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?
AAs far as I remember, it wasn't.
Q Did the prosecution consider both defendants as meriting the death sentence?
A The prosecution from the very beginning considered that the death sentence should be asked for both defendants, and accordingly, it informed the Reich Ministry of Justice before the indictment was filed. The Reich Ministry cf Justice occurred with the view of the prosecution and approved it.
Q I am now passing on to the next case of violent criminals, the case Sippl, S-I-P-P-L, Prosecution exhibit 485. Can you just tell us quite briefly what that case was about?
A Sippl was a man with previous convictions, and he was arrested because he had committed further offenses. He tried to escape by assaulting one of the prison wardens in a particularly base way with a piece of wood that had a sharp edge. That offense was, without any doubt, an offense under Article I of the Law Against Violent Criminals, and for that reason alone the death sentence had to be passed.
Q What view did the Prosecution take of that offense?
A From the very beginning the prosecution thought that the death sentence should be asked for.
Q Did you find that case on that list from the Ministry, the list on clemency cases?
A Yes. It was entered there as so-called clear case.
Q I am referring to Exhibit 252, on page 23. I am now coming to a few special cases; the first case I wish to discuss is the Fischer case, Prosecution Exhibit 479. What was that about?
A Fischer, I think it must have been in the autumn of 1941 so as to avoid being called up, at his place of work stuck his right hand into a machine and had his index finger and his middle finger mutilated. From the legal point of view one could only consider a crime of self-mutilation under Article V, Section I, No. 3, cf the Extraordinary War Time Law.
Q And what sentence was mentioned in that provision?
A The first sentence mentioned was death sentence, and in cases of lesser gravity, it was possible to pass a penitentiary or prison sentence.
Q And why did you not assume that this was a case of lesser seriousness?
A Circumstances which might have characterized the case as being of lesser gravity were not established at the trial. Fischer admitted that merely because he did not want to become a soldier he had mutilated himself. Any motive which might have rendered that act as comprehensible he couldn't mention at all. For instance, he never said that any outsider had tried to influence him; or, that he had committed this act because he was worried about his family; nor, did he say that he was in a state of depression or anything of that kind. It was quite obvious that evasion of service with the armed forces was his motive. One can say that the Fischer case is one of the examples for that type of crime, the crime of self-mutilation for which the death sentence was mandatory.
Q Can you find that case in the clemency list from the Ministry of Justice?
A Yes, I found it there; again, it is entered as a clear case.
Q Exhibit 252, page 86. I am now coming to the Mueller case, M-u-e-l-l-e-r-, Therese. That case has been discussed here frequently, Exhibit 247, examination of Ferber, transcript page 1409, and examination of Doebig, transcript page 1761. In this case the nullity plea was made, and the case was retransferred. What offense was the Mueller woman charged with?
A Mueller had been charged that by her letters to her son at the front she had advised or tried to persuade her son to become a deserter.
Q What was the sentence which passed on the Lueller woman at the first trial?
A She was convicted for having tried to persuade her son to become a deserter and she was sentenced to five years in a penitentiary In passing that sentence the court assumed that the Mueller woman had acted thusly because she was worried about the safety of her son's life and that meant that the case was characterized as a case of lesser gravity.
Q Who was the presiding judge at the first trial?
A Ferber was.
Q Was the judgment contested?
A Yes, a nullity plea was made.
Q And what de decision of the Reich Supreme Court?
A The Reich Supreme Court quashed the sentence passed by the special court in Nuernberg, and the court only referred to the extent of the penalty, the reason being given that according to the facts which had been established by the trial at the special court, the worries which the mother had concerning the safety of her son's life had not been the only motive led her to persuade her son to desert.
Q And what was the question raised at the second trial -- when you were presiding judge, if I remember correctly.
AAt the second trial I was presiding judge, and at the second trial we only had to discuss the extent of the penalty, that is to say we were only dealing with the question was this an ordinary case of lesser gravity.
Q Were any facts established at the second trial which spoke in favor of the case being considered a case of lesser gravity?
A From the original files I could see that I tried that case for about three hours, and that means that I examined the case with great thoroughness. I was unable to find any reasons which in view of the decision of the Reich Supreme Court, the view of which was binding for us, that could justify the assumption of a case of lesser gravity.
Q The witness Doebig thinks that one could have found such a reason as the defendant Mueller had caused her son to volunteer for service with the armed forces to regain his status as a man capable and worthy cf bearing arms.
Please comment on that matter.
AAs a matter of fact, neither Ferber nor myself found that the Mueller woman had caused her son to try and again his status as a man worthy of bearing arms. Her son had done that on his own initiative, and Frau Mueller did nothing more than to abstain from letting her son make such efforts.
