A It could be described that way. It so happens, however, that one prong of the advance was going due eastward toward Czechoslovakia and the other was going southeastward toward the Austrian border, and that one could come through Nuremberg.
Q On the 5th of April 1943 -- I seem to have forgotten, would you recount again approximately how many miles from Nuernberg the Allied troops were?
A I should say fifty miles.
Q Fifty miles?
A Perhaps five miles either way.
Q Now, ten days later, namely on the 15th of April, how close to Nuremberg were the Allied troops?
A I remember that quite well, because on the 13th the americans troops were within artillery range of Nuremberg, fifteen miles.
Q On that day, namely the 13th of April, 1945, can you remember where you were?
A Yes.
Q Where were you?
A I was just north of Erlangen.
Q Would you say, speaking from what you observed on that day, namely the 13th of April, would you say that Nuremberg was within artillery range of the Allied troops?
A Oh, yes
Q It was ?
A Yes.
Q Now, Lieutenant, what day was Nuremberg officially declared fallen in the dispatches?
A It was on the 20th of April, and the reason I remember that so well is that was Hitler's birthday.
Q Now, in your opinion, having seen what went on here in the city of Nuremberg, how much of the city was actually occupied before the 20th of April, if any?
A Well, Fuerth, where--I entered this area by coming through the town of Fuerth, and on the 17th and 18th I was in Fuerth, and the fighting had passed on beyond me.
Q That was on the 17th?
A That is correct, yes.
Q If at the time you were in Furth and Nurnberg in 1945, during the period you're describing now, if someone had told you that a man was executed three days before the American arrived, what date would you place on that execution?
A Before they arrived in Nurnberg?
Q Yes. Remember that it was a civilian speaking.
A I would say about the 17th.
Q About the 17th of April 1945, is that correct?
A Yes, that is correct.
Q No further question.
THE PRESIDENT: Does counsel wish to cross examine this witness?
DR. GRUBE: I ask to be permitted to put several questions to the witness.
THE PRESIDENT: On behalf of which defendants?
DR. GRUBE: For the defendant Lautz. But I want to say that the matter itself has nothing to do with the defendant Lautz; however, at the time when Nurnberg was occupied. I was in Nurnberg myself and therefore I should like to put several questions in connection with the occupation of Nurnberg.
MR. WOOLEYHAN: Your Honor, since defense counsel's own admission his client is not involved here, I question why the cross-examination is being conducted.
DR. GRUBE: May it please the Tribunal, I believe the question is justified because as is well known, all defendants are charged with conspiracy. Each one of the defendants, therefore, must be interested to see that the case of any other defendant should be clarified beyond all doubt.
THE PRESIDENT: Do I understand then, Dr. Grube, that you concede that the charge of conspiracy would lie in this prosecution?
DR. GRUBE: The prosecution has said, in the written and verbal statements, that all defendants are occused of conspiracy.
THE PRESIDENT: I am quite well aware of the allegations of the indictment, but my question is not that. You understand my question.
do you not?
DR. GRUBE: No, apparently I didn't understand the question.
THB PRESIDENT: I ask you whether you concede that under the jurisdiction of this court, conspiracy will lie against the defendants in this case?
DR. GRUBE: Yes. The charge has been brought; whether that is correct, that is of course another question. But the defendants are, in fact, charged with conspiracy.
THB PRESIDENT: Apparently, you don't understand my question. I am asking what you concede in that respect from legal standpoint? You are an aid to the Court here and I am entitled to an answer to that question.
DR. GRUBE: No, Mr. President. I do not concede that a conspiracy exists or that from a judicial point the possibility exists to sentence for conspiracy. But I have to meet the point of view of the prosecution. If the prosecution states that there is a conspiracy, to be sure, I have to be permitted to put questions in favor of the other defendants, which contribute towards helping them.
THE PRESIDENT: You may proceed with your examination.
CROSS EXAMINATION BY DR. GRUBE:
Q Witness, can you remember that on the 16th of April, already on noon of that day, the American troops were standing in Erlenstegen, a suburb of Nurnberg.
A I do not remember that myself. I was not in that part of Nurnberg.
