The Criminal Case of Johann Gawenda
and Franz Gallus for Murder

Excerpted from:
 
Das Rechtsmittel
der Revision im Strafprozesse
(A Review of Appeals in Criminal Cases)
 
by
Prof. Dr. Josef Rosenblatt
 
Translated from Polish (into German) with permission
by the author Dr. Arnold Blaser
 
Excerpt translated by Daniel Rastatter
from German into English


I. Criminal Case of Johann Gawenda and Franz Gallus for Murder.

The case against Johann Gawenda and Franz Gallus, from Radgoszcz, by the public prosecutor in Tarnow was raised on Feb 9, 1884 for the charge of murder, with the following reasoning:
 
Katarina R. Sroka died on March 28, 1867, leaving a two-year-old daughter named Katie Sroka and an estate consisting of 3 acres of fields and a cottage. Katie's father, Ignatz Sroka, managed the estate following the death of his wife. He subsequently married Marie Gallus. This marriage did not last long, as Ignatz Sroka was convicted of murder and died in prison on April 15, 1875. His widow Marie subsequently married Johann Gawenda, who took over the administration of the estate for the still underage Katie Sroka and at the same time undertook to provide for her maintenance and upbringing. Gawenda neglected these obligations in a most unscrupulous manner, as he monopolized the land and treated its owner so badly that she had to work as a maid and also to depend on charity.
 
In 1881 Katie Sroka disappeared without a trace and no one could give the residents of Radgoszcz and its surrounding villages any information about her whereabouts. This unusual disappearance raised suspicion that Gawenda killed Katie in order to keep her land for himself. Eventually a rumor spread that Agnes Sroka, Katie's half-sister, had confided to another girl, Hedwig Baran, that she had witnessed the murder of Katie by her stepfather, Johann Gawenda, and by Franz Gallus. After a policeman, M. Prus, became aware of the disappearance and the rumors circulating about it, he energetically investigated it and determined that the accused pair had murdered Katie.
 
Hedwig Baran, a girl of 15 years, stated that in the spring of 1882 she often went to work with Agnes Sroka, Katharina Sroka's half-sister, and one evening after returning home from work, Agnes broke into tears. When Baran questioned her about it, Agnes said she was sorry for Kathi. Baran comforted Agnes and assured her that Kathi would surely return and cited a saying that missing persons had only gone to the country. Agnes then replied that Kathi will not return because Gawenda and Gallus had killed her with a hoe one night. The policeman, M. Prus, said Agnes gave him a more detailed statement. Agnes told him that one evening her stepfather, Johann Gawenda, told her, Kathi, and her younger brother to go to bed early, then sent his wife Marie Gawenda to drink in the pub. Her stepfather then left for a short time. After a while he returned with Franz Gallus, who brought a hoe with him. Gawenda approached Kathi's bed and struck her on the forehead with the blunt side of the hoe, then with Gallus, he dragged Kathi to the floor and struck her there again. It was not until he convinced himself that Kathi was dead that he and Gallus covered her with a sheet after having forcefully removed her clothes. The two then carried her out of the room.
 
Due to the use of paragraph 152 of the Code of Criminal Procedure, a court prohibited the direct testimony of Agnes Sroka against her stepfather, Johann Gawenda. As a result of this prohibition, the indirect statements she made in confidence to Hedwig Baran and voluntarily repeated to policeman Prus were put forward as evidence. These statements are worthy of belief because Agnes Sroka had no reason to lie and had not spoken with the intention of harming her stepfather. The lack of injurious intent is noted because the statements were not made under a condition of temporary hostility as she would have corrected her statements when she repeated them to the policeman.
 
After his detention and questioning, Johann Gawenda admitted to the crime according to witnesses Martin Prus and W. Fracz. These witnesses confirmed that this confession was voluntary and related it thus: One night after Gawenda sent his wife to drink in the tavern, he took with him Franz Gallus who came with a hoe, then took the hoe from Gallus and struck Kathi with such a massive blow to the chest that her cry was weak. He then, with Gallus, removed Kathi's body and buried her under a willow tree. When interrogated in court, Gawenda admitted he had given this confession, but claimed he did so only because of fear and abuse inflicted on him by policeman Prus.
 
However, the claim of the accused is invented, because apart from the statements of Prus and Fracz, Gawenda's confession is confirmed by bailiff Johann Buda. According the bailiff, the accused confessed in prison to the murder of his stepdaughter and talked of accusing Franz Gallus, stating that he should accuse him, but said that he himself had to admit the truth because he feels remorse. The confession of the accused is not invalidated by the fact that the corpse of the murdered girl was not found, for after three years several circumstances could have occurred that prevented its discovery. The co-accused Franz Gallus would know nothing about the alleged corpse that could be used against his own self. However, the same evidence that exists against Gawenda, also exists against Gallus, in particular the testimony of Agnes Sroka and the extrajudicial confession of Johann Gawenda.
 
