Q Did you find out that sentences were sent to you which were contrary to international law?
A I do not know international law well enough in order to be able to judge this objectively. However, in each case I read the sentences very carefully, and I could not find any such violation, because otherwise I would immediately have reported it to my superior. However, among the sentences there were a number which I found too severe, even though I did not consider them contrary to international law.
Q That is your statement which you made in your declaration and your repeated statement, that according to your opinion the sentences were not contrary to international law, you maintain?
A The sentences which I saw here did in no way violate international law. I only regretted that among those who had been convicted there were, in part, people who took part in the resistance movement and sabotage acts to a lesser extent, and among these persons that it would not have been necessary to levy a death sentence, possibly, but one might have pronounced a some what more lenient sentence.
Q Witness, but you probably must be in agreement with me that it was a question which was up to the judge who, as a result of the trial, could reach the conclusion.
A It was a question of the extent of the penalty, in which the judge in each case, according to his opinion, could judge in a more lenient or severe way. Cases in which there should have been an acquittal in which the sentence was a violation of the law, I did not see.
Q Did you see any cases in which sentences had a form -
A That cannot be seen from the opinion. The sentence as such was in a form always as it should have been. How the trial was carried on, that I do not know.
Q Now I am going over to another point. In your statement you said several times that the Oberreichsanwalt repeatedly urged you to execute the sentences correctly.
A Yes.
Q First a question. By "Oberreichsanwalt" do you mean the office of the Oberreichsanwalt or Oberreichsanwalt Lautz personally?
A The office of the Oberreichsanwalt, not the Oberreichsanwalt personally. It is possible that one or the other of these urgent letters were signed personally by Oberreichsanwalt Lautz. That, however, I cannot remember. The majority must have been written by or signed by officials of his office.
Q You say the majority. Do you have any reason or any way in which you can find out whether the majority of these letters were not from the Oberreichsanwalt, but only from his employees?
A That is only a subjective supposition, but every one of these letters was signed, had a signature affixed. For instance, I remember the signature of Reichsanwalt Weiersberg.
Q Did you ever see a letter in regard to execution of sentences which was signed by Oberreichsanwalt Lautz?
A I do not know. It is possible. I don't remember.
Q Can you say something as to whether the prosecution Munich was called up by Lautz?
A By the defendant Lautz? Never.
Q Never?
AAt this time a telephone connection with the Oberreichsanwalt was hardly possible any more. It is possible that the first time such telephone calls took place -- if I said so in my statement at the time. Now too much time has passed. I cannot remember whether telephone calls took place or whether there were only telegrams. But what I stated at that time, half a year after the event, that I did according to the best of my memory.
Q But it is correct Lautz himself did not call by telephone?
A I never telephoned with Mr. Lautz and I did not meet him personally.
Q You just mentioned that the telephone connection had been interrupted.
A Yes.
Q The teletype must have been interrupted, too?
A I do not believe so. At least there was still a teletype connection of the Gestapo and the police. Moreover, there was the normal way about sending a telegram.
Q In your statement you say that a representative of the Reich Ministry of Justice had appeared in Munich and had urged that the sentences should be executed?
A Yes. That was Ministerialrat, Ministerial Counsellor Altmaier of the Ministry of Justice. He was accompanied at the time by Ministerial Counsellor von Ammon, who came to Munich, however not in this matter, but in another matter. I wasn't concerned with the case he came to Munich and I cannot remember what it was, either.
Q Witness, if the Prosecution received an order for the execution of a sentence, what was the wording of this request, this order?
A It is difficult for me to remember the exact wording. I shall try to reconstruct it from my memory. It must have been something like this, just about. I request to have the attached sentence of the People's Court of that and that date against so and so to have it executed and the accompanying opinion returned to this office again. In case of a request for a reopening of the case I ask an immediate report or something like that.
Q Witness, can you remember that in these orders for execution of the Ministry of Justice -
A Oberreichsanwalt -
Q Just a moment, witness. The Oberreichsanwalt transferred the denial of the clemency appeal to you and a copy of the order for execution.
