Mr. Wooleyhan: Yes, Your Honor.
Dr. Koessl: The originals of the files here—I don’t know—probably the prosecution has the copy, and perhaps that copy also has the mistake.
Presiding Judge Brand: It is a question of what the document says and it should be able to be ascertained with definiteness. The suggestion that the document may have used the wrong word is not satisfactory to us. We want to know what word was used in the original document.[537]Go ahead to something else and straighten that out afterward.
Dr. Koessl: Witness, at the trial before the Special Court at Nuernberg, were any facts brought to light which were not mentioned by the judgment passed at Neumarkt?
Defendant Rothaug: That is clearly evident from the judgment. In addition to the facts which had originally been established, a further fact had been established according to which the defendant had attacked the old people who were living on a lonely farm with a dung fork and had exerted so much pressure on them that the only way for them to save themselves was to unleash the dog.
When evaluating the character as a whole of the defendant, as the judgment shows, that fact was taken into account. That fact in the last analysis was decisive.
Q. Can you show that that point in particular was very decisive? Can you show us that by quoting a passage from the original file?
A. That is shown by our attitude to the clemency question. In our opinion on the clemency question we, without exception, repeated those facts which had been decisive for us in deciding on the sentence. We did not state other general points of view concerning the clemency plea because we didn’t know them, and secondly, because we were of the view that they didn’t affect us in any way. That brief opinion on the clemency question says—
“The character of the defendant has been clearly described at the trial, in particular also the fact that the defendant, apart from the offense which in its execution was very grave, has also made himself guilty of violent behavior toward his employer.”
“The character of the defendant has been clearly described at the trial, in particular also the fact that the defendant, apart from the offense which in its execution was very grave, has also made himself guilty of violent behavior toward his employer.”
In other words, it is made perfectly clear here that the last point of view was decisive for us.
Presiding Judge Brand: May I ask you a question to which the answer, I think, could be brief? My notes show that the defendant was sentenced to death for violation of articles 2, 3, and 4 of the law or decree concerning Poles and Jews. Is there such a provision in your judgment? You needn’t read it. Just tell me if that is in there.
Defendant Rothaug: Yes.
Presiding Judge Brand: Thank you.
Dr. Koessl: The witness Doebig said that the offense in his view was not designed to prove that the offender was a public enemy. Would you, therefore, please briefly summarize the pointswhich led you to assume that a very serious offense had been committed?
Defendant Rothaug: The justification for our sentence can be seen from the opinion given by the court, and that is before this Tribunal. I cannot say any more. All I can add is, that specifically for this case that is to say for the original case that had to be dealt with, that is to say, for molesting the woman in a sexual way, there was a decision from the Reich Supreme Court which stated an opinion specifically in regard to this question and discussed it from its basic angles, and that decision evidently was the cause for considering the death sentence at all.
With us a further point of view was added and it was that decision that was made available to the court.
*******
Presiding Judge Brand: I should like your professional opinion. Was the nullity plea[538]involved in the Lopata case? I don’t remember at the moment.
Mr. Wooleyhan: Yes, Your Honor.
Presiding Judge Brand: What is your best, honest judgment as to whether or not if Lopata had been a racial German there would have been a nullity plea and a direction from the Reich supreme court to retry the case? What is your honest opinion about that?
Defendant Rothaug: Mr. President, these two cases cannot be compared with each other because the Reich Supreme Court in this case stated its opinion on the basis that he was a Pole.
Q. Now, I am asking if Lopata had been a racial German, all other facts being the same as they were in the Lopata case, is it your judgment that the nullity plea would have been invoked and that the Reich Supreme Court would have ordered the case sent back to you for another trial? I should like your opinion on that.
A. Mr. President, this question is very interesting, but I cannot even imagine that possibility, even theoretically, because the very elements which are of the greatest importance could not be applied to a German.
Presiding Judge Brand: That’s all I wanted to know.
*******
TRANSLATION OF DOCUMENT NG-630PROSECUTION EXHIBIT 428
LETTER FROM DEFENDANT SCHLEGELBERGER TO CHIEF PUBLIC PROSECUTORS AND SENIOR PUBLIC PROSECUTORS, 20 JULY 1935, CONCERNING THE “STRUGGLE AGAINST POLITICAL CATHOLICISM”
LETTER FROM DEFENDANT SCHLEGELBERGER TO CHIEF PUBLIC PROSECUTORS AND SENIOR PUBLIC PROSECUTORS, 20 JULY 1935, CONCERNING THE “STRUGGLE AGAINST POLITICAL CATHOLICISM”
The Reich Minister of Justice
V a 25 399
Berlin W8, 20 July 1935Wilhelmstrasse 65
[Illegible Stamp]
[Handwritten] 2 copies sent to [illegible]
To: Messrs. Chief Public Prosecutors and Senior Public Prosecutors
Subject: Struggle against political Catholicism
For your confidential information and notice, I enclose a copy of the Prussian Ministerpraesident’s decree of 16 July 1935—St.M.I. 7905—to the Oberpraesidenten and Regierungspraesidenten, etc.
I decree it to be the duty of all prosecuting authorities to cooperate closely with the competent State Police and administrative authorities in taking action—with the deliberation necessary to avoid mistakes but also with the severity necessitated by the dangerous nature against all manifestations of the efforts of political Catholicism to undermine the unity of the State and create discord among the people, wherever they appear without regard for the person or rank of the perpetrator.
[Handwritten remarks on left margin illegible; illegible signature.]
For this purpose, the application of the following laws will be found particularly useful: Articles 130a, 131, 134a, 134b (as of 1 September 1935) Reich Criminal (Penal) Law; further, articles 1 and 2 of the law against insidious attacks on the State and Party and for the protection of Party uniforms of 20 December 1934[539](Law Gazette I, p. 1269); the decree of the Reichspraesident for the Protection of People and State of 28 February 1933[540](Law Gazette I, p. 83); the law against the founding of new parties of 14 July 1933 (Law Gazette I, p. 479); and the law against public collections of 5 January 1934 (Law Gazette I, p. 1086).