Kathi Sroka, after she had left her property, was employed by Setermus in Radgoszcz for about 1/2 year and Setermus testified that during Sroka's working hours, unknown persons played various practical jokes on her resulting in various damage. These jokes brought about the idea that Gawenda inflicted the damage with the intention of causing Sroka to lose her employment. This loss did in fact occur as she was dismissed from her employment towards the end of 1880. Setermus did not see Sroka even in January 1881, nor did she see her at any later time.
 
In the fall of 188?, Agnes Sroka, the half-sister of Katie, came to Setermus and the latter perceived to her surprise that Agnes was wearing a dress which Setermus had sewn for Katie while the same was in her employment. Setermus asked Agnes how she came to possess Katie's dress, to which Agnes replied that she had bought the dress from Johann Bogacz. Setermus said that this was a lie because she recognized the dress as her own fabric and her own sewing. Agnes became embarrassed and failed to give an answer.
 
Agnes Sroka's possession of the dress, which Katie has taken shortly before her disappearance, speaks strikingly against the defendants because Katie had only the clothes that a poor and abandoned girl would possess. So if a dress, which Katie had worn in her last few days, had been inexplicably in the possession of Agnes Sroka, the presumption that Gawenda killed Katie is inevitable. Kathie Sroka was, in fact, robbed of her clothes as Agnes Sroka voluntarily told policeman Prus and which Prus related.
 
Finally, it must be emphasized that both defendants had an interest in the elimination of Katie Sroka. Johann Gawenda had in fact taken possession of Katie's land and if Katie remained alive, he would have to vacate it. Franz Gallus had used the land of his stepson, Johann Gawenda. It was thus obvious that if Johann Gawenda was expelled from Katie's land, his stepfather, Franz Gallus would be expelled as well. Only the elimination of Katie Sroka made it possible for the accused pair to maintain their unauthorized use of the land. Both defendants thus had a common interest in the elimination of Katie Sroka and because of this common interest they became accomplices in the crime of which they are accused.
 
There exists an additional reason to strongly suspect Franz Gallus in the disappearance of Katie as he has stated that an unknown girl was torn to pieces by dogs in U. This fact, however, stands in no connection with the death of Katie Sroka, as Ignatz Stefanski testified that this case took place seven years ago.
 
As a result of these charges on March 12, 1884, the defendants were tried before a jury in Tarnow.
 
The defendants disputed their guilt. However, the policeman, M. Prus, maintained his previous assertion that Gawenda voluntarily confessed to the crime. The witness Franz Fracz remembered events somewhat differently than that related by the policeman. He deposed that that the policeman had urged Gawenda to confess by assuring him that nothing would happen to him and that he would not even arrest him as three years had elapsed since the commission of the act. The policeman also demanded that Gawenda confirm what he had done to community officials. Only on this assurance, the accused told how he committed the murder and described the spot under the willow trees where he had buried the victim's body. Despite the receipt of this information, a body was never found.
 
Having undertaken a trial, a jury answered the questions put to them below:
 
On the main question of whether Johann Gawenda committed murder, the jury voted yes with 9 votes. The jury was also tasked with deciding whether Franz Gallus gave assistance to the crime of murder. On this question the jury also voted yes with 9 votes. Because of the jury votes, this Court renders a verdict of guilty on March 12, 1884 as given below:
 
Johann Gawenda is found guilty of the murder of Katie Sroka and is sentenced to death by hanging. Franz Gallus is found guilty of the crime of complicity in the murder and is sentenced to ten years of imprisonment augmented with fasting.
 
Gawenda accepted the verdict, saying apathetically: “Do with me what you want.” Gallus however raised a motion to nullify the verdict, but it was denied. Gawenda's death sentence was commuted to 20 years of imprisonment. Both convicts sent repeated requests from the prison to the court asking for inquiries on whether the alleged victim was found, but their requests were in vain.
 
Then in 1885 an event occurred, which eventually proved beyond all doubt the innocence of both accused. This event was the appearance in court of the allegedly murdered Kathie Sroka. The following are the respective court records, which were selected in order to establish the identity of the discovered girl as the allegedly murdered Kathi Sroka.
 
Minutes of May 28, 1885 proceedings drawn from the district courts of the Austro-Hungarian Empire in Dabrowa, Tarnow:
 
Michael Blocho, the council chairman of Radgoszcz, appears and declares that he brought a girl who apparently is identical to the allegedly murdered Katie Sroka. Blocho himself can not testify because he had not known Katie Sroka.
 
