Q I shall now discuss the case of Gruber, G-R-U-B-E-R. The prosecution has submitted Exhibit 230, which is the affidavit by Kroher. This is, again, the case of a habitual criminal. Complaints are made that Gruber had not been clearly convicted of the thefts. What can you tell us about that?
A It is true that in the main case the defendant denied that he had committed these acts. However, the evidence made it quite clear that he was guilty. Any objections made by the defendant or his counsel investigated into in the minutest detail; all of them were clumsy lies on the part of the defendant. As to what the witness Kroher says in his affidavit, namely, that other persons could possibly have been the men who committed the acts, it was made quite clear in the main trial that those two persons could not possibly have committed those acts.
Q Attorney Kroher states in his affidavit -which is Exhibit 230 -- that the defendant Gruber should have been acquitted. Did Kroher made a motion to have the defendant acquitted during the case?
A In reading Kroher's affidavit one would assume that, yes; however, in point of fact, defense counsel Kroher in the case at the time did not move for Gruber to be acquitted because, on the basis of the evidence, he himself became convinced that Gruber was the perpetrator. Accordingly, he merely moved to have him sentenced leniently.
Q What was his motion -- Kroher's, I mean?
A The public prosecutor had asked for the death sentence, and Kroher had asked for hard labor and security custody.
Q On the basis of what regulation was Gruber sentenced?
A Paragraph 1 of the amendment of 4 September 1941.
Q Was the case included in the Ministerial list for clemency pleas?
A Yes, as a clear case.
THE PRESIDENT: May I ask you a question about that?
I wanted to ask a question, Dr. Schubert.
DR. SCHUBERT: Yes.
THE PRESIDENT: I think you mention a new concept to us there. You said that the defendant's counsel asked for a judgment of hard labor and security custody. Did the Special Court make orders for security custody in any way other than the ordinary sentence of imprisonment?
THE WITNESS: Under Paragraph 42-E of the Reich Penal Code, a dangerous habitual criminal could be ordered to be detained under security custody if public security made this imperative.
THE PRESIDENT: Was that an indefinite term?
THE WITNESS: The duration of security detention was not laid down, but until the outbreak of war it was provided for that after a certain term had been served, official investigations had to be made as to whether the detention should continue or not.
THE PRESIDENT: Do you remember whether that section to which you referred applied only in the case of dangerous habitual criminals?
THE WITNESS: Security custody was applied only to dangerous habitual criminals.
THE PRESIDENT: Thank you.
BY DR. SCHUBERT:
Q Witness, perhaps you could tell the Court whether security custody had anything to do with protective custody.
A No, no, nothing at all.
Q I shall now discuss the Hahn case, H-A-H-N. What was Hahn sentenced for?
A He was also a dangerous habitual criminal with many previous convictions who, once again, had swindled women and done them considerable harm. He had been convicted eleven times for such cases of fraud. The last sentence was two and a half years of hard labor. Had had served it by September 1941, and in November 1941 he started a new series of thefts and frauds of that type.
Q On the basis of what law was Hahn sentenced?
AAs an incorrigible habitual criminal, under Paragraph 1 of the amendment.
Q I shall now discuss the case of Mahr, M-A-H-R. In this case the Prosecution has submitted Exhibit 229, the affidavit by Gross. Was Mahr a dangerous professional criminal?
A He had been sentenced twelve times for offenses against property, his last sentence being two years at hard labor. Having served that last term, he was under police control.
However this last sentence and police supervision could not prevent him from operating as a burglar soon afterwards. Mahr was an incorrigible, completely inferior and anti-social criminal, who was sentenced under Paragraph 1 of the amendment.
Q Let us now discuss the case of Pritschet, P-R-I-T-S-C-H-E-T. In this case the prosecution have submitted Exhibit 234.
Was Pritschet a dangerous habitual criminal?