Q Ferber further says that at the second trial you had mentioned and had in fact stressed the fact that the Mueller woman had communist views and relegated to the background the relationships between mother and son; is that true?
A No. The communist views of the Mueller woman were discussed at great length at the first trial when Ferber was the presiding judge; and in the judgment of the first trial that was characterized with more severity than it was in the judgment of the second trial. You can see that without any doubt if you compare the two judgments.
Q What was the outcome of the second trial?
A Within the limits that were laid down by the decision of the Reich Supreme Court, neither legal nor factual points cf view turned up which might have justified an assumption that had been a case of lesser gravity. As a result, according to the provisions of Article V of the Extraordinary War Time Criminal Law, the death sentence was mandatory.
THE PRESIDENT: The Tribunal will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: Persons in the Court room will please find their seats.
The Tribunal is again in session.
BY DR. SCHUBERT:
Q. We shall now discuss the case of Von Praun, as mentioned in Exhibit 231 of the Prosecution, and Ferber has made statements about this in the record on page 1410. Have you had any files about this case?
A. No.
Q. It is alleged that you treated an offense against the Malicious Acts Law, under the Law of Undermining the Fighting Morale.
A. What I remember is that Von Praun was indicted before the Special Court for an offense under paragraph II of the Malicious Acts Law because in an air raid or during an alert he made derogatory remarks about the State, in an air raid shelter. The remarks themselves I do not remember any more. All I know is that objectively speaking they amounted to an undermining of the fighting morale. The Reich Ministry of Justice, it is true, had decided that the man must be prosecuted under paragraph 2 of the Malicious Acts Law and had told the Prosecutor in the main trial to examine particularly whether or not the remarks made by Von Praun amounted to a crime under the law of undermining the fighting morale and to proceed accordingly.
Q. What was the result of the trial?
A. During the case in chief the suspicion could not be removed that the defendant Praun had by his remarks intended to undermine the fighting morale. As I recall the case the Prosecution moved for that reason to interrupt the case in chief so that he, the Prosecution, could have an opportunity with the People's Court to go into the question of undermining the fighting morale.
Q. And what was the decision reached by the Court?
A. The decision was that the Courts, as I remember the case today, gave way to the motion of interrupting the trial. That means it did not turn over the case to the People's Court but the Special Court continued to prosecute the case and all that happened was that the People's Court was given the possibility to examine the case, as to whether or not the case amounted to an undermining of the fighting morale.
Q. What the witness has said now is borne out by the testimony of the witness Lautz in the record on page 5754, and Rothaug on page 6953.
The witness, attorney Meyer, has testified that you made up your mind from the beginning to turn the case to the People's Court, although under the orders of the Ministry you were in a position to deal with the case under tho malicious acts law, particularly as the defendant could be accused by having acted under the impression of a heavy air raid, what about that?
A. What the attorney Meyer says is incorrect. In this, as in any other case, I have formed my opinion on the basis of the case in chief, and, of course, I went into the question of whether or not the question of undermining the fighting morale was important to me, because should that apply it would not only have been illegal but quite pointless to sentence a man under the Malicious Acts Law because otherwise a nullity pleas was a foregone conclusion and sentence would have been suspended. Speaking generally, I went a long way to find out what the offense was about and particularly I feel in that case I had based myself on the act to undermine the fighting morale. On one occasion I myself ruled in a case similar to that of Von Praun. A woman had been indicted who under the impact of an air raid made extremely derogatory remarks which quite definitely amounted to undermining the fighting morale. As these special conditions could be taken into consideration she was sentenced to one year in prison under Malicious Acts Law.
Q. Was that the case of Degen whom you were talking about?
A. Yes, that is the case of Degen.
Q. Attorney Meyer also testified that the decision in the case of Von Praun had been influenced by the fact that he was an official of the Protestant Church?
A. The fact that Praun was an official in the Protestant Church did not play any part in finding the sentence.
Q. On the basis of this decision it is alleged that Von Praun committed suicide. What can you tell us about that?
A. Why Von Praun committed suicide I cannot toll you nor do I think that the witnesses are in a position to say anything about it. Anyway, I do not believe that the decision reached by the Special Court of Nurnberg should raise the point that the man committed suicide Any reason for despair did not exist as far as Von Praun was concerned, as tho case had not yet been turned over to the People's Court. Further more, he and his defense counsel under the rules of procedure knew the value of the order which had reached the Prosecution, namely, that possibly the case could be interrupted and that the question of undermining the fighting morale could be investigated, and the recital of the case at the Special Court in Nurnberg could not have been a surprise either to Von Praun or his defense counsel. I might point out that Herr Von Praun's suicide occurred at the earliest three weeks after the case in chief had been heard in Nurnberg, and that could never have been the reason why he committed suicide.