The cases must be investigated with the utmost rapidity, so that the punishment will follow the crime as quickly as possible. The penalties called for at the trials shall be such as the nationalsense of justice deems appropriate to the dangerous nature of these intrigues against the State and people and the unscrupulousness of the perpetrators.
A report must be made to me in quintuplicate in all cases where proceedings of this type are initiated. At the close of the investigation a concluding report on the incidents indicating the measures to be taken will be submitted to me. In case of an indictment, the bill of indictment, and later the sentence, will be submitted, each in quintuplicate. If the sentence imposed is made the subject of an appeal, a report must be made to me immediately, indicating the probable result.
This circular decree will be published in the next number of “Deutsche Justiz,” together with an extract from the decree communicated below, issued by the Prussian Ministerpraesident Goering on 16 July 1935.
As deputy:
[Signed]Dr. Schlegelberger
PARTIAL TRANSLATION OF DOCUMENT NG-1808PROSECUTION EXHIBIT 557
EXTRACTS FROM THE OFFICIAL FILES IN THE CASE AGAINST LUITPOLD SCHOSSER, A CATHOLIC PRIEST, SENTENCED ON 19 DECEMBER 1942, UNDER THE LAW AGAINST INSIDIOUS ATTACKS ON STATE AND PARTY, BY A SPECIAL COURT HEADED BY DEFENDANT ROTHAUG
EXTRACTS FROM THE OFFICIAL FILES IN THE CASE AGAINST LUITPOLD SCHOSSER, A CATHOLIC PRIEST, SENTENCED ON 19 DECEMBER 1942, UNDER THE LAW AGAINST INSIDIOUS ATTACKS ON STATE AND PARTY, BY A SPECIAL COURT HEADED BY DEFENDANT ROTHAUG
National Socialist German Workers Party
Kreisleitung Amberg-Sulzbach (Gau Bayrische Ostmark) Bayreuth
Daily newspaper of thedistrict: Amberg-SulzbacherZeitungOffice and Editor’s Office AmbergRegierungsstrasse 1Phone No. 6Amberg, 12 June 1942
Kreis Office
Amberg, Kaiser Wilhelmring 9
Telephones: 346 and 325
Banking accounts:
County Savings Bank Amberg, Account No. 1501
Municipal Savings Bank Amberg, Account No. 150
The Kreisleiter Dr. K./St.
Journal No. 1156/42
(to be quoted in replies)
To the Public Prosecutor at the Special Court, Nuernberg-Fuerth
[Stamp]
Received: 13 June 1942
Prosecutor’s Office
Nuernberg-Fuerth 1c
Subject: Charge against the priest Luitpold Schosser, born at Burghausen/Lower Bavaria, 28 April 1909, at Vilseck since 27 March 1939
On 17 May 1942 the Polish farm laborer, Martin Strysow, died in hospital at Vilseck. The priest Schosser announced in church after the usual Sunday evening May devotion that the transportation to the cemetery and Last Sacrament of the Pole would take place immediately afterward. Induced by this announcement, about 50 people, mainly women and children, participated in the funeral procession and praying loudly, as usual, rendered last honors to the Pole. A large number of the population took offense at this incident.
By this action the priest Schosser has malevolently criticised the national political demands of the National Socialist State. Furthermore, he has debased the dignity of the German people in an incredible way and has caused a great number of fellow Germans to behave in an undignified manner.
Judging from the usual attitude of the priest Schosser it may be expected that after having been informed of the charges made against him, he will try to influence possible witnesses. Therefore, I request his immediate arrest.
Heil Hitler!
[Signed]Dr. Kolb
Oberbereichsleiter
[Rank in Nazi Party Leadership Corps]
[Stamp]
National Socialist Workers Party
Kreis Amberg-Sulzbach
[Handwritten]
To the President of the Special Court with the request to issue a warrant of arrest for an offense against the law against insidious attacks on State and Party.
Nuernberg, 15 June 1942
[Signed]Schroeder
Chief Public Prosecutor
Secret State Police
State Police Office Regensburg
Regensburg, 18 June 1942[Stamp]Received: 19 June 1942Public Prosecutor’s OfficeNuernberg-Fuerth
B. No. 1854/42 II B 1.
With 1 file returned
To the Chief Public Prosecutoras Chief of the Prosecuting Authorityat the Special Court,
Nuernberg
As I request you to gather from the enclosed reports, the case has already been dealt with here. The offense committed by Schosser was handled here in such a way that he was under police arrest from 1–15 June 1942. For that reason I have desisted from carrying out the warrant of arrest against Schosser for the time being. In case the warrant of arrest should nevertheless be executed, I request further information.
By order:
[handwritten]
I. Make note of dispatch.
II. With file.
[Signed] Alt
[Stamp]
Secret State PoliceState Police OfficeRegensburgReceived: 24 June 1942No. 1854/42 B 1
[Handwritten] To the Secret State Police, State Police Office Regensburg, repeating my request of 15 June 1942.
Local Court
2 July 1942
Weiden (Oberpfalz)
[Stamp]
Nuernberg, 20 June 1942Chief Public Prosecutor
[Signed]Schroeder
Arrest!
Very urgent
Copy
1 c Sg 948/42.
Received: 21 August 1942District Court Nuernberg-FuerthCriminal CasesSt.
To the President of the Special Court,
Nuernberg,
With the request to return the files, and to suspend the warrant of arrest, and order the release of the accused.
Nuernberg, 21 August 1942
The Chief Public Prosecutor
as Chief of the Prosecuting Authority
at the Special Court
By order:
[Signed]Hofmann
I. At the request of the Chief Public Prosecutor the warrant of arrest of the President of the Special Court of 15 June 1942 has been revoked, article 126 Criminal Procedure.
II. Order for release!
To the office of the Special Court—give order by telephone to release the prisoner.