A Pritschet was also a dangerous habitual criminal who, from early childhood, had conflicts with criminal law. His last sentence was hard labor and workhouse. He was released from the latter on 16 February 1943, and barely three weeks later he started his thefts again, which, a few years earlier, was the reason why he had been in prison and the workhouse.
Q The case of Pritschet has been described by the former Prosecutor Hoffmann, and he has criticized you. What did Hoffmann do in this case?
A On the basis of the files I find that Hoffmann at that time was the expert of the prosecution. I also see that Hoffmann the critic was of a very different opinion at that time because, during the trial, there was not a moment of doubt for him that Pritschet was a dangerous and incorrigible habitual criminal to whom Paragraph 1 of the amendment was applicable. Accordingly, he indicted Pritschet and he made the relevant reports to his superior offices and also made all relevant arrangements.
Q The next is the case of Michael Schmidt, S-C-H-M-I-D-T. The prosecution has submitted excerpts from the files, Exhibit 468, and has also submitted affidavits, Exhibit 229, 235, and 180. This is the case of a dangerous habitual criminal whose latest theft concerned an item of 229 flycatchers. Will you please tell us why ho was sentenced to death?
A The criticism of the witnesses to the sentence, which you cited just now, overlooks the actual problem of the case entirely. It is a matter of course that Michael Schmidt was not sentenced to death because of his last theft. The case of Schmidt, as perhaps no other case, was that of a typical dangerous habitual criminal. He was a criminal since the age of 16. His record consisted of fifteen entries, most of them sentences for theft. His criminal activities reached such an extent that he was to be considered a very dangerous criminal (Schwerverbrecher). Reform institutions, the workhouse, and even prison sentences of long duration remained without effect -- because it was shown that soon after his last sentence he had committed another act -- therefore all hope vanished that Schmidt would at any time at all give up his criminal proclivities. Therefore, it was justified to say that he represented a constant danger to public life.
Q On the basis of what law was he sentenced?
A In the case of Schmidt the provisions applied where a dangerous professional criminal could be sentenced under Paragraph 1 of the amendment of 4 September 1941. This could not be avoided, even though the last objects he had stolen were relatively inexpensive. I will not go into the fact that at the time of his committing the act the value of certain objects of daily use had become quite different because of the military situation. However, I must point out that under a ruling of the Reich Supreme Court, which had been laid down for some time, it was stated that for a decision, whether or not Paragraph 1 of the amendment was to be applied, one should not only act from the point of view of the latest perpetration. The Reich Supreme Court, in many decisions, even in cases where the last act was of relatively small importance, stated that the picture of the whole personality should be the really decisive one, that it was not important whether the goods stolen in one certain case were valuable or not, and that even a negligible act could be symptomatic of the incorrigibility of the perpetrator.
Q. What was the valuation given by the prosecution of the case?
A. The prosecution, knowing fully what the Reich Supreme Court had decided, never represented any other view in the case of Schmidt, and they thought the death sentence was justified.
Q. Did the associate vote against you when you considered your verdict?
A. When we considered our verdict in the case of Schmidt there was no disagreement among the judges.
Q. Was the case included in the Ministerial lists concerning clemency pleas?
A. Yes, as a so-called clear case.
DR. SCHUBERT: This is Exhibit 252, on page 70.
Q. I shall now come to the last case of this exhausting list of habitual criminals. This is the case of Strobel. Concerning that case, the prosecution have submitted a number of affidavits, Exhibits 236, 227, 149, and 479. This was the case of a man committing an act under the Malicious Acts Law, and he was therefore sentenced as a dangerous criminal. Will you tell us, first, what Strobel's offense had been?
A. Strobel had said publicly, roughly, that Hitler's head would soon roll and that if the Russians would arrive he would take the Russians to two people he particularly hated and they would then be hanged by their legs by the Russians, and the Russians would knife their bellies.