Minutes, taken on the same day with the strange girl. A young girl, still of small stature testified to the following:
 
“My name is Kathi Sroka. My father Johann Sroka died in prison because he had poisoned my grandfather; my mother died long ago. I lived with my stepfather, Johann Gawenda, who has married the widow of my father. With Gawenda I fared badly because he abused me repeatedly. When he struck me a few years ago with a strong blow of his fist, I ran away one evening and went to Laurus Gallus. I took only two petticoats, two shirts, and two sheets. The skirt and shirt, which I had received from the Setermus, I left at home. For two months I lived on charity, then I found employment as a maid, working for S. Kopec in Ragienica (1 1/2 miles from Radgoszcz).”
 
Minutes, taken on the same day of farmer Franz Noga. The same testifies:
 
“As I was suspected of the murder of my runaway stepdaughter, Kathi Przesidowka, I searched for her in various villages. After learning an unknown girl was staying in the village of Szarwark, I went there and met the same Kathi Sroka, who I know very well as she had worked for my relative Katherina Setermus.”
 
Because of this the prosecutor requested a judicial commission to investigate and establish the true facts. The results of this commission are set forth in the following record:
 
Minutes of the May 31, 1885 hearing as delegated by the Commission of the District Court in Tarnow:
 
In Radgoszcz, at the 11 a.m. worship service at a local church, the Commission arrived early and began its official activities in the parish church, adjacent to the house of Anton Szalasny. They gave the parish clerk, Johann Bloch, items for delivery to all those who, in the murder case of Johann Gawenda, knew Kathi Sroka personally. These were given in regard to the prosecution's reply of May 30, 1885, ZI. 7339. The Commission gave the same persons mentioned our mission, to announce and publicize a notice in the village to all the persons at all services that anyone who personally knew the allegedly murdered Kathi Sroka to report to the Commission.
 
At the same time they learned from the parish clerk, Johann Bloch that the alleged Kathi Sroka was resident in his home since her discovery in Szarwark and therefore we pressed the same to testify before the Commission, which he did. Soon afterwards, the invited witnesses began following instructions given to them and arrived. They were received individually in the same order they appeared and, in the absence of other witnesses, gave testimony and were interrogated regarding Kathi Sroka. The hearing was in accord with section §163 of the Criminal Procedure.
 
All of these witnesses have confirmed the identity of the presented girl with the Kathi Sroka of whose murder Gallus and Gawenda were convicted. Noteworthy is the following testimony by the allegedly murdered Sroka given on May 31, 1885 in Radgoszcz.
 
“I, Kathi Sroka, an unmarried Roman Catholic, born in Radgoszcz, remember neither my father nor my mother. As far as my memory goes, I was with Marie, the second wife of my father, who subsequently married Johann Gawenda and lived together with him. From this second mother, I had found out that my birth mother was called Katherina Nogo. My father should have been called by his first name, Michael, but he was called by another Christian name, which I do not remember. His name was Sroka, and had a brother, Martin Sroka, in Brzezówka. My father was also from Brzezówka; my mother, however, was from Radgoszcz.”
 
“My father died in prison, where he served time for the poisoning of my maternal grandparents. In which prison he served his sentence, I do not know. The grandfather was a cooper and once when he returned from the city and my grandmother cooked the food, my father, who lived next door, poured something in the food, most likely poison. They both died the same night, while a little boy named Kazimir, probably their son, lived for 24 hours before perishing. The same bodies were dissected and it was said to that the same poison was found in them, at least this is what the uncle of M. Sroka reported, who was present at the autopsy.”
 
“The second mother and Johann Gawenda raised the children of the second mother and my father: Hedwig [Agnes?], who is younger, but taller than I and her younger brother, Joseph. Gawenda also had children: Mary Magdalene, who is dead, and Stanislava. On questioning I have to admit that I do not know whether they have had a youngest son named Adalbert. In the fall it will be the fifth year since I have been away from the Radgoszsz of Gawenda.”
 
“I left because Johann Gawenda often beat us, and expressed that he will not work for other people's children. He also told us to leave. One day before, when he was drinking with his wife, and with Franz Gallus and his wife, he gave me a blow to the head with his fist. I do not know the reason for this. I therefore fled to the neighboring house of the widowed Anna Gallus. Johann Gawenda came after me with a hoe and threatened to kill me, but I laid down on the furnace and covered myself with straw, so that he did not see me. The sons of Gallus told him I was not there.”
 