Q Could you perhaps remember that during the night, from the 16th to the 17th of April, the entire railroad dam which runs through Erlenstegen had already been occupied by American troops and tanks?
A I can't discuss with any authority anything that happened in Erlenstegen because I simply was not there. I don't know.
Q Perhaps it is known to you that the morning of the 17th of April, the southern suburbs of Nurnberg were already taken by American troops and that on the evening of the 17th of April, Nurnberg was almost completely surrounded and that, in such a way, that only the road to Schwabach was still open?
MR. WOOLEYHAN: Your Honor, this has been a lecture, not an examination. The witness has said none of these things. I object to the question.
THE PRESIDENT: I don't see why you should object.
MR. WOOLEYHAN: I object to it for purposes of expedition; on no other grounds.
THE PRESIDENT: Let him ask the question and let it be answered. It certainly will not help him and it certainly will help you.
THE WITNESS: I must repeat that I don't know.
BY DR. GRUBE:
Q Is it known to you that already on the 18th of April, the entire southern half of Nurnberg, that is south of the Pegnitz, was completely taken by American troops?
A I know that from the 15th until the 20th, fighting was going on in and around Nurnberg. I know that artillery was being fired into Nurnberg on those five days, and I know that Nurnberg fell officially on the 20th. Aside from that, I cannot make myself any clearer.
Q What day of the week was the 20th.
A I believe it was Thursday, but I am not certain. I am not sure of that.
Q Thank you.
DR. KOESSL: For the defendant Oeschey, in substitution of Dr. Schubert. I'd like to put only one question.
CROSS EXAMINATION BY DR. KOESSL:
Q Lieutenant, in your training as an officer, were you ever told that the penalty for treason depends on the proximity of the enemy and the situation in which your own troops find themselves at the time?
THE PRESIDENT: I don't see how this witness, who makes no claim of being an expert on legal matters, should be required to answer that question, as to the proper interpretation of high treason.
DR. KOESSL: May it please the Court, the court martials were of a military type, even the civilian court martials, and in Germany, all military court matters were also taught to officers in the course of their training.
MR. WOOLEYHAN: Your Honor, just for the purposes of the record. I object to gratuitous proof of this nature with respect to the Standgericht -- the court martial with the military. I object to that statement, Your Honor; the proof is to the contrary.
DR. KOESSL: But the civilian court martials were only established where immediate threat by the enemy existed and the Volkssturm was part of the fighting forces.
MR. WOOLEYHAN: I do beg the Court to put this back on a normal channel; either have testimony or edit this now; not lectures.
THE PRESIDENT: If the witness is able to answer the question, he may answer.
A. I am afraid I will have to ask for the question to be repeated; I am not sure what I have been asked.
In the course of your training as an officer, were you ever taught that the amount of penalty for high treason -- for treason -- defended upon the distance of the fighting troops, and on the conditions, that is, the chance for vistory or the impossibility?
A. No, I never had been taught anything like that.
DR. KOESSL: Thank you.
MR. WOOLEYHAN: I have no further questions.
THE PRESIDENT: Is there any farther cross examination? Apparently not. The witness may be excused.
MR. WOOLEYHAN: To tie in a few dates that were just testified to, I am wondering if the Tribunal will refer to several exhibits that are already in evidence, merely by way of making the record complete.
THE PRESIDENT: That would be proper.
MR. WOOLEYHAN: On the 16th of February, 1945 the law authorizing these civilian courts martials was published; that is found on page 11 of Document Book II. On the 5th of April, 1945, the Montgelas case was decided.
THE PRESIDENT: How do you spell that name?
MR. WOOLEYHAN: M-o-n-t-g-e-l-a-s. That is found in Document Book III-C, Document NG-513, Exhibit 150.
THE PRESIDENT: What exhibit number was that?
MR. WOOLEYHAN: One hundred fifty, Your Honor. Three days before that, on the 2nd of April, 1945, the Nurnberg Civilian Courts Martial was organized by Gauleiter Holz, with the defendant Oeschey as Presiding Judge, which is found in Exhibit 148, Document Book III-C, Document NG-550.
THE PRESIDENT: Have you the exhibit number of that?
