There was a nullity plea made by the Chief Reich Prosecutor, with the Reich Supreme Court, and the judgment was revoked. This case was retired by another Special Court.
Q I am now going over to the next case.
THE PRESIDENT: Do you know what the verdict was on the second trial by the other Court?
THE WITNESS: I merely heard, Your Honor, that the sentences -- in particular, the sentences for the younger clergymen -- were supposed to have been much heavier, but I do not possess any exact knowledge.
BY DR. BRIEGER:
Q witness, can you, without difficulty and immediately, find in that judgment the one passage which I have marked, and where it says something like this: The superiors of the accused clergymen had severely disapproved of the behavior of those clergymen?
I attach importance to that passage in the judgment because I intend to revert to it later on.
A The judgment is fairly extensive, and I cannot find that passage just now. At what page is it?
Q I think I can refer to it when I come to present my documents.
I now come to case 50; that is the Grassmann case. Witness, I am handing you Cuhorst Exhibit No. 18, NG No. 17, judgment against Charlotte and Alfred Grassmann, of the 11th of May 1944. Please, at the hand of the judgment, give us a detailed account of this case and toll us why the death sentence was passed.
A I have here the judgment passed by the Special Court at Stuttgart, dated 11 May 1944. I was the presiding judge at that trial. The defendant Charlotte Grassmann, nee Pilz, born on the 12th of March 1907, at Berlin, was sentenced to death as a public enemy, a dangerous habitual criminal, for fraud, falsifying documents, theft, and other offenses. The defendant was the wife of an engineer. She had previously served a rather long prison term for fraud; she was a dangerous swindler. The judgment shows that the life of two men and the honor of the family of a lawyer were on her conscience. She was the most cunning criminal I ever met.
The trial lasted three days. A number of facts were never considered at all when it came to passing judgment, because otherwise the trial would have become too extensive. Everything else can be seen from the 33 pages of the opinion. The defendant, as a habitual criminal and as a public enemy, was sentenced to death. According to the jurisdiction of the time, and in view of the nature and the extent of her crimes, a different sentence was not possible. When you read the judgment it seems to you that you arc reading the story of a four-flusher.
Q Witness, please tell us something about the fact that in your view Charlotte who was sentenced to death had driven several men to their deaths, that is to say, that those men, out of desperation, committed suicide.
A Yes. In 1936 a half-Jew from Munich, whose name was Bruno Vierling, had a liaison with the defendant. The defendant completely ruined Vierling, and therefore he stole a large amount of money from his father. When Vierling had been financially ruined, the Grassmann woman stopped her affair with him, and Vierling committed suicide by shooting himself on the 18th of April 1938 in Munich. A similar thing happened in the case of a Court Referendar, Kammerzell. All that can be seen from the judgment.
Q Witness, before I pass on to the next case, provided the Tribunal agrees, I should like to give you an opportunity to add something to the case 25, the Stiegler case. Please comment on that case again.
A In that case I didn't give an answer to a question which was put to me. Willi Stiegler, who was sentenced to death on the 30th of March 1943 for a crime against the war economy, committed large-scale blackmarketing offenses with soap powder. The witness Diessem described Stiegler as just a small man. I remember that he wrote a letter to his wife in which something like this was said: He hoped that that year he would manage to earn half a million, and the following year a whole million.
That alone indicated the extent of the punishable offenses which Stiegler committed and that extent was much greater than one would have thought from the testimony by the witness Diessem.
Q Witness, I am now passing on the case 51. In various documents of the prosecution the phrase occurs that you had been in favor of as many death senences as possible. In that connection, the case of Klinger and Lieble--no, Klinger and Bueche, is interesting. The witness Eckert, in our document book, volume II, has also testified on that case.
Would you please tell us something about that case?