“The next day I went to R. and remained there for a week with a farmer who lived with his wife and mother. I then went back home to retrieve my scarves, as I did not want Marie Gawenda giving them away as she had done with a shirt and a striped petticoat from Barchend that I left there while I went to S. I was with a landlord, who had a wife and small children, and went with him and his wife to the market in Dabrowa, and I promised the same to find employment. I found, however, that there was no employment there and after staying two days in Dabrowa I obtained employment near R. with S. Kopec. I stayed there up until about four weeks before this year's Easter holidays and then took up work with M. G. in S., where I was recognized by a farmer from R., who brought me here together with the parish clerk and a Jewish woman.”
 
“During all my employment, I told others about my ancestry and my family. Last year before the harvest, a pilgrimage took place in R. People who have been to the church in D. told me that the minister mentioned a girl was missing from R., but I did not know that he was referring to me as it was said that the girl in question was murdered and buried. Because of this story neither my employer nor I knew that I was the missing girl, though we spoke about the girl many times. Nor did I know that I should report myself to the authorities. In regard to Johann Gawenda and Franz Gallus serving a prison sentence for my alleged murder, I only found that out in S. when I was recognized.”
 
Testimony given by the witness is closed. The witness is small in stature and proportioned accordingly in body, feet, and hands to the whole form and only the face and head of the witness are a little large for the form. The witness is older than one would assume by her build. She does not even look like she is 20 years of age and has dark blond hair and gray eyes.
 
Continued on July 31, 1885 at district courts of the Austro-Hungarian Empire in Tarnow.
 
In response to a subpoena, Kathi Sroka gives her recollection pursuant to paragraph 165 of the Criminal Procedure.
 
“Various details concerning my family, which were mentioned at previous hearings, I learned only after my discovery at S., during my stay with the local bailiff in R. For this reason, during my employment with S. Kopec in B. and with M. G. in S., I gave such details no consideration.”
 
After the witness was confronted by Franz Gallus appearing from imprisonment, she testified: “This is Franz Gallus, the stepfather of my stepfather,” and after being confronted by Johann Gawenda, also appearing from imprisonment, she testified: “This is my step-father.”
 
The judicial inquiry is now closed and the closing is made with the observation that when Franz Gallus was presented alone, the witness was asked who he is, and that the same question was asked of the witness in regard to Johann Gawenda.
 
Based on the above results, a retrial was granted and both defendants were acquitted and released from the prison in which they had innocently spent 15 months.
 
The present case is indisputably the most interesting type of case and fortunately among the rarest of criminal justice. It does happen that people are convicted because of false confessions. That the confession was extorted by law enforcement through unlawful means, such as ill-treatment, false pretenses, and the like, is unfortunately not rare. But the fact that a confession to murder is so readily accepted that no attempts are made to determine whether the alleged victim is really dead; that this objective fact is found in no way; and also, the fact that the murder victim lives only a few miles away from the place where two persons were convicted of her murder – these are things that deserve to be recorded in the annals of criminal justice for all time.
 
Particularly noteworthy is the interesting psychological moment when a child of seven[*] (Agnes Sroka) tells the court that she had witnessed a crime which never took place. Has imagination or the action of the police played a role here? Has the policeman prepared witnesses so that he can use the confession of the accused as evidence? Or have third parties acted in the belief that the confession is evidence? It is also important to note the apathy of the principal defendant, who received a death sentence indifferently and gave up the fight against his disastrous fate. Policeman, prosecutor, judge and jury are against him – what else remains for him but to surrender and be subject to fate!
 
Finally, it is noteworthy that a curious accident caused the innocence of the condemned to be brought to light. If there had not been a second farmer under suspicion of murdering his stepdaughter, and he had not made some effort to locate his missing step-daughter, wouldn't the convicted innocents Gawenda and Gallus still be imprisoned for the murder of Katharina Sroka while Katharina Sroka, unaware of their fate, dwelt among the living?
 
The paths of righteousness are unpredictable and Justice is unfortunately all too often completely blind!
 
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[*] The seven-year-old-age of Agnes appears to be incorrect for the following reasons: (1) Agnes reportedly went to work in the spring of 1882 with 15-year-old Hedwig Baran. (2) She was seen wearing a dress that was sewn for Katie when Katie was 15. (3) The source has Katie reporting that she has a Sroka stepsister named Hedwig, who is younger than her, but taller than her. This source presumably meant to say Agnes, but confused her with Hedwig. Hedwig Baran is clearly not a Sroka by name, and the source indicates her only relationship to Agnes is that the two once went to work together. (4) Since Katie reports she does not remember her father, it seems likely that that he was sent to prison before 1870. (He died there in 1875.) For Agnes to have been seven at the time of Katie’s alleged murder, her father must have conceived her in 1872 or 73 during his stay in prison. This appears unlikely.