MR. WOLLEYHAN: Yes, Your Honor, that is Exhibit 148. On the 15th of April, 1945, the Gottfried case, which was described on the stand this morning, was decided; that is already in evidence, in Document Book 111-B Supplement, Exhibit 494, Document NG-952.
Your Honors, may we ask the Court to rise for the morning recess at this time; we will be able to proceed in about fifteen minutes.
THE PRESIDENT: This is the usual time for the recess, so the motion will be granted.
(A recess was taken.)
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again in session.
DR. SCHUBERT (for defendant Oeschey: May it please the Court , I have just found out that when I was not present, a witness was examined who concerned the defendant Oeschey. I would like to make the remark that I had not heard about this witness being called, since an announcement about the questioning of the witness did not appear not has it appeared so far on the notice board of the Defense. I will, however, not object to the testimony of the witness because the witness was announced 24 hours in advance . According to what was told me about the examination, and the testimony of the witness by my colleagues, the testimony of this witness seamed to be of miror importance. I only want to explain for what reason, I, the Defense Counsel, who was actually concerned was not present during the examination of this witness.
MR. LaFOLLETTE: Your Honors, please, the prosecution is very sorry; that is again, is one of these things. But we complied with the rule by sending the notice to the Defense Center last week, more than 24 hours in advance, and if it was not put on the board it was one of those inadvertent things that happens in the Defense Center. As I recall, that notice went down probably Thursday afternoon.
The Prosecution would now like to offer prosecution document No. NG907. This is the trial of certain members of the order of the Catholic Sisterhood which operated the Untermarchtal convent. It was tried before the Special Court, Stuttgart, at Untermarchtal, with the defendant Cuhorst presiding. The verdict; Sister Felicia was given two years imprisonment; The charge was the violation of the rationing provisions.
Sister Fintana, one year and six months; Mother Euphenia, four months in prison. Various other members of the Sisterhood were acquitted. The Buergermeister, Anton Stitzelberger, of Untermarchtal, was given three years in prison.
The Prosecution assumes that there are adequate copies of this document available for the members of the Bench. Are there copies for the Interpreters?
(No response)
I have some German copies here for the Interpreters.
(The copies were delivered to the Interpreters.)
THE PRESIDENT: In what document book do you suggest placing these?
MR. LaFOLLETTE: They should be put in supplement 3-B, Your Honor.
And, here are copies for the German and English Court Reporters.
We are a little late in the proceedings for me to make too many complaints, but we had these documents sent down to the Secretary General, and I am getting a little worn out with having to carry them into the Court for the Interpreters, and everybody. I hope some one down there on the ball some time before we start the defense case.
I may say that this exhibit will be followed by document NG 706 which contains certain affidavits which are revealing with reference to the conduct of this trial.
THE PRESIDENT: Please raise your voice, it is not coming through distinctly.
JUDGE BRAND: That is exhibit 497, is it?
MR. LaFOLLETTE: It will be 497, Your Honor.
DR. DOETZER: (for defendant Cuhorst): May it please the Court, that document which the prosecution has submitted or introduced consists of the certified copy of a sentence of the Special Court of Stuttgart at which the defendant Cuhorst was the presiding judge, and of another not certified copy of a clemency plea of the lawyer Wever which is supposed to have been addressed to the Oberstaatsanwalt at the District Court at Stuttgart.
As far as the Prosecution submits the certified copy of the sentence, I do not want to voice any misgivings. In as far as we are concerned with the clemency plea, I do have to raise objections, since this clemency plea was not certified, and, moreover, one cannot determine whether this clemency plea should be regarded as a captured document.
MR. LaFOLLETTE: I am assuming that that is a formal objection to the clemency plea, and no objection to the balance of the document. I call the Court's attention to the fact that I do not claim that this was necessarily a captured document in the sense we previously used it, this clemency plea. I do call the Court's attention to the fact that we have had ample evidence here of the burning of the records of Stuttgart and the distribution there being bombed out. This is the best evidence which we have available, the clemency plea. I am not very deeply concerned about it; if the Court decides they will not accept the clemency plea, I would like to offer documents from the balance of it, which is submitted as Prosecution's exhibit 497.