A No, just a moment. He referred the statement of the Minister of Justice, that the sentence is to be executed, that no pardon will be granted. He handed it to us directly, not via the Ministry of Justice.
Q The order for execution of the Minister of Justice in People's Court sentences was thus not sent to you?
AAt the moment I cannot say that with certainty any more, how the statements of the Ministry of Justice were worded. It is possible that the denial of the pardon also contained a sentence, I request you to execute the sentence with the greatest of speed. It is also possible that sentence was written only in the request of the Oberreichsanwalt to execute the sentence.
Q Witness, you probably also executed sentences for or got orders from the Ministry of Justice in matters which were not from the People's Court.
A The Reich ministry of Justice never gave orders for execution, but in every case the Prosecution had to carry out the sentence. The sentence, of course, was accompanied by the declaration of the Minister that he did not grant a pardon.
Q Witness, may I show you a document which the Prosecution has already introduced, NG 596, Exhibit 137. It is in Book 3-B. It is a letter from the Reich Minister of Justice of 7 March, 1942, and in the German Document Book 3-B it is on Page 80.
A Yes, I now recall that these decisions of the Minister of Justice were in each case sent to us, together with the rest, by the Oberreichsanwalt. These are the exact words. I now recall this way of wording it.
Q Witness, read to the Court the paragraph which has the actual request for execution.
A I request with the greatest speed because of the execution of the sentence, according to the direction of Paragraph 453 and 454, Code of Criminal Procedure in the formulation of the letter of 28 June 1935, Reichgesetzblatt 1, Page 844-849, according to the regulations in the circular order decree of 19 February 1939, No. 4,417, III-A, 318.89 and of the 12 June 1940, 4,417, 647, 40, to instigate the necessary steps. The execution has to be referred to the Executor Reichert in Munich.
If the corpse is to be handed over to an institute according to No. 39 of the circular decree of 19 February 1939, the Anatomical Institute of Berlin has to be taken into consideration.
Q You have thus found out that the Ministry of Justice urged the greatest of speed?
A Yes.
Q Could you say that this was true also of the other case, that was the usual form?
A Yes. Yes, the Ministry of Justice, as far as I remember, desired that as few as possible people who had been condemned to death should remain in the present. Therefore it urged the characteristic execution if there was no pardon.
DR. GRUBE: Thank you. I have no further questions.
BY DR. KUBOSCHOK:
Q Witness, since when do you know Mr. von Ammon?
A I know Herr von Ammon at the latest since the beginning of 1929. At that time we were both assessors and associates in the Bavarian Ministry of Justice.
Q In March 1944, did you meet Mr. von Ammon in Munich?
A Sir, you're mistaken in the year. It was in 1945, and first in January 1945 when together Mr. Altmaier he came to Munich.
Q That is correct. At that time, did you entrust Mr. von Ammon with your saving acts which you explained in your affidavit and which was in regard to the convicted prisoners?
A I entrusted him with it, but I don't think I did so already in January when Herr Altmaier came, but somewhat later when he came as Commisioner of the Reich Minister of Justice and was in Fuerstenfeldbruck. At that time, I met him in a cellar way in the Munich Palace of Justice, and I took him aside and asked him, by referring to our old acquaintanceship, to help me. I told him that about 130 condemned persons were in Munich; that I wanted to prevent these executions at any price; and that I asked him to help me because naturally I was risking a great deal in doing so at the time. I asked him if he should in this matter receive any report from Berlin that there was some trace of this matter/ that they were following it up-- that he should warn me.
Q Was Mr. von Ammon in agreement with you?
A He became very much frightened. He probably got scared however, he was in agreement, and he was quiet about the matter.
Q Did you have confidence in him in this matter? Did you entrust this matter to him because of the knowledge of his entire personality--you knew him as a person who thinks in a humane manner and therefore thought he would support you in this matter?
A Yes. I can say the following in explanation of this: I had not seen von Ammen for 15 years. I did not know how during in these national socialist surrounding of the Reich Minister of Justice, how he developed, so in January, I was at first rather careful. But I noticed, according to his entire manner, that he was still the same old fellow and that obviously he had informed Ministerial Counsellor Altmaier about me so that he would not give an unfavorable report about me in Berlin.