Q. What sort of offense was that?
A. This was an offense under Paragraph 2 of the Malicious Acts Law.
Q. The witness Mueller--in Exhibit 149, and Eichinger I think in Exhibit 227--pointed out that the Reich Ministry of Justice, in this case, asked for the case to be tried under Paragraph 2 of the Malicious Acts Law.
Was the Court bound by this order in its legal evaluation?
A. No. This order was purely meant as a basis for trial, without which the prosecution could not even serve the indictment and the Court could not decide or rule. In no case was this rule an order to the Court. The Court remained entirely free in its actual and legal evaluation of the facts.
Q. It was testified to by the witness Mueller--on the record at page 3758--witness, that in this case two trials were held. What was the result of the first one?
A. The first trial, held on 30 November 1943, showed that Strobel was guilty of the offense for which he had been indicted, and under Paragraph 2 of the Malicious Acts Law the prosecution had asked for the supreme penalty, which was five years of imprisonment. Strobel was not defended in this trial, and as there was no necessity for any defense in this case he would have had to appoint a defense counsel, which he did not do. In this trial the Court did not arrive at a sentence, because in view of Strobel's character, particularly from the point of view of his previous record, the question remained open as to whether he should be regarded as a dangerous habitual criminal.
Q. When Lipps was questioned here--and this is on page 3748 of the record--the prosecution made the charge that in this case you had insisted upon the death penalty being inflicted, although you know that the maximum penalty under the Malicious Acts Law was five years in prison. What can you tell us about that?
A. It is not true. After the first main trial the Court arrived at the opinion that it should still be investigated as to whether Strobel was a dangerous habitual criminal.
If this question should be answered in the affirmative, then Paragraph 2 of the Malicious Acts Law no longer applies, but first, the scope of Paragraph 20-A of the Reich Penal Code, or punishment possible under the amendment of 4 September 1941, if the defendant is not only a dangerous habitual criminal but also an incorrigible habitual criminal.
Q. Now, the question has been debated here on several occasions as to whether the prosecution, in the case of Strobel, based the indictment on the legal aspects of Paragraph 20-A of the Penal Code and Paragraph 1 or the amendment, and extended thereto, and if and when they did so. What can you tell us about that?
A. On the basis of the statements which you have quoted, one might arrive at the mistaken conclusion that the sentence on Strobel as a dangerous habitual criminal could only be passed if the indictment were extended. That view, however, would be mistaken. The question of an intensified sentence under Paragraph 20-A of the Penal Code or Paragraph 1 of the amendment was to be examined by the Court quite officially, quite independent of the opinions held and motions passed by the prosecution, even if and when the indictment itself did not refer to this at all.
THE PRESIDENT: May I ask you a question? In this case, is it your opinion that the indictment did not set forth the facts which, if prove, would have constituted a violation of the Habitual Criminal Act?
THE WITNESS: The indictment did not contain anything about that at first.
THE PRESIDENT: Thank you.
BY DR. SCHUBERT:
Q. Were you here concerned with an extension of the facts of the case, or was there merely a shifting of the legal point of view?
A. If the indictment does not mention anything about that, but if the Court arrives at the opinion that the perpetrator is a dangerous professional criminal and therefore falls under these intensified regulations which I mentioned before, this does not amount to an alteration of the indictment in the sense of an extension of the facts, but rather, without changing the actual facts of the case on which the indictment was based, special circumstances become clear which make the punishability, as it were, more acute. In other words, the indictment was not being changed, but there was only a change in the legal point of view in the sense that on the basis of different or more severe regulations a sentence can be arrived at other than what was provided for by the indictment.
THE PRESIDENT: I think we had better not proceed any further this evening. Could you give us an estimate as to how much longer your direct examination will take? I don't mean to bind you, but could you give us an estimate?
DR. SCHUBERT: I shall finish in the course of tomorrow, if Your Honors please.
THE PRESIDENT: We will recess, then, until tomorrow morning at 9:30.