THE PRESIDENT: For the convenience of the Court, how many pages of this document will be admissible?
MR. LaFOLLETTE: The last two pages, Your Honor, and the last two or three pages which were signed by the man, Weber.
THE PRESIDENT: Do you mean to eliminate those or to include them? I have not looked at the document, as yet.
MR. LaFOLLETTE: Beginning with page 59 and through page 61, is that part which constituted the clemency.
The balance of the document is the... the first fifty-eight pages... there is no objection to them, your Honor.
THE PRESIDENT: ... We are having difficulty...
MR. LAFOLLETTE: May the document be received in evidence as Prosecution Exhibit No. 497, with the understanding that the pages numbered- from 59 through to the balance of the document, - with the exception, of course, of the certificate of translation, - shall not be considered as in evidence?
THE PRESIDENT: It will be so received in evidence.
MR. LAFOLLETTE: As Prosecution Exhibit 498, the prosecution desires to introduce Document 706. This document consists of a letter by Mother Euphemia Burger, Mother Superior of the Convent Untermarchtal, dated on the 17th of January 1947, which she subsequently identified in a sworn affidavit and stated that the facts contained in that letter were true. The affidavit was sworn to on the 4th day of May 1947. It also consists of two letters signed by Josef Ersing, the first on the 21st of January 1947, and the second on the 22nd of January 1947. On the 3rd day of May 1947, Josef Ersing swore that he had signed these letters, that he had re-examined the original letters, and that the facts therein stated were true. The document, therefore, consists of the original letters, both subsequently sworn to. I am not going to read these letters extensively but I ask the Court to read them in connection with Exhibit 497 because they contain statements which indicate that these witnesses clearly felt that the whole trial of this convent was conducted as a subterfuge, to cover up the confiscation of the property of this convent, which had taken place earlier under an order of the Gestapo. The prosecution offers Document NG-706as Prosecution Exhibit 498.
THE PRESIDENT: The Document will be received in evidence. Where will you place this in the Document Book?
MR. LAFOLLETTE: I will place it in Supplement 3-B, immediately following Exhibit 497.
The next, separate, document will be Document NG-851. Perhaps defense counsel who have particular defendants who were members of the People's Court, or who were members of the Ministry, would like to look at this original exhibit. NG-851 isan article by Dr. Arno Weimann on the subject, "Politics and the Criminal Law in the Third Reich," with a statement by Dr. Weimann that the document, consisting of twenty eight pages, conforms with the previous... with the scientific treatise written by him - a larger one - on the same subject. If you don't have copies I can send some up.
DR. KUBUSCHOK: I object to the using of this document. I don't know, really, under which category this document is supposed to come. This can not be a public announcement by Dr. Weimann... a public speech because publication in the press, or in any other way, by Dr. Weimann, would, not be accepted, would not be permitted, because Dr. Weimann because of his pro-Nazi action - was attacked by the press very severely. If it was composed especially for the purpose of the prosecution then it would have to contain some kind, of an affidavit, some kind of a certification... Then the question would arise as to whether, for political questions, Dr. Weimann - particularly considering the fact that the press of today is fighting him - is a suitable expert on political questions. In its present form I believe the document cannot be accepted, in evidence.
MR. LAFOLLETTE: Your Honor, please, we have done a lot of work having this translated...
JUDGE BRAND: When was it written?
MR. LAFOLLETTE: It was written in February 1947. That is, the certificate was written in 1947. I will be very frank. I believe the objection is sound. I assumed that this thing was sworn to. I won't throw it on the floor... I will just withdraw it.
As Prosecution Exhibit 499 the Prosecution offers NG-1395. This is a sworn statement by General Walter Warlimont of the German Wehrmacht. It states, on oath, - "that I have compiled, the above survey to my best knowledge from memory, that I have based it on facts known to me personally, and that I have been, from 1 January 1942 until 6 September 1944, Deputy Chief of the Armed Forces Operational Staff."
