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.
THE WITNESS: Your Honor, in the Strobel case -
DR. SCHUBERT: Just a moment, witness. Your Honor, may I clear up this matter?
THE PRESIDENT: I asked you to.
DR. SCHUBERT: Article 267-A, which you mentioned, refers to a case where the main proceedings have shown that the defendant can not be convicted under a definite provision or definite article of the Penal Code, but that the notorious Article 2 contains the analogy is to be applied. In this case too the law states that Article 265 is to be applied, that is to say, the law states that in such a case, too, the attention of the defendant must be drawn to the fact that the legal point of view has been changed. But in the Strobel case Article 2 was not applied, that is to say, the analogy provision was not applied.
THE PRESIDENT: We understand that. I was asking if the two sections were not in practice applied together. You may proceed.
BY DR. SCHUBERT:
Q One more question in this connection, witness. If a defendant, from the very beginning had been indicted as a dangerous, habitual criminal by the prosecution, well all the penalties from the Penal Registry in fact in the indictment?
A No.
Q I am now reverting to the Strobel Case. When the first trial had been discontinued what steps did the prosecution take then?
A To start with, the prosecution procured the most important of the penal files of Strobel and then asked the court physician to give an expert opinion from the point of view of criminal biology. On the basis of those files and the expert opinion of the physician, the prosecution reported to the general public prosecutor that unless different instructions were issued at the new trial of Strobel they would ask for the death sentence on Strobel under Article 1 of the Law 4 September 1941.
Naturally, I, myself, had not exerted any influence on the prosecution when they reached that decision. And particularly until the second trial, I neither discussed the matter with the expert of the prosecution nor with the senior prosecutor nor with the general public prosecutor.
Q Several affiants have expressed their doubts about the fact that Strobel, who until then had not had any previous convictions for offenses under the Malicious Acts Law, was convicted as a dangerous, habitual criminal, although, the proof of his convictions lay in quite a different field. Please comment on that point.
A To start with I have to say in general that the offenses of a habitual criminal, according to the permanent legal practice, by no means have to be of a uniform nature, nor, according to their inner origin, do they have to belong to the same category of crime nor do they have to show the same type of aim and goal.
As a rule, the habitual criminal personifies a definite type, that is to say, he is a swindler or he is a burglar or he steals from the cash register or he gives false promises of marriage; but there are also habitual criminals whose inclination is to commit much more comprehensive criminal offenses and, finally, there are also habitual criminals, who have an overall inclination to commit crimes of all types.
The defendant Strobel belonged to that latter category. From the Penal Registry one can see that he had 48 entries in the Penal Registry and that, after all, is a somewhat unusual figure. Furthermore, one could see that those entries referred to all possible types of crime. There were convictions for theft, for fraud, for embezzlement, for offensive behavior, for bodily injury, for sex crimes, for disturbance of the peace, for damage to goods, for receiving of stolen goods, for threats, for slander, etc.
It was further seen that mild, lenient sentences had been passed on Strobel. He had several times been sentenced to penitentiary terms but all of that had been quite in vain. Therefore, the expert on criminal biology, in his opinion, described him as an incorrigible asocial element. According to all reports which we received about Strobel, he was a definite plague to all his neighbors and there was no chance, whatsoever, that any penalties might bring him back to a normal life.
Therefore, there was no doubt that the prerequisites of Article 20-A of the Penal Code and of Article 1 of the Law of Alteration did exist.
Q Were there any precedents concerning treating the offenders under the Malicious Acts Law as habitual criminals?
A One may say that was in fact the continuous legal practice. That wasn't a novel thing, not only at the Special Court at Nurnberg but other special courts too. In the case of offenses against the Malicious Acts Law they did assume frequently that the offender was a habitual criminal, and I can remember for certain one decision passed by the Reich Supreme Court on this problem in which such evaluation of a habitual criminal was approved.
For the rest, at this trial here two cases have been mentioned, the Klein and the Eisenhofer Case. I tried Klein, and Rothaug tried Eisenhofer. Both were considered to be dangerous, habitual criminals. However, they were not such hopelessly depraved characters as Strobel and, therefore, only safety custody was ordered.
Q Witness, you have mentioned the Eisenhofer Case. I wonder whether that isn't by any chance a mistake. Didn't you get it mixed up with another case?
A Maybe the name is wrong.
Q Wasn't the name Eisenberger?
A Yes, of course, you are quite right. I was referring to the Eisenberger Case.
Q I am now coming to violent criminals and the first case I want to refer to is the case of Kaminska Wdowen. The Prosecution introduced Exhibit 201 and 201-A together with extracts from files. The Prosecution also introduced affidavits, Exhibits 229, 235 and 635 and also the witness Gros, transcript page 2828, was heard on those cases. Please comment on it.
A The account given of that case by the witnesses who were heard on it gives the impression as if Kaminska had been convicted merely for having thrown that stone but that was not the case.
What was of great significance were the events which had proceded that attack which are not mentioned by the witnesses, but which were the factors which made that case so grave that led to it being evaluated as the crime of a violent criminal.
The witness, in giving an account of that case, omitted to mention that the offense began with an act of blackmail committed by the two defendants for they approached their employer, whose name was Gundel. He was an old, weak man. They asked Gundel for money to which they were either not entitled at all or to which their title was extremely doubtful. And when Gundel asked that they should leave him some time they tried to force him to give them the money by attacking Gundel, that is to say, the defendant Wdowen attacked Gundel and slapped his face. That explains why the Corporal Wanner appeared on the spot and intervened. That factor, too, was omitted by the witnesses and that is why it was not made clear that Wanner came to the aid of Gundel and in doing so Wanner limited himself to asking the two defendants to leave Gundel's room. But the witnesses omitted to mention that the two defendants new assaulted Wanner who, after all, had behaved absolutely correctly and Kaminska, when Wanner had been able to ward off the first attack, took up a hoe and tried to attack Wanner with that hoe and Wanner was only able to evade that blow by showing presence of mind and closing the door, which happened to be between him and Kaminska. Shortly after Kaminska threw a stone-
THE PRESIDENT: Wait a minute. If I remember correctly, you are merely reviewing now the findings which arc contained in the transcript of the case and which is in evidence. We have examined that.