(At 1630 hours, 11 September 1947, a recess was taken until 0930 hours, 12 September 1947.)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 12 September 1947, 0930 1630, the Honorable James T. Brand, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Rothaug who is absent due to illness.
THE PRESIDENT: Does defendant's counsel desire that he be excused?
DR. KOESSEL: Would you kindly excuse the defendant from attendance at today's session because he is sick. He merely let me know that he is sick and that he cannot attend today, and I shall therefore be much obliged if you would excuse him from attendance today.
THE PRESIDENT: At defense counsel's request, the defendant Rothaug will be excused because of his illness.
You may proceed.
RUDOLF OESCHEY - Resumed DIRECT EXAMINATION - Continued BY DR. SCHUBERT:
Q May I continue? Witness, yesterday we got to the Strobel case, and you had just told us that was not a case where the facts had been extended but where the legal point of view had been changed. I now want to ask you, did the public prosecutor at the second trial adapt the sentence for which he asked to that change of the legal point of view?
A The transcript of the second trial shows a remark concerning the sentence for which the prosecutor asked, and I quote: "The prosecutor orally filed his indictment against Strobel under an offense against Article II Section 2 of the Malicious Acts Law." Concerning the final motion of the prosecution, the record has the following to say, and I quote: "The prosecutor asked that the defendant should be regarded as a dangerous habitual criminal within the meaning of the indictment, and be sentenced to death." That is to say, there are contradictions in the record, for within the moaning of the indictment the prosecutor could not ask for the death sentence, because when he made his indictment he did not describe Strobel as a dangerous habitual criminal. Maybe the record is incorrect, and the prosecutor, when making the indictment, did actually describe Strobel as a dangerous habitual criminal. But it is also possible that the record is correct, and that the prosecutor, when making the indictment, by mistake omitted to describe Strobel as a dangerous habitual criminal. It cannot be assumed that the public prosecutor intentionally omitted that statement, because as can be seen from the files, the prosecutor at the second trial had received instructions to ask for the death sentence.
Q Is it of legal significance whether the public prosecutor, when filing the indictment, mentioned the legal provisions concerning a dangerous habitual criminal or not?
A Concerning the proceedings against Strobel, and in particular concerning the sentence passed on him, that question is without any significance. It was neither possible nor customary for the public prosecutor in such a case to file a new indictment in writing, in which the change in the legal point of view that had occurred since the first trial was taken into consideration, and also it was not necessary for the public prosecutor in making his oral indictment to introduce that new legal point of view.
Q You have explained the relations between the prosecution and the changed legal point of view. Now I would like you to tell us what points of view the court had to take into consideration if it wanted to base its judgment on such a changed legal point of view?
AAccording to the law, all that is necessary is that beforehand the defendant had his intention particularly drawn to the fact that the legal point of view had been changed, and that he had been given an opportunity to conduct his defense accordingly. All that can be seen from the provisions of Article 265 of the Criminal Code of Procedure.
Q In the prosecution's affidavit, Exhibits 149, 236, and 228, criticism is exercised concerning the point that you did not tell Strobel that the legal point of view had been changed. What do you have to say about that?
AAt the first trial, the court, with me as presiding judge, can comply with that provision. When the judges were considering the judgment and arrived at the conclusion that it was possible that Strobel was a dangerous habitual criminal, thereupon and in that case it would have to be judged on other points of view than those mentioned in the first indictment. The court decided to tell the defendant about that, and for the examination of that question and for the preparation of the defense, to discontinue the trial. We proceeded accordingly, and that can be seen from the decision which was announced and which is laid down in the record of the 30 of November 1943. The reasons given for that decision contain an explanation to the defendant Strobel about the change in the legal point of view which might conceivably occur.
Q How much time did the defendant have at his disposal for preparing his defense until the next trial?
A For the preparation for the second trial, the defendant himself had three months, and counsel approximately four weeks.
Q Witness, at the second trial, was it necessary to repeat information to the defendant that the legal point of view had been changed?