It is sworn to on the 7th of May 1947, in Allendorf, Germany, before Peter Beauvais, who is duly authorized to administer oaths. I consider this document of importance on the whole subject matter. We are considering particularly the relationship between the increased intensity of criminal prosecutions and sentences, and the losses of the German Armed Forces, and in manpower, and territory beginning with the surrender at Stalingrad. This separation of figures by General Warlimont covers the area from January to March 1943, to April 1945. I will now offer as Prosecution Exhibit No. 499, Document NG-1395.
THE PRESIDENT: Where do you place this document?
MR. LAFOLLETTE: I will place this document in Supplement Book 1, if your Honor please. In this connection I think it is proper for me to call to the Court's attention that the distribution of punishment in Germany for 100,000 convictions (transcript pages 2247 and 2248 in the English Transcript -- Exhibit 249) contains a list of tables of punishment and death sentences during this same period. The Court may, of course, draw what inferences it chooses, but I feel I am justified, in calling this part of the record to the Court's attention since it is in evidence.
THE PRESIDENT: ... Pages 2247 and 2248 -- does that refer to pages of the Transcript?
MR. LAFOLLETTE: Yes, your Honor... Did the Court's come through?... Yes, your Honor, that refers to pages of the Transcript.
At this time I will ask Mr. King to continue with the presentation of the documents.
THE PRESIDENT: Exhibit 499, being NG-1395, is admitted in evidence.
MR. KING: May I first revert back to Friday's session? Exhibit 496 was offered, and then withdrawn, or received conditionally; I am not at this moment precisely sure of its status. In any event, the objection made by defense counsel went to the deficiency in the affidavit which was that a statement appended to the exhibit was signed, by Mr. Einstein but it was not sworn to, and the defense objected to the the lack of a jurat. That jurat has now been supplied, and while copies of the document in the hands of defense counsel, and for that matter before the Court, will not show the jurat, it does, of course, clearly show on the exhibit.
It is document 1081, and it has now been sworn to before one Peter Beauvis on the 14th of May 1947. The Court will recall that in introducing the document, Mr. Wooleyhan suggested that it be placed in document book III-B supplement.
We again offer the document NG-1081 as Exhibit 496, and I will show it to defense counsel at this time, prior to handing it up to the Secretary General.
Last week, during the introduction of the documents contained in the document book Supplement III-A -
DR. SCHUBERT: No objection.
MR. KING: I am informed that defense counsel has no objection to the document Exhibit 496, Your Honor.
THE PRESIDENT: Whatever conditions were placed upon the admission of that document at the time it was offered will now be removed and it is received without conditions.
MR. KING: Last week, in connection with the introduction of the documents in the book supplement III-A, we informed the Court that there were two additional documents which would be offered at a later date. One of them concerned the document to be found, at page 81. There appears, beginning on page 81, a document which is identified as NG-678. In the first place, that document was inadvertently placed there, and I told the Court that it would be substituted by another document which also bore the identification of NG-678. I must tell the Court at this time that that document will not be offered, so that the Court and defense counsel will disregard the page numbers between and including 81 and 85 of the document book Supplement III-A.
THE PRESIDENT: Were any documents admitted in evidence between those pages?
MR. KING: No, that is one document.
I will not go through the formality of placing in the document book the correct document, which we do not such to offer.
In connection with the book III-A, we would at this time like to introduce, as Exhibit No. 500, the document NG-744; which appears beginning on page 117 of the document book Supplement III-A. This is a document dated the 7th of August, 1942 or 1943 -- one moment -- 1942. It is a letter signed by Dr. Freisler and is addressed to the Presidents of the District Courts of Appeal and to the General Public Prosecutors at the District Courts of Appeal, also for the information of the Presidents of the Reich Supreme Court and of the People's Court, and of the Chief Public Prosecutors at the Reich Supreme Court and the People's Court.
It concerns the enforcement of the law against Poles and Jews, the ordinance concerning which is dated 4 December 1941. Apparently having had some experience in the operation of that ordinance, it became necessary to issue instructions and interpretations based on the experience, and this letter is for that purpose.
Without further reading or explanation of the document, we offer it as Exhibit 500.
THE PRESIDENT: The document will be received in evidence.
MR. KING: In connection with the introduction of the next document, may I inquire of the Secretary General if he has English and German copies of the document 2006-PS?
