On passing sentence the judge remarked that the convicted person may be placed on probation, which was later granted.
Opinion of the Reich Minister of Justice
It is correct that nowadays the judge should no longer have to adhere strictly to the letter of law in a slavish way. This freedom in applying the law should, however, not lead the judge to base judgment on a law, which the legislator has cancelled. Moreover, the manner in which paragraph 363 of the Reich Criminal Code is applied assumes a law which is still in existence. Paragraph 363 of the Reich Criminal Code was cancelled because particularly during the war it was no longer possible to counter all forgeries of certificates generally with the purpose of furthering one’s advancement merely by light contravention punishment. The many opportunities of changing one’s job frequently these days offer the temptation to facilitate this change of position through such forgeries of testimonials. Such temptation must therefore be countered by a threat of more severe penalty than was provided by the former paragraph 363.
This generally more severe measure applied to such cases does not, however, prevent from justly taking into consideration the particular circumstances of individual cases within the framework of now existing law codes, if the offense as in this instance is really a mild one. The judge sensed correctly that B.’s offense corresponded to the degree of guilt of the former paragraph 363. He could have provided for this also under existing laws.
B. is a yet young and inexperienced girl of whom one may assume that she was not entirely conscious of the extent of her deed. This impression is confirmed by the primitive means of the forgery. B. endeavored to leave her present firm in order again to work in a larger enterprise. For this reason she wished to make her recent activity appear to the best advantage. It cannot simply be assumed that she thought of a better paid position in doing so, especially as it is not so simple to secure such a position under wage scales in force at present. In consequence, it could be rejected that she sought a monetary gain. Thus only an ordinary document forgery could be dealt with in accordance with paragraph 267 of the Reich Criminal Code. As the penal code did not demand imprisonment, having regard to the special circumstances of this case, the judge could have imposed a fine according to paragraph 27b of the Reich Criminal Code.
The payment of this fine would have more forcibly brought home to the still young B. the antisocial action of this deed rather than an imprisonment, which the judge immediately postponed.
14. REFUSAL BY A SCHOOL CHILD TO GIVE THE GERMAN SALUTE
Decree by the Court of Guardians of 21 September 1940
An 11-year-old girl is conspicuous in school through continuously refusing the German salute. She bases this on her religious convictions and cites in explanation some passages from the Bible. In matters concerning the Fuehrer she appears altogether disinterested.
The parents, who also have a 6-year-old daughter, approve of this behavior of the child and obstinately decline to influence the child to the contrary. They also refuse to give the German salute and point to the passage in the Bible, “Do nothing with an upraised hand for it displeases the Lord.” They adhere to this in spite of advice by the court and the director of the school. The mother refuses altogether to discuss it with the child. The father is willing to do so, but says that the child should decide herself. The parents prove themselves to be adversaries of the National Socialist State also in other respects. They possess no swastika flag. They did not enter their child for the Hitler Youth: they were expelled from the National Socialist Public Welfare Association, because they will not support the collections, despite an adequate income of the man. Nevertheless they deny being adversaries of the movement. The juvenile board suggested that the parents should be deprived of the right to bring up the two children on account of their attitude.