Q. Now, finally, we have the cases of Scheck. This is contained in Exhibit of the Prosecution No. 228. What can you tell us about that case?
A. Scheck had committed an offense against the war economy regulations. He used a printing works to exploit and to print for his own use a large number of ration cards, in order to have those rations cards then handed over to a number of firms who would then give him merchandise which he then would sell at inflated prices.
We need not go into all detail. Scheck's character, was that of a typical war profiteer. The case of Scheck was perhaps the most grave offense against the war economy regulation with which the Special Court in Nurnberg ever has dealt with in war time.
Q. Very well. Did the Prosecution intend to have the death sentence applied for?
A. From the outset this was the intention of the Prosecution and as I saw from the files it describes the case as a particularly grave case under the war economy regulations.
Q. Witness, Lipps takes exception to the fact that you had never allowed any doubt to be voided that Scheck would be sentenced to death by you. That can you offer about that?
A. In the case of Scheck nobody could have any doubt we were dealing with a particularly grave case, and that therefore the death sentence must be pronounced. That was not a surprise to me, to the associates or to the Prosecution, nor could it have been to the defense counsel and defendant himself, who could see from the indictment what sentence he could expect.
Q. Did you include the case in the ministerial list of cases?
A. Yes, it was what we call a clear case.
Q. This is Exhibit 252 on page 113. witness, apart from those death sentences which the Prosecution submitted mainly in affidavits, there are roughly another twenty deaths sentences included in the list of death sentences submitted by the Prosecution. These arc Exhibits of the Prosecution 238, in volume III L, and 496 in the supplementary volume III D. I don't think we need go into the details of all of these cases. I want to put only a few general questions to you. First of all were you in a position to investigate these cases on the basis of the files?
A. Yes.
Q. Did you decide these cases on the same principles which you described to the Court concerning the treatment of the cases before the Special Courts?
A. All cases were decided on the same principles.
Q. Can you tell us briefly what kind of an offense you had in these cases?
A. They were all of them dangerous habitual criminals, most of them burglars, confidence men, a few cases of rape and violence and a number of public enemies.
Q. Were foreigners included among those cases?
A. The case cf Isonzo Pozzo was a case if a foreigner. I could not find any other cases concerning foreigners. This Isonzo Pozzo was Italian.
Q. Yes, was he sentenced to death?
A. Isonzo Pozzo took advantage of the black out and in four cases assaulted a woman in the streets of Nurnberg in order to rape them. I one case he beat down a woman with a wooden stick and this woman was lying in her blood in the street unconscious. He raped her. In the case of the second woman he did not quite succeed.
Q. Thank you very much. That is enough. Did you, witness, examine this material which the Prosecution has submitted and did you arrive at the figure of sixty death sentences which you mentioned yesterday to the Court?
A. This figure of sixty which I gave yesterday refers to the death sentences submitted by the Prosecution in this trial. I can of course not say that the Special Court under my presidency arrived at only sixty death sentences during the war. I do not know the actual figure.
As you have touched upon that question I should like to remark that the figures which I have mentioned in other connections during my examination I do not claim to be entirely and absolutely reliable. Those are estimates which I arrived at through the best of my knowledge and memory and on the basis of the somewhat inadequate documents. This applies to the figures concerning a number of cases I heard, as well as the acquittals and so forth.
Q.-I shall now come to the next complex of questions, courts martial Towards the end of the war you worked as the President of a civilian court martial. What was the legal basis of these courts? Who appointed them and who appointed the Judges?
A.- On the basis of a decree of the 15th of September 1942 in certain Reich Defense Districts the Reich Defense Commissioners could form courts martial. The same decree also provided for the appointment of judges and prosecution, namely that the Reich Defense Commissioner could do these things.
Q.- The decree to which the witness has now referred is contained in Document Book II, of the Prosecution, page 11. Were the Reich Defense Commissioners officials of the NSDAP?
A.- No.
Q.- Were they officials of the state?
A.- Yes, they were. They were officials of the ministerial counsel for the defense of the Reich. They were under the supervision of the Reich Ministry of the Interior. It was their Q.- Thank you, that is enough.
A.- It was their task to administer all premises of the civilian administration in their district and they were subject to the orders of the plenipotentiaries of the Reich.
Q.- Why was the decree forming the courts martial issued?
A.- The reasons why these courts martial were constituted has been explained by the defendant Klemm in this trial. When the enemy threatened the Reich normal jurisprudence was no longer possible because the administration of justice was under the Reich Minister of Justice, The People's Court and tho Reich Supreme Court in a strongly centralized manner and these top agencies wore cut off from the area by the enemy threat with the result that the competency of the People's Court concerning other matters could no longer hear the cases.