A Whom we were being obligated on 3 April 1945, not one word was said about Montgelas. I myself neither discussed the case then nor at a later time with the Reich Defense Commissioner for Defense, nor could I make any observations that the Reich Defense Commissioner was particularly interested in this case.
Q The witness Eichinger says this is Exhibit 150, and I shall quotes "Obviously, Oeschey and Schroeder saw the files, available at the prosecutor's office, and picked out those cases which they thought were particularly suitable to be tried before the civilian court martial.
On that occasion they must have come across the Montgelas file."
Is that true?
A No, after we were obligated on 3 April 1945, Schroeder and I went to the Palace of Justice in order to get an office. On that occasion Schroeder told me that he had orders to start at once, and for that reason he wanted to go into the matters which had accumulated on his desk because he had to prosecute them before tho civilian court martial. He did not mention any specific case, nor that of Montgelas.
As I remember, on the same day, the 3rd of April, Schroeder made out the indictment in the Montgelas case and passed it on to me without my exercising any influence on the indictment.
Q Schroeder had made out the indictment on the basis of evidence which had not been turned over to the People's Court or tho Chief Public Prosecutor with the People's Court, and that was included in the file. I believe that consisted of copies of the record of the interrogation of the investigating judge, and Schroeder retained a copy. Ag far as I was concerned, these documents wore inadequate for the trial. That was the reason why I caused a copy to be made of the police investigations and their files, and the files were then complete.
Q How was it that you thought the court martial was competent here, although the thing had been passed on to the Chief Public Prosecutor with the People's Court.
A The prosecution in Nurnberg remained competent for this case as long as the Chief Reich Prosecutor of the People's Court confirmed that he was now in charge of the case. That, however, never happened. When the files were sent to the Chief Reich Prosecutor with the People's Court---
THE PRESIDENT: Just a moment. I wonder, in fairness to the witness-- Does he mean that- they retained jurisdiction until the Chief Reich Prosecutor at the Peoples' Court confirmed that he had assumed jurisdiction?
THE WITNESS: Yes quite. This is a usage in Germany.
The Prosecutor who
THE PRESIDENT: After he had confirmed that he assumed jurisdiction, then you would say that the civilian court martial no longer had competency for the case?
THE WITNESS: The prosecution with the civilian court martial would ho longer have been competent to indict the man before the civilian court martial.
THE PRESIDENT: I think the translation was a little inaccurate in that. It is all right, now.
A (Continuing) When the files were sent to the Chief Reich Prosecutor, that must have happened shortly before the air raid in February 1945, and most probably, on that occasion, the files were lost; at any rate, they never reached the Chief Reich Prosecutor's Office.
DR. SCHUBERT: May I remark in this connection that the witness Rothaug, in his capacity as Chief Reich Prosecutor with the People's Court, has confirmed that as a witness on tho stand here.
BY DR. SCHUBERT:
Q Two witnesses, Eichinger in Exhibit 150, and Mueller in Exhibit 149 of the Prosecution, are of the opinion that the civilian court martial had not been competent, because what Montgelas had done had been done before the civilian court martials had been instituted, and it had gone back so far that the will of the people to resist could no longer be influenced. Will you please give us your comments about that?
A There cannot be any doubt that we were concerned here with the crime of undermining of military morale, and that crime can endanger the people's will to fight and resist.
Therefore, under Paragraph 3 of the Law against undermining Military Morale, a civilian court martial is definitely competent. It is without importance here, of course, that that the deed had been committed before the civilian court martial had been instituted. The principle that nobody can be withdrawn from his competent judge, cannot apply in cases-
THE PRESIDENT: When was the act committed?
THE WITNESS: About the end of January, 1945.
THE PRESIDENT: '45?
THE WITNESS: Yes, '45. I said just now that the principle that nobody must be withdrawn from his competent judge cannot be applied here, because the competent judge did not have the chance to work on the case, because as the administration of law had been impaired, this should have been made up for by the institution of the civilian court martial. What Count Motgelas did was not prosecuted under martial law, but purely under the Extraordinary War time peace decree which was in effect since 1939.
BY DR. SCHUBERT:
Q You have explained that the file about the case was complete. What did you conclude from the files as to the facts?