A The Klinger-Bueche case was the last big trial at which I was the presiding judge. It was held in November 1944. A fairly big offense had been committed against the war economy, and it had happened in the textile industry. The prosecution, according to the indictment, intended to ask for the death sentence. After proceedings, which was lasted for two days, the Court informed the prosecution unofficially that a request for such a severe penalty was not justified. All the same, the prosecutor asked for the death sentence for both defendants. The defendant Klinger was sentenced to a prison term, and the defendant Bueche was sentenced to a penitentiary term.
Q I am now passing on to case 52.
THE PRESIDENT: Might I ask you to give me the spelling on one of those defendants, the one with the long name? We can't read the mimeographed copy.
DR. BRIEGER: May I spell it in English?
THE PRESIDENT: Yes, please.
DR. BRIDGER: B-U-E-C-H-E. Next name, Klinger, K-L-I-N-G-E-r.
THE PRESIDENT: All right, I have got it, thank you.
DR. BRIEGER: Your Honor, you are welcome.
BY DR. BRIEGER:
Q May I now pass on to the next case? In the group of those cases where the death sentence had been asked for but where, in your judgment, you did not arrive at the death sentence-- I believe that the Frey case also belongs to that group. I will therefore show you Cuhorst Exhibit 19, NG-41, an affidavit by Christine Frey of the 10th of June 1947.
Witness, please tell us something about that case at hand of this affidavit.
A The affidavit by the former Chritine Frey shows that the prosecution, on the 9th of May, 1940, for arson and other offenses, had asked for the death sentence in her case. The Court made an inspection on the spot and refrained from passing the death sentence. Frau Frey is at liberty today.
The trial was held in the town hall of a small village near Ulm on the Danube.
Q May I pass on to the next case, case 53? A witness has discussed the Gruber case. Do you remember that case? Was your verdict revoked, witness?
AA student by the name of Gruber had written a very improper letter to the finance Office. He was indicted for an offense against the Malicious Acts Law. The prosecution asked for a prison term of ten months. The Court passed a prison sentence of six weeks. I myself was the presiding judge at that trial. The Reich Supreme Court quashed the sentence and returned the matter to another Special Court. I do not know the result of the second trial.
Q Now I come to case 54. In that case your sentence was revoked, and therefore I attach importance to your commenting on that case. I am speaking of the Guter case, and this is a case to which many witnesses have already referred. Those witnesses said that that case was a sensational one because of your personal attitude. Please tell us something about the crux of that matter.
A The defendant Outer was a juvenile thief. He had stolen three small field post packets. The prosecution asked for a sentence of three years in the penitentiary. The Special Court passed a prison term of 18 months. I was the presiding judge. The Reich Supreme Court Cancelled the judgment and returned the case to the Special Court at Stuttgart. At the second trial, again, a lenghty controversy arose as to whether the defendant was to be sentenced was to be sentenced to a term in the penitentiary or in a prison.
At that time the defendant had been in detention pending trial for more than a year.
The Special Court passed a minimum penitentiary sentence of one year and one month. A fortnight after the second trial the defendant was discharged.
After that case had occurred, the Reich Supreme Court began referring those cases, where the judgment passed by the Special Court at Stuttgart had been revoked, to other Special Courts.
Q Witness, as you have just said, that was a case where field post packages had been stolen. I think it is important to ask you, as far as you are able to do that off hand, to make some comparisons between this case and the case with which you dealt yesterday, another case where field post packages were stolen. I am referring to case 23, the case of Michael Schmidt. Thy was the death sentence passed in the case of Michael Schmidt, whereas here only prison term was pronounced?
A The defendant Cuter was an immature person. He had stolen field post packages only three times, and he had stolen them from his own firm. Those packages did not contain letters, and it was comparatively easy to make good the damage done. Even the prosecution never considered asking for the death sentence.
In the case of the defendant Schmidt we dealt with an adult, who had had several previous convictions, who had stolen at least sixty post packages and the letters belonging to them.
Q From that I am inclined to draw the conclusion, Witness, that at least in these two cases you considered not merely the offense as such, but also the character of the offender. Was that the way you dealt with cases as a rule, end was that the way your associate judges also dealt with cases?