III. To the Chief Public Prosecutor—time of release from arrest—13.15 hours.
Nuernberg, 21 August 1942
The President of the Special Court
[Signed]Dr. Ferber
Acting President
To II
Telephone conversation: Court Jail Weiden;
Telephone Charges: 3 Reichsmark
21 August 1942
Wi.
Received: 21 August 1942Public Prosecutor’s OfficeNuernberg-Fuerth
Certified.
Nuernberg, 27 August 1942
Public Prosecution Nuernberg-Fuerth
[Signed]Huemmer, Chief Clerk
The Registrar
[Stamp]
Chief Public Prosecutor
Nuernberg-Fuerth
Files for cases concerning insidious attacks on State and Party
Sg No. /194
Verdict
In the name of the German People
The Special Court for the district of the Nuernberg Court of Appeal at the Nuernberg-Fuerth District Court rules in the criminal case, against—on account of—in public session as follows:
[Handwritten]
Schosser, Luitpold, born in Burghausen, 28 April 1909, single, Catholic priest at Vilseck, at present in detention pending trial is to be punished by imprisonment of 1 year and 3 months and costs on account of two compound offenses, namely misusing the pulpit, as well as [violation of] article 2, paragraph 1 of the law against insidious attacks on State and Party,[541]committed by attacks against the National Socialist Reich in the religious-political sphere.
The 3 months of police arrest and of detention pending trial will be taken into consideration.
[Signed]Rothaug
Dr. Gros
Groben
TRANSLATION OF DOCUMENT NG-770PROSECUTION EXHIBIT 291
CIRCULAR OF THE REICH MINISTER OF JUSTICE, SIGNED BY DEFENDANT ENGERT, TO THE ATTORNEYS GENERAL, 12 DECEMBER 1944, REDEFINING LIMITATIONS ON DIVINE SERVICES FOR PRISONERS[542]
CIRCULAR OF THE REICH MINISTER OF JUSTICE, SIGNED BY DEFENDANT ENGERT, TO THE ATTORNEYS GENERAL, 12 DECEMBER 1944, REDEFINING LIMITATIONS ON DIVINE SERVICES FOR PRISONERS[542]
The Reich Minister for Justice
Berlin W 8, 12 December 1944Wilhelmstrasse 65
To the Attorneys General (except Prague)
Subject: Adjustments in the application of the execution of sentences and detention custody (administrative ordinance) of 29 September 1944 “Deutsche Justiz” [German Justice] page 270.
Copies to the independent institutions, the district court prisons and other court prisons for early distribution.
There is reason to believe that the regulation under No. 4 of the Administrative Ordinance of 29 September 1944—“Deutsche Justiz”, page 270—concerning adjustments due to the war in the application of penalties and detention custody, is being misinterpreted. The regulation that divine services for prisoners and persons in custody will no longer be held is to be interpreted from the context. As the title already indicates, the measures of the ordinance are due to the war. The preamble to the ordinance already defines the purpose of the adjustment of the application of the ordinance due to total war. This purpose also restricts the application of the regulation under No. 4. Divine services are only temporarily canceled and only then where they are incompatible with the demands of total war.
Divine services at the present time are incompatible with the demands of total war where and insofar as they necessitate time which is essential to work for the waging of total war. Nor are they compatible when and where the crowding of prisoners or detainees during divine service constitutes a danger in itself or mixing the congregation of the institution’s church or in view of the small number and the age of the supervisory staff, it represents a danger to the institution’s security and thereby continuous production.
Insofar, however, as the time needed for the requirements of total war is not interfered with by the hours of divine services and the maintenance of the institution’s safety can be guaranteed, divine services may also be held in future especially at Christmas and other sacred holidays.
By order:
[Typed]Engert
Certified: [Signed]Lorenz
Clerk
[Stamp] Reich Ministry of Justice
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS FATHER LUITPOLD SCHOSSER[543]CONCERNING HIS ARRESTS AND TRIAL
DIRECT EXAMINATION
Mr. Wooleyhan: Witness, would you please state your full name and your profession?
Witness Schosser: My name is Luitpold Schosser; I am a Catholic priest.
Q. Father, where is your parish?
A. My present parish is at Wolfseck near Regensburg.
Q. Has that been your parish for some time in the past?
A. That has been my parish for 3 years and 3 months.
Q. Where was your parish before that?
A. Before my trial, my parish was at Vilseck.
Q. Father, where were you born and when?
A. I was born on 28 April 1909 at Bernhausen, in the Holledau [Central Bavaria].
Q. What education did you have, and where was it?
A. For 4 years I attended grammar school in my own home village Hadersbach. Then, for 9 years I went to the high school at Straubing. Then, for 5 years I attended the university at Innsbruck, and for 1 year the Theological Seminary at Regensburg. In 1934 I was consecrated priest. Then, I was assistant vicar in several places. At the end, I was at Vilseck. Then my trial started, and after my trial from 1 February 1944 I have been a priest at Wolfseck.
Q. Father, while you were a priest at Vilseck, were you ever arrested and imprisoned?
A. At Vilseck, I was arrested twice, and at Regensburg, I was arrested once, because after my arrest I was not allowed to go back to Vilseck.
Q. Would you please state the dates, so far as you remember, of each time that you were arrested and imprisoned?
A. Yes. For the first time I was arrested on 1 June 1942, and I was kept in prison for 14 days by the police. That warrant was filled in by the Gestapo. After I had been imprisoned for 2 weeks, I was released. In the meantime, a second warrant for my arrest was issued by the Special Court of Nuernberg, and on 1 July I was arrested again. Then, until 21 August—that is for 7 weeks, I was in custody pending trial at Weiden in the district court prison of Weiden. Then, again, I was released and a few days later another warrant for my arrest was issued again by the Special Court of Nuernberg. Then, I had been in prison until 18 December 1943. For the third time I was arrested, that was at Regensburg—and my arrest was made by the Gestapo.
So, altogether, I was arrested three times; twice at Vilseck and once at Regensburg.