AAll commentaries and quite a number of decisions of the Reich Supreme Court gave a clear answer that at the second trial it is not necessary to point that out again, if the first trial was discontinued on account of the fact that the defendant had been told that the legal point of view had changed, and all this applied to tho Strobel case.
BY THE PRESIDENT:
Q May I ask a question, please? I think we understand the point that you are making, but I should like to ask if this is not true: you have referred many times to the fact that the legal point of view changed. Now isn't it true that the legal point of view changed because of facts which were brought out at the first trial and which facts were not alleged in the indictment?
A No, Your Honor, that is not so. At the first trial, no new facts were established, for the previous convictions of the defendants at that time were already a subject of discussion.
Q Yes, they were the subject of discussion at the first trial, but those facts which were the subject of discussion at the first trial were not alleged in the indictment, were they? You said so yesterday.
A The previous convictions could only be discussed with the register of penalties on hand which the prosecutor introduced at the first trial. From that register of penalties, we saw that the defendant had so many convictions.
Q Yes. Those facts which were brought out were not alleged in the indictment, were they?
A That he had previous convictions? No, I don't think that was mentioned in the indictment.
Q That is what you said yesterday. Then the change in the legal point of view did arise from the facts which appeared in the trial, namely, concerning his previous convictions which were not alleged in the indictment?
A No. That was not mentioned in the indictment, but under the German -
Q I understand. Go ahead.
BY DR. SCHUBERT:
Q. Witness, perhaps you could answer one more question in connection with this subject. Is it inadmissible under the German Penal Code of Procedure to discuss the previous convictions of a defendant at the trial if these previous convictions are set down in the indictment?
A. No. That is certainly not inadmissible. No, it is quite a matter of course that in every case one tries to find out whether the defendant has had any previous convictions or not.
BY JUDGE HARDING:
Q. How are these previous convictions established, and what opportunity has defendant to meet the question of fact involved?
A. I am sorry, Your Honor, but I didn't get the translation?
Q. How are previous convictions established? How are they proved? And what opportunities does the defendant have to meet the charge of previous convictions which may be correct or may not be correct?
A. In Germany, we keep a so-called register of penalties in which all penalties -- or anyhow almost all important penalties -which have been imposed on a German citizen are entered. That register was kept by the prosecution within the area of that district court where the defendant was born, and in every criminal case of any significance the public prosecutor introduced that register of penalties. At the trial, the defendant was then told that according to the penalty register he had incurred so and so many previous penalties. He then had an opportunity to say either that was correct or to contest the fact that those entries in that register were correct. If any doubts arose on the basis of the entries in that register, the files of the case could be procured, and with those files on hand one could find out whether the defendant actually had been convicted and had been sentenced to the penalties shown in the register.
BY DR. SCHUBERT:
Q. Witness, in connection with this, I have just put before you the files of the Strobel case. Please tell me whether those are the court files of the Strobel case.
A. Those are the original court files of the Georg Strobel case; the files of the Special Court at Nurnberg.
Q. Do you have an indictment before you?
A. On page 30 of the files, there is the first page of the indictment.
Q. Please just read out the first two sentences or just the first two lines of the indictment.
A. Georg, Strobel, born on the 26 of June 1893 at Unterreichenbach; married; auxiliary laborer in Schwabach; previous convictions:
Q. Thank you. That is enough.
BY THE PRESIDENT:
Q. That I take it that your opinion as to the German law amounts to this: that under German law a defendant, without any notice in the indictment, could be confronted for the first time with facts, which if proved, could change the punishment from imprisonment to death?
A. Yes, that is possible, but in such cases the provisions of Article 265 should be taken into consideration.
Q. I understand.
BY DR. SCHUBERT:
Q. Witness, if the prosecution enters the remark: "Previous Convictions" in the indictment, how could the prosecution find out that there had been previous convictions?