Therefore, I had enough to tell him this matter.
Q Were the contents of the discussion which you have just described, was it dangerous for you and von Ammon--even in danger of your life--of it became known to the Minister of Justice?
A This question, I can with a good conscience answer "Yes". At that time all the people we knew about this matter risked a great deal.
Q You mentioned in your affidavit the letters and belonging of the NN-prisoners, and you state that these were not given to the relatives when the people died. Does this means that this belonging were supposed to be destroyed or does this mean only keeping in reserve within the meaning of the entire decree in order to avoid that the execution should become known?
A I do not know this decree, I never saw it, And as far as I was infromed, the letters were supposed to be kept until the end of the war. But I do not know that exactly. But I suppose that in the inevitable collapse, all this material at the People's Court would be destroyed.
Q Thank you.
CROSS EXAMINATION BY DR. SCHILF: (for the defendant Dr. Mettgenberg*)
Q Witness, the affidavit which was submitted also contained an appendix. This supplement in the same date, that is the 15th of July 1945; Munich. For purpose of clarification, I only want to ask-because you said that you wrote this statement unsolicited--what the first word in the supplement means: "as requested."
A It was as follows: I told an american Colonel Krauss at that time-- I gave to this Colonel at first this statement without the supplement. Later on, I spoke with Minister President Hoegner and asked him wether I should make this matter with the letters public. I may tell you the reason why I hesitated. The letters were very sad and I wanted to hand them over.
However I wanted to avoid the impression that I wanted to put myself in a favorable position by using the fare well letters of the prisoners for that purpose. I told that to Minister President Hoegner and the now Minister President Ehard, and both of them told me that I should make them Public. I then told that to Colonel Krauss, the American Colonel, and he told me that under all circumstances I should put it down in writing.
I may also say the following in regard to that: The original letters have been destroyed. A part of these letters, which I secretly partly in the office copied from my files--on the next day, they were supposed to be forwarded to the Oberreichsanwalt. On this day, there was an air raid and a fire in the Palace of Justice, by which especially this part of the letters which were supposed to be handed ever at that time were burnt.
I made the copies during the night, in as far as I could not complete them in the office, and partly dictated then at night to my wife because she was a better stenographer than I. These copies which I then kept hidden, I have then still with me even today.
Q. In your statement in the text which I have before me on page 3, it is page 177 in the German document book VII-A, page 148 in the English, you say, Herr Ministerialrat among other things, you said the following: (I quote) "It could be seen from the copies of the sentences which the Oberreichsanwalt had as usual sent us with the request to return then immediately--" I omit the intermediate sentence--" so that the sentences definitely did not violate international law even if they were in some cases very severe.
As far as women were among those who had been sentenced to death a request for execution Was never submitted."
Witness, I want to ask you, the context of the sentences leads me to ask whether in the case of women, these were also NN-prisoners?
A. I cannot remember that any more; however, I believe that there were women among those who had been sentenced, and from that, I concluded that these women would be pardoned. At that time, I thought "Thank God, at least women are not executed." I don't know but that was my impression at the time.
Q. From the collection of letters, perhaps you can still reconstruct whether women were among there too?
A. No, no women among these people.
Q. I have a further question. On page 180 in the German -
MR. KING: I wonder if the answer to the last question night be repeated. What was the witness' answer to the question that he didn't know whether or not there were women among the NN-prisoners or there were not any women?
THE WITNESS: Among those sentenced to death, as far as I remember, there were some women, but not among the prisoners who were handed over to us for execution. Among the sentences, there were some women enumerated, as far as I remember, but these were never handed over to us for execution. I do not know where they were kept as prisoners, and I had hoped that their pardon or at least nonexecution of the death sentence would result.