Q. Father, at any time during any of these three arrests, did the police ever tell you who had signed the warrant for your arrest?
A. Yes, when I was arrested the second time, the police commissioner of Vilseck told me that the warrant was issued by Rothaug from the Special Court of Nuernberg.
Q. After you had been arrested, Father, and imprisoned those three times that you describe, you also mentioned a trial. Were you ever indicted and tried before a court?
A. My trial took place on 18 December, that is on 19 December 1942, and the trial took place before the Special Court of Nuernberg at Amberg. The trial took place because of a [Heimtuecke] insidious attack, during a sermon which I had made 15 months before at Vilseck.
Q. Father, you state that you were tried on 19 December 1942, by the Special Court of Nuernberg, but that the trial took place in Amberg. Is that correct?
A. Yes, that is correct; it took place at Amberg, at the town hall.
Q. Would you please repeat again, so far as you know, the violation of law for which you were indicted and tried?
A. Well, the first arrest originated from the burial of a dead Pole who died at Vilseck and was sent over to the morgue from the hospital as was customary there with the dead. The dead Pole, as every other Catholic, was transported from the hospital to the morgue, therefore, the church had given him the sacrament in the morning. In the morning of this day he asked for a priest, and he was prepared for death. During the afternoon, then, he died. In the evening before we had our evening vespers—that was on a Sunday—the attendant of the morgue came to see me, and he informed me that I had to order the transport of this dead Pole from the hospital to the morgue and would have to take over the arrangements. I asked him whether it was permissible for me to do that, and he said, “Yes; the Magistrate has ordered that you do it.” Therefore, I had no further doubts, and I went to the morgue, that is, to the hospital, and I ordered the transport which was sponsored by the church.
Before I made my sermon at the evening vespers, as is customary at every transport of the dead, I communicated to my parish people that later on a dead Pole would be transported from the hospital to the morgue, because the people want to know who is the dead, who is in the coffin in order to be able to know whether they have any obligation to attend the funeral or not.Of course, as it was a Sunday, there were quite a number of people in the church, comparatively, and quite a number of them attended the funeral, because thus they had an opportunity to go to the cemetery, which was situated outside of our village.
Now, because of this communicating the fact to the people, I was charged mainly by the Special Court. They considered it an invitation, that is to say, that I intentionally invited the population to attend the transport of the dead Pole. That was the main charge made against me by the Special Court of Nuernberg.
They said that at this occasion, as the president said during the trial, I was said to have expressed religious feelings and used them intentionally in order to sabotage the directives of the State.
Q. Father, may I interrupt, please? You state that at the trial, the main charges, so far as you know, were this conducting of a funeral for the Pole and a sermon that you preached the previous year. Is that correct?
A. Well, the main charge in my trial was the sermon. That was the real reason for the trial, during the trial, the sermon was not so much dealt with but rather this whole matter with the Pole was dragged into the trial. In each detail it was talked about—just about this matter of having had the Pole transported. I was considered an insidious priest, and this was told to the public.
*******
Q. Now, Father, the sermon that you delivered on the occasion in 1941, to which the indictment referred, what text was that sermon?
A. Well, the text was the sermon of the seventh Sunday after Pentecost. It is read every year. It is in Chapter VII of Matthew. “Beware of false prophets who walk around in the cloak of lambs but who in their interior are roaring wolves. You will recognize them from their cloaks.” That was the beginning of my sermon.
Q. Father, was this verse from Matthew the text of the sermon on that day every year?
A. Every year we use the same text.
Q. Now, Father, of the witnesses that were called against you—I believe you said there were four or five, which was it?
A. There were four witnesses from Vilseck and the Gestapo official Alt, but during the trial he didn’t talk at all.
Q. Well, of those four witnesses that did speak at the trial for the prosecution, how many of them heard your sermon of the preceding year, on the seventh Sunday after Whitsuntide?
A. Two witnesses had heard my sermon. It was the wife of the Ortsgruppenleiter and the newspaper distributor Meyer Johann.
Q. What did the newspaper distributor say or testify about your sermon?
A. During the interrogation by the Gestapo official, he declared that my preaching had been aggressive; he said that my sermon was an incitement.
Q. Father, you said that during the Gestapo investigation, he said that your sermon was aggressive and inciting, but that during the trial he denied that. Is that true?
A. Yes, during the trial he denied that he had said that the sermon had been an inciting sermon. This expression “Hetzpredigt,” [inciting sermon] he did not use. That is what he said during the trial.
Q. Describe, Father, the testimony of the other witness that had heard your sermon; namely, the wife of the mayor and Ortsgruppenleiter.
A. Well, the wife of the Ortsgruppenleiter had only referred, during the trial, to what she had told the Gestapo official, and the other witness, Kuffer, brought forward merely personal matters in order to paint me as an insidious priest.
Q. But this last witness that you speak of, Kuffer, had not heard your sermon, had he?
A. No, he had not heard my sermon.
Q. But the mayor’s wife had, is that correct?
A. Yes, the wife of the Ortsgruppenleiter attended the sermon and heard it.
Q. Well, Father, at your trial did the mayor’s wife testify or was the statement she had given the Gestapo only introduced?
A. No, the wife of the mayor only answered questions put to her by the presiding judge. She, herself didn’t say much.
Q. During the trial, Father, so far as you remember having observed it, will you please describe Rothaug’s conduct and words and statements from the bench.