A. It was always the rule that the prosecution had found out about that from the registry of penalties.
BY JUDGE HARDING:
Q. Another question. In all cases where the defendants had previous convictions, did they have to be considered as a habitual criminal?
A. That depended on the type of previous convictions and it also depended on the length of the sentences and the number. The prerequisites; on the basis of which the defendant could be considered a habitual criminal, were bases on Article 20-A of the Penal Code, and to fulfill those conditions, he must had two previous convictions which had resulted in at least six months each imprisonment. If after that he committed a third offense for which again he was sentenced to imprisonment of at least six months, then he could be classified as a habitual criminal. Those were the purely formal pre-requisites.
In addition, it was necessary that the evaluation as a whole of his offense as well as of his character indicated that the defendant concerned was in fact a habitual criminal.
Q. That is, you had to have certain pre-requisites of time served in confinement or is an penitentiary, and a certain number of convictions and then after that pre-requisite was established, you had discretion to determine whether or not from his character and the other factors, he was or was not?
A. We were not only able to examine those formal pre-requisites but we were under official obligation to find out whether he was a dangerous habitual criminal or not.
Q. But from those formal facts alone that determination was not made; that then became a matter for the discretion of the court to determine whether he was in fact a dangerous criminal. You say, from his character and the nature of the offense which he committed previously?
A. That was only found at the trial in the course of the total evaluation of his previous offenses, of his character, of his general conduct, and the evaluation which was made at the trial itself.
Q. In spite of the fact that he had a certain number of previous convictions and a certain amount of punishment had been imposed previously it was still possible for the court to hold that he was not a habitual criminal? That is correct, isn't it?
A. If a proper scrutiny of these offenses showed that those offenses did not originate from criminal inclinations, that is to say, that these offenses had only been committed because the opportunity had arisen for the defendant to commit them, then it was not justified to take the legal point of view that the defendant concerned was a dangerous habitual criminal.
Q. Then did you have to go into the facts of those previous cases?
A. Those facts were discussed at length and very thoroughly with the defendant at the trial---I mean the former sentences passed on him for previous offenses.
Q. But you did have to go in to the facts of those previous cases for this evidence to determine whether he was a habitual criminal?
A. The facts which were laid down in those judgements had always been established with legal force. That we couldn't change. That we had to accept as it had been laid down in those former judgements.
Q. So your basis of the facts was solely the record of his previous cases?
A. Yes, quite.
THE PRESIDENT:
May I ask Dr. Schubert, is Article 265 of the Code of Procedure in evidence?
DR. SCHUBERT: Your Honor, I don't believe I am wrong if I say that Article 265 is contained in my Document Book II, which I have introduced. Just a moment, and I will be able to tell you for certain........
Your Honor, Article 265 is contained in my Document Book II Exhibit 34, and it appears on Page 21 of my document book.
THE PRESIDENT: I take it that Article 267-A is the law of 28 June 1935 and was applied in connection with Article 265 Section 1 of the Code of Procedure. Article 267-A is the one which states that "If the main proceedings show that the defendant committed an act which deserves punishment, according to the common sense of the people, but which is not declared punishable by the law, then the court shall investigate," and so on, and concludes in parenthesis with a statement that "Article 265 Section 1 applies."
DR. SCHUBERT: Your Honor, I am afraid the translation didn't come over properly. I heard several times that Article 267-A was quoted.
THE PRESIDENT: That is correct.
DR. SCHUBERT: And at the moment I really can't say what provision is contained in that Article 267-A.
THE PRESIDENT: I just told you. That is the provision to the effect that if the main proceedings show that the defendant committed an act which deserves punishment, according to the common sense of the people, but which is not declared punishable by the law, then the court shall investigate, and so forth, whether justice can be helped to triumph by a proper application of the penal law. In the parenthesis it says that Article 265 Section 1 applies accordingly. I asked you if in practice those two sections were not applied together.
DR. SCHUBERT: Just a moment.