by other judges, I was informed about that circular letter which caused me to go and see the President of the District Court of Appeal, Emmert, and immediately asked for an explanation what had caused, or what may have caused that to come about.
As far as the appointment and leaving from the office was concerned, the President of the District Court of Appeal was competent. He told me that political reasons made it seem desirable to him because the Gau and in the Gau executive office, and it was considered desirable to have Oeschey appointed President of the Special Court on the basis of his connection with the Gauleiter, that would be personally an advantage for me to avoid any political attack on the manner in which I would conduct proceedings.
Q. It has already been described by you that on one of the trips that the Special Court Nurnberg made to other surrounding cities and towns that it went to Kahn and that you would attend sessions in Kahn.
A. That is correct.
Q At any time while you were in session at Kahn, in your presence, did Oeschey ever compliment Rothaug on his conduct of trials?
A I remember one extensive session in the town hall in Kahm, that was in the year 1938; it may have been 1939; but at any rate before the war. The matter in question was that the Pastor of the Diocese of Regensburg was put before the Special Court to account for the sermon which he had delivered in Kahm. The Priest had a brother, who hold the office of a Gauleiter in tho HSDAP, who had been in that office; I do not recall his name; and that priest upon a request of the political office in Kahn was not brought to the hearing in the court room of the local court, but in the large hall in the town hall building, and in the presence of the entire political staff of the Kreisleiter Schlemmer, himself and others, and upon the specific request which you have put to me, I have to state that I know that Rothaug at the time received a sort of encouragement by Oeschey as far as political ideology and application of it by putting ideological questions and points against the clergy influence; that he was encouraged to do so which caused Mr. Rothaug after a lengthy intermission as we used to say, to lot his phonograph records run again.
Q You say, Dr. Feber, that during the intermission Rothaug received these encouragements on his ideological utterances; who gave those encouragements to Rothaug?
DR. SCHUBERT: (Attorney for Defendant Oeschey) May it please the Tribunal, up to now I have not protested against these questions, but since it appears that the questions are going into further details in this matter, I feel obliged to protest, and give the same reasons as I gave before.
I do not remember at all that during the direct examination or the cross examination any case of this kind was discussed, and I believe, therefore, that it is not admissible to have this matter discussed now afterwards.
THE PRESIDENT: We will not interfere with the examination at this time.
BY MR. WOOLEYHAN:
Q Answer the question, please.
A I don't quite remember the question now. I believe, if I remember correctly, you wanted to know who it was who gave that encouragement.
Q. That is right.
A It was an intermission, recess, and as public prosecutor I was active public prosecutor during that session.
JUDGE BRAND: Mr. Witness, counsel asked you who it was who gave the encouragement. Why don't you answer it directly, if you know; if you know tho name, state it.
A Oeschey, Mr. Oeschey.
MR. WOOLEYHAN: I think that concludes my re-direct examination.
THE PRESIDENT: We inquire at this time whether any other defense counsel desires to have further cross examination of this witness, at this time.
This apparently brings us to the question of when the cross examination shall begin. Of course, I have heard Dr. Koessl this morning that he would be ready if he had the transcript today. It is desirable to have the cross examination proceed as promptly as possible, but we will not hold you to any hardship at all, so if you don't get the transcript, we will not ask you to conduct your cross examination tomorrow. Does anyone know how far the transcript has progressed in the German language?
MR. WOOLEYHAN: The Prosecution could have no way of knowing; it is a matter handled by the Secretary General.
THE PRESIDENT: I think that it is very apparent that we cannot fairly ask the cross examination to proceed tomorrow morning. No will try to have it proceed the day following, and we hope that tho transcript will be in the hands of the Defense Counsel to permit them time to do that.
We will take up other testimony now, unless counsel wants to have some cross examination at this time.
DR. KOESSL: I will try to be in a position to continue the cross examination tomorrow, that is to receive the transcript tonight. At any rate, I will be ready to do so the day after tommorrow.
MR. WOOLEYHAN: May we ask that the witness be excused?
THE PRESIDENT: I suggest that the witness be excused until the day after tomorrow morning, at 9;30, hoping that the matter will proceed so that the examination, the cross examination may be taken up at that time.
MR. WOOLEYHAN: Mr. Secretary, might I inquire if the bench has Book 3-H?
THE SECRETARY: Yes.
MR. WOOLEYHAN: Turning to Document NG-594 which is the second, document in Book 3-H-
THE PRESIDENT: What exhibit number does the prosecution attach to that?
MR. WOOLEYHAN: It will be Exhibit 194 when offered, your Honor.
JUDGE BRAND: May I ask about that? Wasn't the film to be marked 194?
MR. WOOLEYHAN: The film was 192, your Honor.
JUDGE BRAND: Thank you very much.