A. Right after my trial, in the cell of my prison, I took some stenographic notes concerning the remarks made by the presiding judge, Dr. Rothaug, and on the strength of those stenographic notes which I have here on my table, I can make the following statement concerning the trial. First of all, the presiding judge referred to my education and there he became very personal right away and charged me with the fact that my whole theologicaleducation was rather backward, and that it would have been much better if I had studied something other than theology. He said that I only observed the whole development of national socialism as a bystander looking from the window. During my trial, the Hitler Youth passed the town hall, and at that occasion the presiding judge made the remark, “those down there, the Hitler Youth, that is the real life.” Later on, in the course of the trial, the presiding judge very often made ridiculing remarks concerning the Catholic religion, and made insidious remarks concerning the profession of priest. Some of these remarks, I can tell you literally, and they were the following: “You Catholics allege that only Catholics will reach heaven, all others will be in hell.” That is an assumption which no Catholic will ever make. Then, he said, and this remark was repeated again and again, “Not water gives value to man, but rather the blood.” And, of course, the water he referred to was the Catholic sacrificial water, or the water on the head—sanctifying water. For the National Socialist ideology has to be given to the child already with the milk of his mother; and there it appears my parents had failed to educate me in this direction. Those were merely personal remarks.
Q. Father, may I interrupt a moment. Are you saying that the presiding judge, Rothaug, made the remarks, such as you have just described, to you from the bench, during the trial?
A. Yes, from the bench, during the trial. These remarks, I may say that after all they were not only meant for me, myself, but for the whole profession of priesthood.
Q. Father, you have said that in your indictment, the main charge was one of malicious statements made during that sermon in 1941, but you also said that during your trial Rothaug said much more about the business of your giving a funeral service to the Pole. Can you give any facts to explain why you say that?
A. Yes. Special Court Judge Rothaug dragged two things mainly into this trial. First of all, the removal of crosses from the schools in the district of Vilseck, and then this transporting of the dead Pole from the hospital to the morgue. If I may add something concerning this matter of transferring the dead Pole; there again I can give you some more details.
Q. Yes, Father, I would be very interested in what Rothaug said about your transporting the dead Pole.
A. The whole courtroom was fully occupied. I, as well as the people attending the trial, was quite astonished especially by Rothaug going into the details concerning this Pole matter. He came back again and again on this matter in order to prove to methat I really had made insidious statements; and that I had had insidious and bad intentions, and on this occasion Rothaug showed a terrible hatred against the Polish people.
*******
Q. Father, after your trial was concluded, what sentence did you receive?
A. I was sentenced, on the grounds of insidious attacks, to 15 months of prison, and 3 months of custody pending trial were counted.
Q. Father, after the ceremony and sermon which you preached on the seventh Sunday after Whitsunday 1941, how long was it from then until your trial, approximately?
A. About 15 months.
Q. Then, for 15 months after you preached the sermon for which you were tried as having made insidious utterances, nothing was done to you by the way of trial; is that correct?
A. No, during these 15 months nothing happened.
Q. One moment, Father, please. Fifteen months after your sermon, during which nothing was done, you were tried, and part of the case was the funeral sermon you conducted for a Pole, is that correct?
A. May I ask you to repeat the question, please?
Q. Father, 15 months after your sermon, during your trial, your conduct of a funeral for a Pole was a part of the trial, wasn’t it?
A. Yes, during the trial.
Q. Now, Father, when was this funeral for the Pole that you conducted?
A. That was on the third Sunday in the month of May. I think it must be about 17 May 1942.
Q. In other words, Father, the sermon that you preached, on which the main count of your indictment was based, was 15 months before your trial, and the Polish funeral was 2 or 3 months before your trial? Is that correct?
A. Well, the funeral of the Pole was in May 1942, and the trial took place in December 1942. That would be about 6 months.
Mr. Wooleyhan: There is no further direct examination, Your Honor.
Presiding Judge Marshall: Does any defense counsel desire to cross-examine this witness?
Dr. Koessl(counsel for defendant Rothaug): I ask to examine the witness.
The President: You may proceed.
CROSS-EXAMINATION
Dr. Koessl: Witness, for the first time you were arrested on 1 June 1942, is that correct?
A. Yes.
Q. You said before that you made the church sponsored transfer [to the cemetery] of the Pole, and that you were arrested because of that. Was this church sponsored transfer of Poles prohibited?
A. It was not prohibited for Poles, but I was charged with only the publicizing of this fact.
Q. I could not quite get that, unfortunately. May I ask you to repeat what you were charged with?
A. I was charged with the fact of having publicized this church sponsored transfer which is usual at Vilseck, and that I made it public. That was explained as if I had invited and even asked the population to attend the funeral.
Q. In other words, you were not charged with having transferred this Pole and sponsored it by the church, but rather, it was the fact that you had violated the State directives, is that correct?
A. Yes.
Q. The first point was dealt with only by the Gestapo?
A. Yes.
Q. In other words, Rothaug had nothing to do with that?
A. No, he had nothing to do with that.
Q. However, you were charged with other violations of State directives, were you not? Is that correct?
A. No, that is not correct. The Ortsgruppenleiter Stubenvoll had informed the Kreisleiter, Dr. Kolb, and he raised the point again because this sentence of 2 weeks was not enough for him, and that is the way this matter came to the Special Court in Nuernberg, and then it went on.
Q. Well, did this matter lead to a trial then?
A. No. As far as I know—
Q. Please go on.
A. As far as I know from my lawyer, this matter was diverted by Berlin, and that is why the second time, on 21 August, I was released again.
Q. But then there were other denunciations against you?
A. Yes, later on. After I had been released for the first time and when I was in custody pending trial for the second time, only then was this sermon brought to the knowledge of the [Nuernberg] Special Court.
Q. It seems that you were also denounced by the Ortsgruppenleiter for other activities.
A. Well, no, I was not denounced. I was only charged with them and reprimanded, but they had nothing to do with the court.
Q. Just a little bit slower, please.
A. At Vilseck, I only discharged my general duties as a priest.
Q. But your activities at school were talked about and other activities which were not compatible with State directives at that time?
A. Well, I have to object to that. That was only the opinion of Stubenvoll. Only in his opinion were those activities against the State. I never violated any State directives in that matter. I only stuck to my church directives.