BY DR. SCHILF:
Q. A further question. On page 180 of the German text of the document, you made the following statement:
"The sentences, when finally after those who had been condemned arrived, the execution seemed unavoidable; it could be avoided; that was between the meantime, the beginning of April 1945; that the condemned persons in the report, via the General State, the General Public Prosecutor to the Reich Ministry of Justice made the suggestion, the seemingly pious usggestion to have the candidates for death who were French and Belgian NN prisoners to exchange them against members of the Werwolves organization." Ministerial Counselor, I do not know whether the Court knows what the expression "Werwolves" means, and I would like you to make a statement to the effect especially in answer to the question, whether the Werwolves were similar to the Belgian and French partisans.
AAt this time of the collapse the party made propaganda for sabotage acts in the occupied territories; so-called Werwolves were supposed to do these acts; one could call them a type of partisan, but at that time I made the suggestion not in order to point out a similarity, but only to have an excuse not to execute the sentences; at that time I saw no other possibility any more, and this counsel was given to me first as a joke almost, and I handed it on because I was counting with having the Munich General Public Prosecutor, who was known to have limited mental abilities, that he would fall for this suggestion.
Q In your statement, however, you also mentioned the Oberlandegerirchtspresident.
AAt that time the General Public Prosecutor Herb; the Oberlandesgerichtspresident told me that he might have seen through this game, but at this moment he did not want to undertake anything more.
DR. SCHILF: I have no further questions, Your Honor.
BY DR. DOETZER: (Attorney for Defendant Nebelung)
Q May it please the Court, I ask for permission to continue the cross examination. Ministerialrat, I have only a few questions. In your affidavit you mentioned that the people's Court during a certain period had trials in Donauwoerth against so-called NN prisoners, Nacht and Nebel prisoners.
Were you ever present during such a trial at the People's Court?
A Never in my life.
Q Do you know which Senate or division of the People's Court held the trials in Donauwoerth?
A No.
Q Do you know which senate was competent for NN prisoners altogether?
A No.
Q About that you don't remember anything?
A No.
DR. DOETZER: Thank you very much.
THE PRESIDENT: Is there any further cross examination on the part of any of the Defense Counsel? If not, have you some redirect examination?
BY MR. KING:
REDIRECT EXAMINATION
Q Just very short, your Honor. Did I understand you correctly in your answer to a question on cross examination whether or not you were, shall we say, experienced in international Law? I thought you answered that question, "no", you were not; was my understanding correct?
A No. As a student I interested myself a little bit in international law in the same way as today I am also dealing somewhat with international law cases, but I did not have any specialized knowledge.
Q I see. Did you apply your answer regarding the international law question to the Nacht and Nebel cases which you examined?
A Yes; on the cases I did not see in which questions of international law would have played a role, played a part.
Q In other words, in the Nacht and Nebel cases.
A May I correct one thing. It is possible that occasionally other foreign convicts had to be executed, condemned persons had to be executed, but under points of view of international law these sentences which were against partisans and members of resistance movements in France and Belgium, I did not remember them as such; only those I regarded as cases coming under the international law.
Q In applying your standard of non-violation of international law to the NN cases, what point in the Nacht and Nebel program did you consider?
A I do'not know the program, and I cannot judge what in this NN decree was applicable from the point of view of international law and which was contrary to international law. I only examined the sentences as to whether they were handed down because of acts according to which death sentences should be handed down according to military law; the general NN decree of Hitler and individual decrees of the Ministry of Justice I did not know; I only had the sentences of the People's Court in front, before me, and I read them under the point of view trying to find out what did those people do and is a death sentence admissible here. I have to say in these sentences it regularly occurred that not only the matters which spoke against the defendants but also what spoke for them had been cited. The result, however, was in spite of the extenuating circumstances, the sentences were a death sentence; for example, at the conclusion of a sentence there was a sentence particularly like this: In spite of the recognized fact that the defendant acted out of love for his country, according to the hard military law, the death sentence has to be pronounced.
Q Did you notice in your examination of these case files any indication that the defendants tried before the People's Court were denied defense counsel for instance, or did that matter not concern you when you were examining the cases? Perhaps the question contains two questions, but let me put them separately. In examining the case files which came from the People's Court, did you look to such things as whether or not the witness was permitted, whether or not the accused was permitted defense counsel?