A The evaluation of the character of the offender is one of the most important tasks of every judge.
Q I am now passing on to case 55, the Handschuh case. On 2 November 1942 you tried that case. The case is also entered on the list of death sentences, and the date is 29 May 1943. Is that the same case? In other words, are those two cases identical? Why was that case tried twice? Please comment on that matter.
A The defendant, Alois Handschuh, was tried on 2 November 1942 in Allen and I was the presiding judge. Handschuh had many previous convictions for repeated offenses as a thief. He had spent half his life in the penitentiary. He committed several burglaries while exploiting the blackout, and several of those burglaries were committed in vicarages in the country. The Prosecution asked for the death sentence, but only a prison sentence was passed. The Reich Supreme Court, after a nullity plea had been made, quashed the sentence and the case was tried for a second time on Saturday, 29 May 1943, in Stuttgart. I was not the presiding judge at that trial, but I asked my deputy to act as presiding judge, because on account of an inner disinclination I did not want to be in charge of two retrials of my own cases. The Supreme Court, however, in its decision had tied down the Special Court at Stuttgart to such an extent that at the second trial Handschuh had to be sentenced to death. That second trial, at which I was not the presiding judge, is to be found on the list of the witness Eberhard Schwarz, and the number is 76 on that list.
Q Witness, I am now passing on to case 56. In Document Book No. 2 I shall introduce an affidavit by Dr. Hartmann.
I have the document here. I am going to hand it to you. The exhibit number is 20 and the NG number is 45. This is an affidavit by Dr. Karl Hartmann of 13 April 1947. Witness, as the Prosecution in the indictment and in oral statements made here has charged you more or less definitely with having cooperated closely with Party authorities, and consequently having arrived at fake trials and at fake judgments, I attach importance to your discussing this case.
A. The physician Dr. Karl Hartmann, a general practitioner from Friedrichshafen on Lake Constance, was having a personal quarrel with the Kreisleiter. On account of misconduct, on the part of his wife, with the Kreisleiter, he had been divorced. The Kreisleiter persecuted Dr. Hartmann, and the doctor made very careless remarks. One day an indictment was filed against Dr. Hartmann for an offense against the malicious Acts Law. The Special Court at its own initiative got hold of the files dealing with the divorce proceedings and clarified the background of the Hartmann proceedings by doing so. Hartmann was acquitted. Approximately one year later in connection with some other matters another indictment was filed against Hartmann. At the second trial I asked Dr. Bohn, District Court Director, to preside. He had attended the first trial and he know the facts. At the second trial took Dr. Hartmann was acquitted because his innocence was proved.
Q. Case 57. In a document which I shall introduce later, a case Hermann is discussed. As this case has peculiarities which affect you personally, I ask you to comment on the case.
A. The Hermann case I recall very well on account of some special circumstances connected with it. Hermann was a young man of not yet quite 19 years of age. He had committed several serious crimes of robbery and assault at night. The Prosecution intended we ask for the death sentence. The trial at which I was the presiding judge was held at Schwaebischgmuend. At the trial the Court received the impression as if the defendant had some mental defects.
The Court decided to ask a psychiatrist to examine him. As in Schwaebischgmuend such a physician was not available, I myself rang up the nearest asylum and, together with the defense counsel, the public prosecutor, and the defendant, during the noon recess, in my official car, I went to the asylum, which was 20 kilometers away. It was situated at Coeppingen. There the defendant was examined by the chief physician of the asylum, who declared that his responsibility was reduced, and when the trial was continued after the noon recess at Schwaebischgmuend the Prosecution asked for only a prison sentence, and he was sentenced to a prison term. Without having the defendant Hermann unguarded, without any special protection, I myself took the defendant Hermann from Gmuend to Goeppingen and back.
Q. Case 58, Do you remember a murder case, the Mueller case? It is supposed to have been tried at the town hall of Michelfeld, in the district of Schwaebisch Hall, when you were the presiding judge. Please, witness, tell us something about the peculiarities of that case.