MR. WOOLEYHAN: This document was read, described and discussed in session last week. Contrary to -
THE PRESIDENT: Let's be sure we have this straightened out as to the exhibit number. Whet is Exhibit Number 193 according to your records?
MR. WOOLEYHAN: That was the Jacobi affidavit, Document NG-1020, describing the film.
JUDGE BRAND: My notes show that Exhibit 192 was a note by Joel, NG-594.
MR. WOOLEYHAN: That was withdraw, your Honor, and was not introduced. I an about to discuss it at this time. The lineup of the documents now is -- Exhibit 192 was the film introduced Saturday. Exhibit 193 is the Jacobi affidavit, NG-1020.
THE PRESIDENT: Of course it makes very little difference, just so we all have the same record.
MR. WOOLEYHAN: That's the point.
THE PRESIDENT: As a natter of fact, the Jacobi affidavit was introduced before the film, but that doesn't make any difference, as you suggest.
MR. WOOLEYHAN: The prosecution now comes to what when offered will be Exhibit 194.
That is NG-594, the second document in Book 3-H. This document was read and discussed in court last week, but in view of the objection by defense counsel for the defendant Joel, it was withdrawn and at the Court's suggestion defense counsel and prosecution came to an agreement outside of court. We offer this document at this time without any reference to the defendant Joel, and submit that any reference which we did make on the previous day be stricken from the record.
DR. WANDSCHNEIDER (Counsel for defendant Rothenberger): Mr. President, concerning this exhibit NG-594 I had already spoken briefly the other day and just now statement was made by the prosecutor that this document would be submitted without reference to the person of the defendant Dr. Joel. I had protested against the probative value of this document with reference to the defendant Dr. Rothenberger, and I should like to maintain this protest today because from the document it can be seen that it had not been initialled by Dr. Rothenberger nor had it come to his attention in any other way, and therefore it has no probative value as far as he is concerned.
MR. WOOLEYHAN: May it please the Court, in reference to the objection just made by defense counsel, as will be seen from the photostat of the original document, it is apparent to the prosecution, at least, that this is obviously a copy. The original we do not have. The last paragraph of this letter is numbered 3, and reads as follows: "State Secretary Dr. Rothenberger with the request to note according to instructions", and then handwritten, "see the Minister's letter."
It is the prosecution's contention that the original was sent to Rothenberger and therefore he could not have initialled this copy which we submit.
THE PRESIDENT: Another point that was raised was that the initial was not the initial of Joel, and raised the question of whether expert testimony would be offered.
MR. WOOLEYHAN: On that point, Your Honor, defense counsel for Joel and the prosecution agreed by oral stipulation out of court after we had an expert in to look at it, that it was not the initial of Joel, and we submit it without any reference to that.
THE PRESIDENT: That being true, I wonder whether Dr. Wandschneider has any further objections to this exhibit?
DR. WANDSCHNEIDER: May it please the Tribunal, I of course, want to maintain my objection because it is absolutely not sure who wrote this letter and the Prosecution assumed that it may be initiated; that is an assumption which is not justified by any evidence and, since, therefore, any authentical or corroborating reference of this document to the personality of Dr. Rothenberger is absolutely missing, In my opinion, my objection therefore is justified.
MR. WOOLEYHAN: The Prosecution on that rests on its previous argument, plus the photostat of the original document on its face.
May I call the Tribunal's attention to the fact that there is a striking similarity between the objection for the Counsel for the defendant Rothenberger and similar objection had some days ago, when the Bench asked me if it was not the case that we had captured this document in the Ministry files from which the originals had been sent to the adversaries. We submit that this is a parallel example.
THE PRESIDENT: Is it the claim of the Prosecution that you have enough papers here to make it probable that this had come to the notice of Dr. Rothenberger?
MR. WOOLEYHAN: It is the prosecution's contention, Your Honor, that it appears on the face of this document that the original thereof was not only seen by the defendant Rothenberger but was addressed and sent to him.
THE PRESIDENT: This document has been read by the Prosecution?
MR. WOOLEYHAN: Yes.
THE PRESIDENT: It is now offered in evidence; is that right?
MR. WOOLEYHAN: Yes.
THE PRESIDENT: Under the rules, we will receive the document in evidence.
MR. WOOLEYHAN: As Prosecution's Exhibit 194.
We will turn now the document bock 3H, namely, NG 459, which is found on page 49 of the German book, This document begins with an indictment; originated in the Office of the Senior Public Prosecutor, Chief of the Prosecution at the Special Court of the Supreme Court of Stuttgart. Dated, Stuttgart, 24 February 1944. It is addressed to the Chairman of the Court of Appeal, Stuttgart.
" Indictment against Karl Schramm."