A I never did see the actual files, as I said already at the beginning of my testimony. However, I believe that I remember that the Oberreichsanwalt stated in each case who acted as defense counsel and who could act as defense counsel for the defendant. I had the definite impression that in each and every case there were defense counsel appointed.
Q Did you gather any impression as to whether or not the accused were permitted witnesses in the cases which you examined?
A I do not believe that the defendants in Donauwoerth and Bayern were allowed to have witnesses examined; the witnesses must have been in Belgium and France and other countries of the defendants. I only was under the impression that those things which were actually mentioned in the sentences about the offenses committed by the defendant, that they had actually committed these acts, but defense witnesses were for instance character witnesses could not be examined.
Q So that the ultimate fact of whether or not the acts charged were committed or not, you know from your examination of the cases were not established or disapproved by witnesses.
A I do not know any more whether a confession of the defendants was expressly cited in the sentences, however I was under the impression that the actual findings of the sentences, especially of all the details, had been mentioned, were either based upon testimony of witnesses or on direct confessions. When I read the sentences I had no doubts as to the actual correctness of the facts, only as I already mentioned I sometimes felt that the sentence was somewhat severe. The thought that these sentences were pronounced without any sound basis, that idea never came to me. The actual facts in the case, the sentences sounded convincing, and also from farewell letters I occasionally saw that the defendants did not regard themselves as guilty in the meaning of the law; on the contrary they were proud that they had committed these acts for their country.
That is my opinion that the sentences were according to law; these people were proud; from their farewell letters I remember such sentences: I am proud of my country, to die for France, or such things: I don't regret anything, etc. That particularly impressed me in those farewell letters.
Q Von Ammon came to Munich in January of 1945, I believe that is the month; was that in any way, insofar as you recollect in connection with Nacht and Nebel witnesses held there, as prisoners?
A. No, I don't think that was connected with that. I believe it was because the relationship between the Reich Ministry of Justice and the Munich judiciary authorities and been interrupted almost completely by the air attacks, and therefore in the larger cities an immediate commission of the Reich Minister of Justice had to be present.
Q. I am not quite clear as to the extent of aid, if any, you received as a result of your appeal to von Ammon. You stated that you had known him for 15 years. Now, aside from the fact that he did not turn you in for talking about a prohibitive subject, which might be logically expected with 15 years acquaintanceship with him. What concrete results were achieved. Were any of the prisoners under sentence, about whom you discussed with von Ammon actually saved from execution as a result of your conversation with him?
A. That I do not know. I know of the many persons who had been convicted, among whom, there were many Germans, some are now again at liberty. I made this statement on purpose because I wanted to find out whether the SS perhaps had shot those convicted people at the last moment, but I could unfortunately not find out about it. I don't know. If I may also say this: I was under the impression that von Ammon at that time could not do any thing else, but to be quiet in the matter, and to express his agreement with my tactics. I would have noticed immediately if he would have been a Nazi -he would have at least told me, I am not reporting you for I have known you for 15 years. He was obviously in agreement, only he was afraid.
JUDGE BRAND: May I ask one question.
BY JUDGE BRAND:
Q. In January 1945 you had this conversation.
A. The first conversation in January, but at that time I was still very curious.
The second conversation was later but I do not remember the exact date. It happened that von Ammon might remember that himself. It must have been in March or possibly the first days of April or possibly also in February, but in this case, it was later than January.
Q. In fact, it was almost coincidental with the end of the war, was it not?
A. No, it was somewhat before that time.
MR. KING: If there are no further questions, the Prosecution has no further questions to ask of this witness.
THE PRESIDENT: The witness may be excused.
(The witness withdrew from the court room).
MR. KING: In accordance with the agreement, I believe at this time, the Prosecution has no further documents to offer or witnesses to call until the Court meets in session again on next Monday morning.