JUDGE BRAND: May I interrupt you a moment?
THE SECRETARY GENERAL: Only English, sir.
JUDGE BRAND: On the first page of Exhibit 500 there is one word which is illegible.
The paragraph marked "1", the last line -- how does it read, please? "The Pole or Jew must not appear as a witness against the German during the ..."
MR. KING: May I recall from the representative of the Secretary General the original of the document NG-744?
(The document was returned)
That sentence should read: "If, however, such a testimony cannot be evaded, the Pole or Jew must not appear as a witness against the German during the main trial; he must always be interrogated by a judge", etc.
JUDGE BRAND: Thank you.
MR. KING: The next exhibit, 501, will be the document 2006-PS, which has been distributed as a loose document, and I suggest that it be placed in document book II. The document 2006-PS is a decree from the Reichsgesetzblatt, 1934, Part I, page 75.
The principal change accomplished by the decree or statute is that the Reich governors are placed under the administrative supervision of the Reich Ministry of Interior, as is apparent from Article III.
Article IV states that the Reich governor may issue now constitutional laws. Article V states that the Reich Minister of Interior may administer the necessary legal and administrative regulations for executions of the law.
We offer the document 2006-PS as Exhibit 501.
THE PRESIDENT: The document may be admitted in evidence. I would like to inquire, however, whether this was an enactment of the Reichstag.
MR. KING: It does not appear --
THE PRESIDENT: One moment, please. May I inquire as to whether this was an enactment of the Reichstag?
MR. KING: It does not appear on the face of the document that it was an official act resulting from the democratic process in the Reichstag.
THE PRESIDENT: I call your attention to the second paragraph of the document.
MR. KING: Yes, the second paragraph does so indicate. I think perhaps what I stated at first may be the true situation, but it is a matter of argument which I don't believe we should go into at this time unless Dr. Brieger has some comments on this.
DR. BRIEGER: Your Honor, a number of complaints are being handed to me just now regarding, the translation of this basic law, and in this short period available to me I cannot test all of them, as to whether they are correct. Therefore I am merely at this moment reporting these corrections.
MR. KING: May I say one word before Dr. Brieger proceeds. While it is possible that the translation is not correct, according to Dr. Brieger and his colleagues, I think it is a matter which we need not take up here, since it comes under the general category of faulty translations, and we can handle this as we are and will be handling other faulty translations, and I don't believe it is necessary to review them here since they will have to be reviewed before the ex office committee that is going to deal with translations.
DR. BRIEGER: In regard to this law I only wanted to take up a different attitude, because it is a very basic law. I even could say "the" basic law from the year 1933 from which everything else developed, and therefore my colleagues as well as I are particularly interested in having all of the mistakes in regard to this law clarified in time, or, rather immediately, assuming the agreement of the Court, I therefore take the liberty of raising the objections right now in regard to the translation.
Line 1, after "enacted" you have to insert "unanimously" in accordance with the German, which says "einstimmig,", unanimous.
In line 2 it should say instead of "vote", "approval", for the German text says "Zustimmung".
Then something which is very fundamental, because the German text is simply misunderstood here. They are talking about the Reichstag, while it should say Reichsrat, which is an entirely different agency.
Line 3, after "constitution" is to be inserted "for laws amending the Constitution", for the original says "fuer verfassungsaendernde Gesetzgebung."
Article III, line 1, I recommend that here after the word "Governor" in brackets the German term should be inserted, Reichstatthalter, for the position of the Reichstatthalter was not the same one as that of a governor in the United States. There was some similarity, but we can on no account say that the two terms are identical, as is evident from the fact that the governor in the United States is elected, while the Reichstatthalter was appointed.
Article V, line 1, I recommend instead of using the term "administer", the term "issue" because the German original itself says "erlassen." That is all.
JUDGE BRAND: In view of the statement which counsel for the defense has made as to the fundamental importance of this document, I should like to say that the references to lines in which it is claimed there are errors was such that it was impossible for me to follow, and it would be a very great convenience if a complete corrected copy, assuming that correction is necessary, should be presented to us, as you have indicated, at an early date.