Q. However, your youth organization and your school activity, what did they object to in those matters?
A. Well, for instance, as far as the pupils of the vocational school were concerned, I gathered them for education after the lessons. The Ortsgruppenleiter Stubenvoll didn’t like that, and then he made quite bad and mean difficulties for me. He threatened that I would be charged. Furthermore, I gathered the adult youth every 3 or 4 weeks in order to have discussions and a little lecture. There again, Stubenvoll sent informers, in spite of the fact that he had no right whatsoever to intervene in church matters.
Q. You speak of intervening in church matters. Can you confirm that as a result of the centuries-old tension between church and state in Germany, there were penalties for the misuse of the priest’s profession which were as old and which had been issued centuries ago?
A. I know only the “Pulpit Article,” and that had existed for quite some time.[544]Otherwise, I don’t know anything.
Q. Well do you know for instance, the Protizio of common law? You don’t know that?
A. No.
Q. The Protizio.
A. No, I don’t know that.
Q. But, you know that the “Pulpit Article” was issued during Bismarck’s rule; that is 1871, is that correct?
A. Yes. Even during the trial, Rothaug made a remark about it to me.
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Q. Now, on the strength of that sermon at that time, you gave as a basis, chapter 7 of the Matthew’s Evangelical?
A. Yes.
Q. Was it the fact that this text was made the basis for this sermon which was objected to?
A. Well, that could not be objected to because I had no power over that. I had to take that text.
Q. Is it correct if I assume that, of course, the words which you joined to that chapter were objected to?
A. Well, yes. The whole sermon, as I said, was explained by the witness in a way as if I meant by the false prophets the leading personalities of Germany of that day.
Q. Did you mean them at that time?
A. I spoke in quite a general way, and I left to the people what they wanted to understand from my sermon.
Q. Well, did you mean the leading personalities? I would like to know that.
A. I spoke in a quite general way on these matters of ideology, and I left it to everybody. If I meant somebody then, of course, I meant, first of all, Rosenberg who actually was the man who was involved with the National Socialist ideology versus religion, by his book.
Q. In other words, the assumption of the public prosecutor was correct?
A. It was an assumption and they couldn’t prove it.
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Q. Now, witness, you have admitted that the newspaper distributorGeyer expressly stated that your sermon was very aggressive.
A. Yes, the witness Geyer in the minutes taken by the Gestapo had testified that, and they had written it down.
Q. Also, the wife of the Ortsgruppenleiter, according to your own testimony, had testified that in church she had objected to what you said?
A. Yes.
Q. Was the wife of the Ortsgruppenleiter a woman who went to church very often?
A. Yes, relatively she went rather often to church. But one gained the impression—and also the other people who went to church confirmed this—that she went to church because she wanted to hear everything that was said in church.
Q. This woman, did she go to church before the time her husband became an Ortsgruppenleiter?
A. Yes, also during that period already, Frau Stubenvoll went to church regularly.
Q. And now you assume that this woman suddenly went to church only as an informer?
A. That was the general opinion in the village; it was not only my opinion.
Q. You have admitted that when Rothaug questioned this woman he generally stuck to what she had testified before the Gestapo, that is, as a line for his questioning.
A. Yes.
Q. Furthermore, you said that he asked leading questions?
A. He submitted it to her in a way that she could only answer yes or no in a very easy way. That was the impression the public gained. My family was there partly.
Q. However, this woman had already told all that. How can you say that Rothaug put leading questions to that woman and told her what she was to say?
A. Because in her testimony she was rather uncertain.
Q. Why did she suddenly get uncertain in her answers if she had already told the Gestapo the very same things?
A. Between the questioning by the Gestapo in August and the questioning during the trial in December there was quite a period of time, and Frau Stubenvoll didn’t have a good memory of whatshe had stated at that time. This impression my defense counsel gained, also.
Q. In other words, the first statements of this woman were apparently under the impression of your sermons, weren’t they?
A. Well, only what she may have stated to the Gestapo. During the trial, from her own knowledge, she didn’t speak too much. She only answered.
Q. Did you ever see a witness who does anything else than answer questions?
A. Well, the first witness, Stubenvoll—he just spoke and he told and reported everything he knew against me though he didn’t get any questions to that effect at all.
Q. But this man probably, on the strength of the Code of Criminal Procedure was summoned to explain what he knew. Can you remember that?
A. I cannot remember well whether he was summoned to do just that. He started to speak against me.
Q. Now, you mentioned the fact that Rothaug had alleged that in your tender youth your parents had forgotten to give you the education of a National Socialist.
A. At that time I was much older, but indirectly this came as a hint concerning my parents, and my brother confirmed that to me and the young lady who attended the trial, that he even hinted at my parents just when he spoke of education, of education from the tender youth onward.
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Q. Witness, the entire question of the burial of the Pole was mentioned only because, apparently, it was contained in the files, and there it was used as further evidence of your attitude of opposition to the State?
A. These files, however, had nothing to do with the actual matter charged in the trial.
Q. However, it was further evidence of your entire attitude toward the State at that time?
A. Yes, that is how the presiding judge interpreted it and also expressed it.
Q. How long did the whole trial take?
A. From about 8 o’clock until 1:30 in the afternoon.
Dr. Koessl: I have no further questions. Thank you.
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EXAMINATION BY THE TRIBUNAL
Presiding Judge Marshall: I understand that your testimony now is that the sermon referred to in your testimony was preached on the third Sunday in July of the year 1941. Is that correct?
Witness Schosser: I can now tell you the exact date. It was 20 July 1941.
Q. I understand you to say that from the time of the preaching of that sermon a period of 15 months elapsed during which nothing happened. Is that correct?
A. Fifteen months passed until the trial. About a year later there was the denunciation because of this transfer of the Pole.
Q. About a year elapsed, then, before you were arrested, and then 3 or 4 months after that until the trial took place, is that correct?
A. Yes, that is how it was.
Presiding Judge Marshall: Very well.
Mr. Wooleyhan: May the witness be excused, Your Honor?