A. The defendant Mueller had stabbed or shot to death a noncommissioned officer who was supervising a detachment of prisoners of war. The case was a borderline case, on the borderline of manslaughter and murder. As the local conditions were of importance, the trial with myself as presiding judge was held in the place where the offense had been committed, and an inspection on the spot showed that one could not be absolutely certain that murder had been committed. The prosecution asked for the death sentence, which was mandatory for murder. The Court, however, passed a prison sentence for manslaughter. Without having gone to the spot, that result in favor of the defendant would hardly have been arrived at.
Q. Case 59, Reichart, bears a certain similarity to Case 56; any way, it is supposed to be somewhat similar.
How was that?
A. The defendant Reighert, an engineer from the neighborhood of Goeppingen in Wurttemberg, had been sentenced once before to a short prison term for an offense against the Malicious Acts Law. Soon after, he was again indicted. A trial was held at Goeppingen. Shortly before the trial opened a representative from the Kreisleitung of the Party came to the judges' chamber, apparently to make us take an unfavorable view of the defendant. I immediately removed the man from the judges' chamber and told him that case would be discussed in open court and not in the judges' chamber. The defendant Reichert for a second time was sentenced to a short prison term. I do not remember for what time he was sent to prison.
Q. Case 60; the Rupp case for rape. I believe that for some special reason you still remember that case. Please just give us a brief account of that case as far as you are still able to do so.
A. A 20-year old man by the name of Rupp in September 1939 for two attempts to commit rape while exploiting the blackout was sentenced to a penitentiary term of three years. As at that time the police was interfering with the administration of penal justice, I sent the defendant Rupp to the prison, which was in our town, so that the police would be unable to interfere. On 21 October 1939 with Reichminister of Justice Dr. Guertner presiding, a conference, of all the presiding, judges of the Special Courts in the German Reich was held in Berlin. At that conference minister Guertner gave an address and stated that from his golden book he intended to read a few judgments. The first judgment which the Minister of Justice read out, without however giving the names of the Court or the judges, was the judgment passed on Rupp, of which he said that the sentence had been completely inadequate, and he mentioned it to all presidents of the Special Courts as a bad example. The people from Stuttgart who attended the conference were very much depressed by this criticism meted out to them by the Minister himself.
Q. Witness, I am inclined to assume -- I am now coming to Case 61 -that the Schaefer case for a special reason is still fresh in your memory. In November, 1942, at Heilbronn on the Neckar that case was tried by you. This case seems important to me because it contributes to explain your whole attitude as judge. Please comment on the case.
A. A young man by the name of Schaeffer, who was barely over 18, had escaped from the youth training school at Moorungen. While he was escaping he came to southern Germany. There he committed a large number of serious burglaries at night. The Prosecution intended to ask for the death sentence, and the Court had to appoint defense counsel for the defendant. On the day of the trial I talked to the head of the juvenile prison at Heilbronn, Oberregierungsrat Dr. Schmidthaeuser. He was an expert on the subject of juveniles criminal law. Schmidthaeuser told me that he had got to know Schaefer at his prison. He was a young man who could still be saved. I came to an agreement with him to the effect that Prof.
Dr. Gregor, the chief physician at the juvenile prison, was to attend the trial as an expert. The physician at the trial testified to the effect that the defendant Schaeffer had simplylacked strict upbringing and such training he could receive at the juvenile prison at Heilbronn. From his decades of experience he believed he could say that the defendant could be put on the right path. Although the Court tried to influence the prosecutor in regard to the sentence for which he would ask, the Prosecutor all the same asked for the death sentence. The Court sentenced Schaeffer to only five wears imprisonment and handed him over to the juvenile prison. 362 days later the judgment in the Schaeffer case was revoked, by way of the nullity plea. I still remember that the decision by the Reich Supreme Court said that the Special Court to which the Schaeffer case had been assigned was completely tied by the decision. All the factors that could be found to speak in favor of the defendant Schaeffer had already been established in the first judgment. Schaeffer, in accordance with the decision by the Reich Supreme Court, was sentenced to death by another Special Court.