Skipping to the third paragraph:
" As a confirmed swindler this time as a parasite of society, and a habitual criminal of all offenses, he again committed fraud and attempted to commit fraud, and is doing so always pretended without authorization to be a member of the German Armed Forces.
" Facts" " The accused who served a sentence of imprisonment of 2 years, 8 months up to the 3rd of November 1942, on account of a repeated offense of fraud, and afterwards was a member of the German Armed Forces from 4 February 1943 to 10 May 1943, after his dismissal from the Army called on dependents of soldiers, and pretended that he had brought messages from their soldier relatives.
In this way he hoped to place the persons on whom he called under an obligation and to receive presents, especially food, from them."
Thereafter follows enumeration of these visits which the accused made, of which we will read two of three byway of illustration:
"1) On 20 May 1943, he called on a soldier's wife, Rosa Stetzl at Hermaringen, District of Heidenheim, whose husband at that time was stationed in the military training ground Heuberg. He introduced himself with his own name as a corporal, and pretended to be a comrade of her husband's at present of leave Ccurt 111 He said her husband had sent him to fetch food parcel for him.
She believed his lies and gave him a parcel with 6 lbs of smoked meat, 8 to 10 eggs, 20 cigarettes, and a letter, furthermore for his trouble, supper and 5 eggs. As he had intended, he kept the contents of the parcel for himself".
If I may interpolate for a moment, thereafter follows some ten mere instances of practically the same type of which I have just read, in which the accused called on the relatives of soldiers who were away and defrauded them of various amounts of food for his own consumption.
Skipping to page 5 of this document, which is page 52 of the German:
"main results of the investigation.
"The accused has admitted to having called on and told lies to relatives of soldiers in order to get food. Regarding his denial of particulars of his fraudulent behavior, he has been convicted by the statements of the above named witnesses, which appear credible. He consumed the food, which he obtained under false pretences himself or handed it over to his mother, who used it in the household, pretending he had obtained them by honest means."
Skipping to the next page.
"The accused is the son of the late mason Karl Schramm of Oherkochen end his wife Josefino, nee Gold, now married for the second time. After attending an elementary school, he was apprenticed to a master Mason. He alleges that he dis continued the apprenticeship on account of illness and from then on, whenever he had any job at all, he worked as a casual laborer and odd-job man.
Skipping down to the next paragraph:
"Between 1928 - 1940 his record shows 8 previous convictions. Apart from minor fines for theft, damage to property, begging and insulting a civil servant, there are 4 convictions for fraud."
Skipping now back to the first page of this indictment, we see that there appears a penciled notation near the top of the page on the right hand side. Upon consulting the original document with the same penciled notation, in fact appears and states the following: "Sentenced to death 15 March 1944".
At this point, we wish to invite the Court's attention to the fact that by his own affidavit the defendant Cuhorst was presiding judge at the Stuttgart Special Court on that date.
The Prosecution offers as Exhibit 195. Document 456.
DR. DOETZER: May it please the Tribunal, I object to this penciled note, "Sentenced to death 15 March 1944". This was not written by the defendant Cuhorst. That penciled note, therefore, as I have said, it was not written by Cuhorst nor is it signed by Cuhorst. The handwriting was a different one.
MR. WOOLEYHAN: May the Court please, I am sure that defense counsel and I will be in complete agreement once I make a rather obvious explanation. The prosecution does not intend that the writing on this indictment which states that the defendant therein was sentenced to death at such and such a date was the writing of the defendant Cuhorst. We do not say it is. We do not say who that writing was put on thereby. We merely called the Court's attention to that writing to show, by the best evidence available appearing on the document itself, what disposition was made of the case represented by the indictment just read, since the indictment was all the documentary evidence we were able to secure on the case.
THE PRESIDENT: In what manner do you connect the defendant Cuhorst with it?
MR. WOOLEYHAN: This indictment was presented to the Stuttgart Special Court during a time when the defendant Cuhorst presided thereover, and the death sentence was pronounced still within that same time.
THE PRESIDENT: That seems to answer the question.
MR. WOOLEYHAN: We again offer that document as Exhibit 195.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: Turning now to the next document in the same book, which is found on Page 56 of the German book, NG-689. This single page document bears the printed letterhead and insignia of the NSDAP.
"Deputy of the Fuehrer, Staff Leader of the NSDAP." Dated: Munich, Brown house, At present: Berlin, 8 January 1940.
"Circular.
"The Special Court in Koenigsberg has sentenced the married woman Martha Sattler of Wirtberg, Kreis Insterburg to 10 years' penitentiary and to the loss of civil rights for 10 years, because she had sexual relations with a Polish prisoner of war. She was sentenced on the basis of Article 4 of the Decree providing Supplementary Penal Law for the Protection of the Defensive Strength of the German People of 25 November 1939."-