Presiding Judge Marshall: The witness may be excused.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG CONCERNING THE CASE OF FATHER LUITPOLD SCHOSSER[545]
DIRECT EXAMINATION
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Dr. Koessl(counsel for defendant Rothaug): I want to talk to you about the Schosser case, S-c-h-o-s-s-e-r. The Schosser case is mentioned in the English transcript on page 1743 by the witness Ferber;[546]and in the English transcript on page 3021 through 3066 by the witness Schosser. Witness, in this case the main charge against you is that you displayed special initiative. In addition to that the charge is made repeatedly that Schosser was prosecuted because he buried a Pole. Between what proceedings does one have to distinguish when the name Schosser is mentioned?
Defendant Rothaug: This is a case of two proceedings, in fact. The first case had to do with the funeral of a Pole, but I wantto state right now that naturally the funeral itself was not considered a punishable offense. That is the more recent case. Then, another proceeding is of importance here which has to do with the sermon on a Sunday in church. That case, the first case, in connection with the funeral of a Pole did not lead to a main trial or a sentence, but this sermon on the Sunday did. Those are the first things between which one has to distinguish, because in this connection the charge is made that I had started or initiated the second case after I had failed with the first one; and my aim is now to prove to the Court by submitting evidence, submitting documents, that I was not the initiator in this case, and in general, I object against that charge.
Q. Did you also deal with the first case that you find in the file before you? Look at page 6 of the file attached to the main file. It is the case SG-948, from 1942.
A. There are two cases, and it would probably be helpful to mention the file designations to avoid confusion. The first case—the case of the funeral of the Pole, if you want to call it that—has the file designation 1-C SG 948, from the year 1942.
Q. What was the cause for that case?
A. That case was initiated on the basis of a denunciation which the Kreisleiter of Amberg on 12 June 1942 sent to the public prosecutor at the Special Court Nuernberg-Fuerth. In this report it is set forth that, by the behavior of the accused Schosser in church, particularly by making an announcement about the funeral, and by guiding people to the cemetery, the German population to a far-reaching extent was caused to attend the funeral; and that that behavior was considered an offense against the measures which were prevailing at the time concerning the separation between Germans and Polish people.
Q. What did the senior public prosecutor do?
A. In this connection it may be necessary to point out that there was a definite regulation which I find in the official gazette for the diocese at Regensburg, published by the bishop’s office, Regensburg. In this publication, periodical, is a reprint of a decree, an official decree, concerning the spiritual care of civilian workers of Polish nationality employed in Germany. The bishop’s office reprints that decree by the Reich Defense Commissioner in the defense districts 7 and 13. Our area was in that district and this was published for the information of the priests. The decree deals in detail with everything that had to be done. Figure 5 is of importance. It says that the interment of Polish civilian workers, male or female, can be taken care of by German priests. Participation of the German population has to be reduced to the absolutelynecessary minimum. No sermon may be held. That decree contains eight sections. I do not know if the remainder is interesting to the Tribunal. I could just refer to them if it is desired.
Q. If the Court is interested, will you please refer to them.
Presiding Judge Brand: You may.
Defendant Rothaug: First, on figure 1, it is stated that participation of civilian workers of Polish nationality in the church services of the German population is prohibited. Then it is stipulated that church services for Polish workers, male or female, have to be conducted separately. Where there aren’t enough Poles living, individual spiritual care is permitted, but under all circumstances it should be avoided that Poles and Germans should be together in the same room for that purpose. Services should only be conducted in the German or the Latin language. Publication of newspapers, periodicals, or Sunday magazines in the Polish language is prohibited. The priests had to restrict themselves just to the spiritual care of the Polish people. It ends with the words as follows: It is expected that the German priests should always be conscious of being Germans and of the duties arising from that fact and that offenses will be punishable.
Dr. Koessl: Was it made clear whether Schosser knew anything about that regulation?
Defendant Rothaug: That, at first, could not be seen from the report received, but after he was interrogated, he referred to the fact that he had not known anything about all these circumstances and that that was what had got him into this trouble.
Q. Now, we want to find out what happened after that report was made.
A. It is first asserted here that I had commissioned Ferber, or that I had told Ferber that he should issue an arrest warrant, but Ferber had told me that he did not know what reasons to give for it and that subsequently I had handled the matter myself with a vicious remark and had issued the arrest warrant. The background history of that arrest warrant seems very dubious, but I don’t think it necessary to enter into that. On 15 June 1942 I issued the arrest warrant and that arrest warrant was based upon article 2, paragraph 1 of the insidious acts law, and article 130a of the Penal Code. In the case of this article 130a of the Penal Code, we were concerned with the so-called Pulpit Article, the offense of abusing the pulpit. It is of importance that that article alone which would have supported the proceedings, is a regulation which has nothing to do with national socialism, but is an article which emanates from Bismarck’s time, the time of the“Kulturkampf” [cultural struggle] in Germany, and the then liberal democracy factions in Germany brought it about against clericalism. This concept is found in article 130a. The arrest as far as facts were concerned was not based upon the circumstances that Schosser conducted that funeral for the Pole, but because as one could assume, and certainly can assume today, but on his knowledge of the German regulations and provisions and on announcing the intended funeral, and the transfer of the body from the morgue to the cemetery in order to persuade the German population to a far-reaching extent to participate, and therefore, to indirectly demonstrate its opposition against the regulations of the State. The funeral itself is not a matter for the church, but a matter for the State for the government of Germany, and the clergymen are only permitted to participate in the funeral, and to perform the duties commensurate with religious custom, to say the prayers, and everything that belongs with it. But the funeral was actually carried out by the municipal office. The discussion of such a matter and the announcement, conscious of the fact that it would cause a disturbance among the population, that was against the provisions of article 130a; and if this is connected with the intention to demonstrate opposition against measures of the State, which was certainly the case here, then the prerequisites required by law are complied with, and I do not know of anything further to investigate; but if all these elements are there, I have the obligation to issue the arrest warrant, and on that basis I did.
Q. Now, the witness Schosser has pointed out that he had already been arrested by the Gestapo, and that at that time he had been punished; he had been sentenced to 14 days. Can you determine from the files whether you issued the warrant of arrest before you knew of the police measures against Schosser?