Q. I am now passing on to Case 62. Before I begin to discuss that case I shall put to you Cuhorst Exhibit 21, NG 59, the affidavit by Frau Magdalene Scholl, of 3 May, 1947. May I draw your attention to this points I have just been in touch with Mr. LaFollette and unfortunately I have heard that the volume in which the affidavit is contained, has not yet been produced and therefore I would ask you not to read from the affidavit.
A. These are two Arials -
MR. LAFOLLETTE: Excuse me, just a minute, your Honor, I think I will permit this affidavit being used. We are trying to move along. If there is anything wrong about it, the Court can disregard it. I am not going to be technical on those matters.
DR. BRIEGER: Thank you very much, Mr. LaFollette.
THE WITNESS: This deals with two -
BY DR. BRIEGER:
Q. Just a moment. Not quite so fast, witness. For the information of the Tribunal and for your information. Witness, I should like to make a few introductory remarks. The Prosecutor, Miss Arbuthnot, a few days ago while cross examining Dr. Barnickel, referred to a Scholl case, and my first Question to you is, is that Scholl family identical? That is to say, is that the same Scholl family whom we discussed here the other day?
A. That is the same family.
Q. That is sufficient, thank you. Witness, will you please discuss this case in detail, because of all cases where you tried Germans this case, in my view, is of the most paramount importance. This is definitely a political case, the case of the brothers and sisters Scholl. My first question to you is whether the Scholl brothers and sisters are identical with those brothers and sisters who later on were sentenced to death in Munich when Freisler was the presiding judge?
A. The defendant Hans Scholl is the same, yes.
Q. For the information of the Tribunal and for your own information we would now like to point out that the Scholls are known to everybody in Germany nowadays who reads the papers, because, in my view, they were the champions of democracy, and they are, in my view, quite rightly considered as martyrs of the Hitler regime, and I believe their memory will live among the youth of our universities for generations. Witness, please tell us something about this case.
A. I had twice tried cases where members of the Scholl family were involved. In April 1938 I tried the brothers Hans end Werner Scholl and a large number of other defendants. At that time they had continued the activity of the prohibited Buendische Jugend at Stuttgart. The charges brought up at the trial were connected with a large number of the charges. The Prosecutor from some other town acted as prosecutor at that trial.
As I heard indirectly the intention was to ask for fairly heavy sentences on these young people. The defendants Scholl, themselves, at that time were still juveniles within the meaning of the law. At the trial, the matter which had been somewhat exaggerated by the prosecution was reduced to its proper proportions and the defendants were sentenced to such insignificant penalties that the proceedings against them, as a result of an amnesty, were stopped.
After the trial, which had lasted several days, the mother of the defendants, Frau Magdalene Scholl, wrote to me at my private address to thank me for my kind treatment of her sons. I was rather embarrassed by that letter because I never expected to get letters of gratitude, not in my profession.
In the meantime, the defendant Hans Scholl, and one of his sisters, had been sentenced to death by the People's Court at Munich. Sometime later, the husband, Mr. Scholl, his wife, Magdalene Scholl, and the surviving daughter, came before the Special Court at Stuttgart, when I was presiding judge. They had committed extensive offenses against the Malicious Acts Law. Mrs. Magdalene Scholl and her daughter were acquitted, and the father of the family, Herr Scholl, who now is mayor of Ulm, was sentenced to a short term of imprisonment-- I believe it was a sentence of eight or ten months. At the trial, it was found that the extent of the punishable acts of the defendant Scholl, the father of the family, was probably bigger than the prosecution assumed. The court for its part, however, saw no cause to make the case any graves than it was; for otherwise, under certain circumstances, the proceedings would have had to be discontinued so as to submit the case to the Chief Reich Prosecutor with the People's Court for his examination.