THE WITNESS: I merely wanted to explain that the whole of that action did not consist of isolated facts but that it is necessary to evaluate all those facts together in order to comprehend the legal evaluation of the offense as a whole.
BY DR. SCHUBERT:
Q Witness, I now ask you to tell us what was the nationality of those two defendants.
A Wdowen's nationality I am afraid I can't remember. The Kaminska woman was a Pole. Anyway I don't think Wdowen was a Pole.
Q Well, what was he?
A He was a Ukranian.
Q On the basis of what provision did the prosecution file its indictment?
A The prosecution filed an indictment on the basis of Roman Number I Section 4 No. 1 of the Law Against Poles.
Q Against whom?
AAgainst both defendants. If I am right--well, I am not quit sure whether my memory servos me well--(document handed to witness). Against Kaminska the indictment was based on Roman I, Article 4 of the Law Against Poles and with Wdowen it was based on a crime of having aided in somebody else's crime and Article 4 to 7 of the Law Against Poles. Also she was convicted on the basis of having offended against Article 4 of the Public Enemies Law.
Q You saw that in the official court files?
A Yes, I saw that from the original files of the Special Court in Nurnberg.
Q SC-256 43, two witnesses, Pfaff and Gros, were against that judgement. Gros said that he voted against it. Pfaff wasn't quite clear in what he said about it. My first question to you is, did you in any other case announce a judgement without having had at lease one associate agree with your view, as is provided by law?
A No; I never did that.
Q Did you force Gros and Pfaff to agree with you in passing the death sentence on these defendants?
A In this case they were as free in their decision and in their opinion as I left them in every other case.
Q What did the court say of the offense against the woman, Kaminska? Was the decision in accordance with the indictment?
A No. The court did not convict Kaminska under Article 1, Section 4 No. 1 of the Law Against Poles and among us judges there was a fairly long discussion on that point, that is to say, we debated the question as to whether the offense of Kaminska could be sentenced under the provision of the Law Against Poles which I have just mentioned. As far as I remember the associate judge Pfaff was inclined to answer that question in the affirmative. Gros, as well as myself, however, had our doubts about that. That legal provision assumes that the violent crime was directed against a member of the armed forces in which case the death sentence becomes mandatory. But in view of the entire facts of the case it appeared doubtful whether Kaminska, in committing her offense, had realized at all that the person she was attacking was a member of the armed forces. According to the facts that element did not play a part. In the view of Gros and myself, therefore, the elements needed for convicting a defendant under Roman numeral I Section 4 of the law Against Poles were lacking. The further examination had to discover whether the offense was to be sentenced under Article I of the Law Against Violent Criminals of December, 1939. That question, too, we debated at great length and that is a point which I remember. We scrutinized. quite a number of decisions made by the Reich Supreme Court and studied a number of commentaries. As far as I recollect, neither of the associate judges had any doubts about that view.
With these Reich Supreme Court Decisions tho legal questions had been clarified beyond all doubt.
Q Witness, is it correct that Kaminska was not convicted under the Law Against Poles?
A Kaminska, as the Law Against Poles prescribes in Articles 2 and 3, was convicted under the Law of 1939, the law against violent criminals which applied to all violent criminals in Germany and she was convicted under that law as concerns the question of her guilt as such and as concerns the sentence.
Q The witness Gros testified that she had been convicted for racial and political reasons. What do you have to say to that?
A That is altogether untrue. The decision was based solely on the logical application and interpretation of the law in accordance with the decisions of the Reich Supreme Court while taking into consideration the particularly difficult and dangerous conditions prevailing in the rural districts in wartime. Such points of view as those of race and biology and whatever else you may call them as I pointed out yesterday, played no part whatsoever in any of my decisions and judgements.
Q And you will now tell us something about the Wdowen case. The witnesses Gros and Pfaff evidently tried to minimize that offense. What do you have to say to that?
A The facts of the case can be seen from the judgment which is available to the Tribunal, and I therefore need to go into any detail. Apart from the fighting and the aid given by Kaminska, this was a very violent and altogether unusual attack against the policeman; it was a kind of attack on the policeman who had arrested the Kaminska woman and Wdowen was trying to get the policeman to release his grip on Kaminska. Gros and Pfaff as witnesses disputed that fact; one can only refer to the fact that Wdowen himself never disputed his own intentions and his motives.
Q What was the legal evaluation cf the Wdowen offense?
A That offense by Wdowen was considered by the Court as a crime under Article IV of the Law Against Public Enemies and the indictment had given the same evaluation. I should like to point out that assaults of that nature against police officials ever since the beginning of the war, and that is by all courts who tried such crimes, had been sentenced under the same provisions, that is to say under Article IV of the Law Against Public Enemies. As a rule, the Wdowen case by no means an exception. The need to protect particularly rural districts and the need which become greatly increased due to the war time conditions, and such need for protection was due to the fact that the police was very short of staff, and, because of all that, an attack of that kind on the police which worked under very short of staff, and because of all that, an attack of that kind on the police which worked under very difficult conditions always resulted in a very severe penalty.
Q Was the Law Against Poles applied in the Wdowen case?
A No, it wasn't. Only Article IV of the Law Against Public Enemies.
Q Has the Wdowen case the subject of differences of opinion at the consultations?