A. From the files it can be seen without doubt that when I issued the warrant of arrest, I did not know anything about the occurrences at the Gestapo office of Regensburg which found its climax in the protective custody imposed upon Schosser for 14 days. That can be seen from the following.
Q. When did you receive information about that from the Gestapo?
A. I was just going to say that because you have already asked me. On 15 June 1942 the prosecution sent the arrest warrant to the Secret State Police at Regensburg. Subsequently, on 18 June 1942 the Secret State Police Regensburg replied with the information that it did not want to carry out the arrest at that time because a police measure was imposed, that is to say, the protective custody for 14 days on Schosser and returned the files togetherwith the arrest warrant to the senior public prosecutor and that is the way he was informed in connection with that funeral. The Secret State Police already had taken measures. I was not informed about these facts, as can be seen from the file. Just the same, that arrest warrant was carried out, and that was justified.
Presiding Judge Brand: May I ask you a question. Would you tell us in a few words the specific provision of the insidious acts law which was violated in this case? I don’t understand that.
Defendant Rothaug: That was article 2, section 1. I can read it if you think it is desirable; I can quote it if you think it is desirable.
Presiding Judge Brand: I would like to hear that if it is brief; I haven’t it before me.
Defendant Rothaug: This is the provision. Schosser—
Dr. Koessl: Give the legal provisions, Witness.
Defendant Rothaug: Yes, that is what it is. It is suspected that Schosser made vicious remarks in public, derogatory remarks about the leadership of the State, the NSDAP, its provisions and institutions—
Q. Witness, will you please read the insidious acts law itself—rather than—
A.—which are designed to undermine the confidence of the people in the leadership. In connection with that I want to mention that we always include the actual text of the law in the arrest warrant.
Presiding Judge Brand: Give me the date of that law, please?
Dr. Koessl: The insidious acts law.
Defendant Rothaug: The insidious acts law is of 20 December 1934; 20 December 1934.[547]
Presiding Judge Brand: That is all.
Dr. Koessl: And now will you please tell us—
Defendant Rothaug: The law speaks of statements, but the same applies to behavior which permitted a conclusion, that is to say an act which looked at on its own merits may be correct, but by the evaluation which it is given by others, may have the character of a malicious act. I have also explained that we were not informed about these matters. The defendant was arrested and was questioned before the local court in Weiden.
Q. Did he do anything about his arrest?
A. He filed a complaint against the arrest, he filed a complaint against the arrest warrant; a decision was made.
Q. About that appeal, did you have anything to do with that decision?
A. That decision was formally not correct, but substantially it is very interesting because by that decision the complaint against my arrest warrant was rejected; and rejected by the one person who now charges me with having issued that arrest warrant. That was signed—it happens to be signed by Mr. Ferber, who asserts that I had pulled a dirty deal with my arrest warrant.
Q. You yourself had nothing to do with that decision?
A. I had nothing to do with that decision; the case went on and was soon suspended after the defendant had been interrogated, and that was one thing we didn’t know when we issued the arrest warrant, he explained that for quite some time he was in the army, and it was granted him that he might not have been as well informed about the entire atmosphere around the question of Poles in Germany as one would have expected otherwise. The case was suspended on 27 August 1942, with the reason that it could not be proved that the defendant intended to demonstrate his opposition against the measures of the State concerning Poles.
Q. You have been charged that because that case was not successful, you had initiated a second proceeding, the one concerning the sermon. Will you please, first state what the prosecution had decided already on 9 July 1942, that is to say, before the end of the first proceeding. You find it on page 12 of the files, a disposition made by the prosecution on 9 July.
A. That is the worst part of the charges which are raised against me in this connection. As I have said, I can refute it by documents, by just mentioning several documents in chronological order which will clarify the connections. In the file concerned with the funeral of the Pole, on page 12, 9 July 1942, there is a short disposition on the part of the prosecutor where he requests a list of previous connections and political record. Therefore, for that funeral case, one wanted to have the political record of Schosser from the Party. The prosecutor shouldn’t have done that really, but he was new there, and he committed that blunder, and that was how the whole thing started. It was prohibited to request any political record of a clergyman because one considered—one knew generally that the clergy was against national socialism; that was no secret; but now in spite of that, the Party reacted upon that request and sent a certificate of that kind, not to me, but to the prosecutor who requested it.
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Q. What was the course of the second case, the case of the sermon? In that case, serious charges were also made against you concerning the treatment of the clergyman Schosser. Will you briefly describe the course of those proceedings, and will you please state whether the part you took in that case justifies the charge of being the main instigator leveled against you?
A. In the further course of the proceedings that charge cannot be considered since the proceedings were already started when the case came before me. On 25 August 1942, I issued the arrest warrant. We did not go as far at that time as the confession or the statements made by Schosser in the trial would have permitted us to go. If we had assumed that his entire sermon from beginning to end was directed against the wolves in sheep’s clothing, we could have characterized the case as one of high treason, and we would have had to pass it on for that reason to the competent authority. We only assumed that in the course of the sermon various doubtful statements had been made which had nothing to do with God the Father, and that was how it came to trial.
Nothing further happened. Investigations were carried out such as in every other case, and there was a defense counsel.
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Q. Now we want to continue; where did the session take place in the second case?
A. In the town hall court at Amberg.
Q. What parts of the population attended that session?
A. All categories of people. The court room was right in the center of the town and when people had found out that there was something going on, they just came.
Q. What was the composition of these people, according to their denominations?
A. The great majority of the population was Catholic.
Q. Did you have to take certain considerations on account of that?
A. Of course. One had to avoid anything which could hurt the religious feelings of these people. Cases against clergymen required a great deal of caution and a great deal of tact so that no wrong impressions were made, because it was generally considered undesirable to make the impression, in any way, that it was intended to injure the religious feelings of these people.
Q. What, in brief, were the charges against Schosser and how did he defend himself against them?