Q. Wintess, in this correction, one more question seems of particular significance to me. Can you remember for certain whether during the second proceedings against the Scholl family you tried the case after close relatives of these people had already been sentenced to death in Munich with Freisler as the presiding judge; because if that were so, that would seem characteristic to me of your courage.
A. I remember it for certain because in correction with the sentence for the defendant Scholl, the father of the family, I said something like this: in passing sentence on this man, one must bear in mind that the Scholl family has already suffered a great deal of bad luck. By that I referred to the Munich sentence, for I, personally, was sorry for the defendant Hans Scholl, whom I had known in 1938, and the offenses he had committed at that time were acts such as are committed by many young people.
THE PRESIDENT: Mr. Witness, I suppose we may assume from what counsel said that the Scholl's were German nationals, were they not?
THE WITNESS: Yes, they were German nationals.
BY DR. BRIEGER:
Q. In view of the fact that Frau Scholl's affidavit is very short and that Mr. La Follette has been good enough to let us use it today, assuming that the Tribunal agrees, may I ask you to read this affidavit into the record because it is of particular importance.
THE PRESIDENT: Are you going to offer it into evidence?
DR. BRIEGER: Yes.
THE PRESIDENT: Then you don't need to read it. As there is no objection, it will be received. Counsel said he had no objection. Would you tell us what was the nature of the political party or organization that these people were attempting to form? You gave the name it but I didn't quite understand.
THE WITNESS: That was the so-called Buendische Jugend. That was a youth movement which vacillated between the Communist Youth and the Hitler Youth. Some of the former members of that organization before 1933, went over to the Communist camp; another part joined the Hitler Youth.
The Scholl group represented the remains of that group which kept flashing the old flag of the Buendische Jugend. After the Hitler Youth had been formed, naturally all other youth movements were forbidden, and to continue as a member of any such organization was punishable. That is why the Scholls came before a court.
THE PRESIDENT: Then was the law which we have seen in Document Book II, which prohibited the political parties except the NSDAP, involved in this prosecution?
THE WITNESS: Your Honor, I believe that that was so, but I cannot tell you for certain.
THE PRESIDENT: Can you think of any other law that could have applied except that one?
THE WITNESS: Well, there were a number of topical laws at that time, and maybe the unlawful whole organizing of collections might have been connected with this case. Anyhow, the matter is now more than ten years old, and I am afraid I cannot give you a precise answer.
BY DR. BRIEGER:
Q. Your Honor, I shall try to explain that case further by my other witnesses. One more question to you, witness, in this connection. If I understood you correctly, the work of the Scholl family, in connection with Buendische Jugend, was connected with the prevailing traditions of the days before National Socialism?
A. Well, the heyday of the Buendische Jugend was in the years approximately from 1925 to 1930. At that time, the movement consisted of several groups, among which there was dissension.
Q. Am I right when I say that the Buendische Jugend in its tendencies as a whole were not Communistic but Democratic?
A. The principles of the Buendische Jugend cannot be brought under one heading, politically speaking. In my view, the Buendische Jugend were individualists, nationalists; but in its heyday it had no inclinations whatsoever to join with any political system. Only approximately in 1930, the various groups of the Buendische Jugend merged with political camps. The most important leader of the Buendische Jugend, of the so-called German Jungvolk of the first of November-yes, the first of November--was a man called Koebel, who was very active as a writer. He joined the Communist camp and later emigrated to England.
THE PRESIDENT: I think we would be interested to know under what statute or decree the type of activity which the witness has described was made criminal. You understand the point that we are interested in?
DR. BRIEGER: Your Honor, I am inclined to assume that Your Honor's assumption is correct when you say that you think that these people came into conflict with the law which forbade the formation of new political organizations and parties. I shall examine the matter, Your Honor.