DR. SCHILF: If the Court pleases, and if you still have time for a few minutes, I would like to make a correction, that is, or an objection against an exhibit. I would like to make a correction, or objection to exhibit 327, NG-247. At the moment I am not in a position to state the number of the document book --- it is document book 6, page 105 in the German document book 6, exhibit 327.
THE PRESIDENT: Exhibit 327 begins at page 111 in the English document book 6. The document that begins on page 105 is exhibit 326.
DR. SCHILF: I only Can state the German page. I hope that the translators have an English copy.
THE PRESIDENT: The best identification is the document number.
DR. SCHILF: Yes, I stated the number. It is NG 247.
THE PRESIDENT: That is found on page 111 of book 6.
DR. SCHILF: We have been given the opportunity to see the photostat of this document. The gentlemen of the Prosecution had an initial "M" and had identified it as the initial of the defendant Mettgenberg.
Now, since we have the photostat before us, we found out that the "M" is the initial of another official whose name is Mallzahn; so, I have to object to this document. I have to object to it in that it does not concern the defendant Mettgenberg at all. I regret that I can only make this objection now, at this time, but it was due to the fact that the document was submitted in very quick order and we could not study the photostat in detail. I may also say on the document there is, however, a directive on the left side of the bottom, it begins with the words, "For the signature of the Minister", and it states further "Via Ministerialdirector Dr. Mettgenberg. The conclusion could be drawn that Mettgenberg could have written this, but actually when this document was circulated Mettgenberg was not in Berlin at all but was on a trip. Therefore, he has no knowledge of this document, of this letter. I will later explain this further when I bring the defense case up. I only now want to clarify the initial "M" .
THE PRESIDENT: We will hear from the Prosecution as to whether or not they still insist it is Mettgenberg's signature.
MR. KING: The answer of the Prosecution is simply that the initial, in spite of the statement by Dr. Schilf, seems very similar to other initials which we know were Mettgenberg's. As Dr. Schilf pointed out it is quite logical to reach the conclusion it might very well be Mettgenberg's because on the bottom of the letter we see the matter was submitted to him for signature or was to have been submitted to him for signature. However, as to the determination of whether this is Mettgenberg's initial or not, it seems to me we might take that up outside of Court and report our conclusions to the Court rather than take up the time here in trying to determine it. I think we can reach an agreement if we can have some proof it is not Mettgenberg's initial, and we certainly will agree if his initial does not appear on it.
We will, however, insist that this letter in the course of office routine, was to have been sent to Mettgenberg, as is very apparent from the letter.
THE PRESIDENT: The objection does not go to the admissibility of the document, but it appears that it is only a question now as to whether Mettgenberg had any connections with it. Now, if you can agree out of Court one way or the other, that will easily settle it, but if the Prosecution still insists Mettgenberg had some relation to it, I see no remedy other than to bring it up as a defense matter in your case.
MR. KING: I can answer part of that question now. The Prosecution will insist that Mettgenberg had something to do with this letter since he was supposed to receive a copy. The only ground of contention will be whether or not this initial that appears on it is actually Mettgenberg's.
THE PRESIDENT: That is what I had in mind when I said if you could agree.
Is there anything further before the Tribunal before we adjourn.
If not, we will recess at this tine until next Monday morning at 9:30.
(The Tribunal then adjourned until 0930 hours, Monday, 28 April 1947).
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al., Defendants, sitting at Numbers, Germany, on 28 april 1947, 0930-1630, Justice Carrington T. Marshall, Presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Marshal, you will please ascertain if the defendants are present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of defendant Engert who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused at his own request and the proper notation will be male.
MR. WOOLEYHAN: The prosecution calls as witness, one, Benedict Wein.
BENEDICT WEIN, a witness, took the stand and testified as follows:
JUDGE BRAND: Will you raise your right hand and be sworn. Repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BRAND: You may be seated.
DIRECT EXAMINATION BY MR. WOOLEYHAN:
Q. Witness, would you please tell the court your name and title?
A. My name is Benedict Wein, priest at the penitentiary at Amberg.
THE PRESIDENT: Have his spell his surname, please.
THE WITNESS: W-E-I-N.