BY DR. BRIEGER:
Q. Summarizing, I would like to ask you one more question. Witness from what you have said so far, I am inclined to assume that without regard of the party to which the Scholl's belonged, if I understood you correctly, the Scholls were young people who worked for the ideals of democracy-- at any rate, for the ideals of liberty--and thereby get into conflict with Hitler's principles of dictatorship. Am I right in saying that? Can one bring it under that general heading?
A. Yes, one can, but one needn't. The Buendische Jugend was very complicated, and to describe the nature of the Buendische Jugend in a few words is impossible, for the members of the Buendische Jugend themselves could not do so, and the political slogans of today were quite unknown to them at the time.
THE PRESIDENT: It is this very factor of uncertainty as to what the organization stood for or how many different principles it stood for that makes up inquire how membership in it could have been criminal. Go ahead with your evidence on it. We will be glad to hear it.
DR. BRIEGER: Your Honor, I didn't quite understand that question.
THE PRESIDENT: We will take our recess now.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. BRIEGER: May it please the Tribunal, may I continue the direct examination of my client Cuhorst. I have almost reached the end. First, I would like to say the following: During the intermission it was pointed out to me that the brothers Scholl probably were indicted on the basis of the emergency decree for the maintenance of the domestic peace of the 19th of December 1932, in the Reich Law Gazette, (Reichsgesetzblatt) Volume I, in contrast to Volume II where always the international treaties are quoted. On page 548 of Volume I, probably under Article 2 which says: Any one who publicly makes malicious statements, or statements showing an antagonism against leading persons of the state or the National Socialist party, about their directives or institutions established by them, which are designed to undermine the confidence of the people in the political leadership, will be punished by imprisonment. But I notice here that this decree is supposed to be of 1932. I don't assume that is so, because National Socialism came into power only on the 30th of January 1933. Therefore, it may be a misprint, and I shall check it later. Now, I have almost reached the conclusion of my direct examination; the cases have been discussed in detail. May be I can put two or three concluding questions to the witness.
Q.- Witness, yesterday we discussed in detail the judgment against Wirbel, particularly the sentence from the point of view of double jeopardy, nebis in idem. Do you have any desire to make any additional statements in that connection?
A.- About that question of that principle nebis in idem, double jeopardy, a lot has been said here. In the case of Wirbel, this is the way it looked: Wirbel had committed a number of thefts, and the Special Court in the first proceedings sentenced Wirbel for so-called repeated thefts to a prison term. Later, however, it was found that the defendant Wirbel had not committed twelve thefts, but forty-one of them, and of a considerably more severe nature.
Now, there was one legal point of view a school of thought which held that the continuous and repeated offenses on account of which Wirbel had been sentenced also comprised the many thefts which became known later -- the more numerous and larger thefts. Jurisdiction developed at that time according to the influence of decisions from high courts, and according to various text books such as the one by Henkel, in the direction that in the case of facts such as I have described, it was thought that there existed a different offense and that these offenses which had become known later were not covered by the original combination of repeated thefts. If the defendant Wirbel by the first sentence had not been sentenced for repeated interconnected thefts, but for twelve individual thefts which he had committed, then the punishment for the remaining twenty-nine serious thefts would never have presented any legal difficulties. The question concerning the principle of double jeopardy in the case of Wirbel only arose because the Special Court in the first sentence had assumed continuous and repeated acts instead of several individual acts. The rest can be seen from the legal opinion which is in the judgment itself.
Q.- In this connection, and due to the fact that I had no longer any possibility today to discuss cases against Poles, I should like to put an important question to you, witness, concerning the question which the Tribunal put to you yesterday, and where in my opinion your answer was not clear enough. I ask you, therefore, do you remember any cases while you were presiding judge where Poles were sentenced, or even sentenced to death, solely by applying the penal decree against Poles; or wasn't it so that always, without exception, the facts of the case, had to be examined by applying the standards of the German penal code which was valid for every one, regardless of nationality.
Q.- Whatever material I could look at, and whatever material was submitted by the Prosecution, I have examined, and I could not find one single case where a polish defendant was sentenced to death in a case, where a German defendant would have incurred a different sentence.