A What I am about to say now I am saying Entirely from my memory. I did not have the chance during this trial here of studying any evidence and documents. But I believe that I do remember these things with reasonable certainty. From the files I have found these facts. Shortly after the events of 20 July 1944 Count Montgelas was suspected of belonging to a resistance movement connected with the conspirators of 20 July 1944. Since the autumn of 1944 Count montgelas was systematically and constantly supervised and watched and shadowed by the police. Every step of his was shadowed. His letters were screened, his friends and acquaintances were also checked up on, and so forth. By the end of 1944 Count Montgelas paid a visit to Nuremberg, and at that time in the dining room of the Grand. Hotel he met a lady whom it was alleged he did not know before. They allegedly talked to each other about art. Towards the end. of January, 1945, Count Montgelas came back to Nuremberg and again in the Grand. Hotel he met this lady. According this statement this was a purely accidental meeting. The conversation which he held at the end of January 1945 was concerned at first with art, it was alleged, and in this connection Count Montgelas said that he asked the lady to go up to his room in the hotel and look at a few pictures which he had with his.
Actually this lady said yes, and the police official who kept shadowing Montgelas want to the adjoining room in the hotel and from there If I remember correctly, by using a mechanical appliance, listened in to everything Count Montgelas and the lady said and took shorthand notes. What the police official took down and which was later on part of the official files contained many pages. I am not longer able to give you all the remarks which Montgelas made to this lady, containly not verbatin nor in their right order in which they were made but those things in tho conversation I remember according to their trend. For some reason the conversation switched over to politics. Montgelas at first made derogatory and insulting Remarks about Hitler and a few other persons, I believe Goering and Goebbels, and then he added roughly this remark; Hitler was solely responsible for this war. Moreover, he had been proved to be an amateur in military natters, but nevertheless he had kept interfering with his generals' work, and anything said by Hitler or spread by his propaganda were lies and rubbish, particularly the promise that now weapons would soon be used and they would decide the war in our favor. There was only one solution for the German people, and that was to eliminate Hitler. Count Stauffenberg on 20 July had blundered. He should not have saved himself. He should have shot Hitler down. But that could be made up for soon. A now group had been formed. They wore all prepared to overthrow and kill Hitler. He, Montgelas, could not understand the soldiers who were still ready to fight for Hitler and obey Hitler. This only possible because they were still officers who remembered the oath which they swore, but people were being enlightened of this point and the German people would be told about what they call their Fuehrer and would be asked to resist.
He, Count Montgelas, had been active for some time in these things. Only the elimination of Hitler and his system would make our enemies to end the war and allow the German people to live under bearable conditions. That, as I recall it, was the gist of the conversation, which did not go on in the sense that Montgelas made a coherent speech or lecture. It was a conversation consisting of questions and answers, because according to the notes, the lady repeatedly contradicted Montgelas and attempted to prove to him the contrary and then Montgelas and swered back with the result that without any difficulty one could see that Montgelas here endeavored to convince the lady of his views and win her over to his side.
THE PRESIDENT: May I ask you a question? How many witnesses testified orally at the trial?
THE WITNESS: One witness.
THE PRESIDENT: Who was that?
THE WITNESS: The police official who had listened in to the conversation.
THE PRESIDENT: Did the woman testify?
THE WITNESS: The woman could never be found again. Count Montgelas refused to give her name.
THE PRESIDENT: Did the policeman orally at the trial tell about the long course of spying which ho had done in watching Count Montgelas?
THE WITNESS: On the day in question when Montgelas arrived in Nuremberg he was always shadowed.
THE PRESIDENT: I am asking you how you found out about it, about the long course of shadowing.
THE WITNESS: Montgelas was under constant police supervision.
THE PRESIDENT: How did you find out about that?
THE WITNESS: That became clear from the police files.
THE PRESIDENT: Was there any testimony about it given verbally at the trial?
THE WITNESS: It was confined by the police official who was examined in the trial.
BY DR. SCHUBERT:
Q Were there any indications for the fact that this lady was an agent of the Gestapo?
A There werenno indications for that. The police official whom I asked about that denied this and Montgelas himself also thought that this was an unlikely assumption.
Q Did Count Montgelas confess?
A Montgelas denied at first, but when he was interrogated by the Gertapo he made an extensive confellion. That confession he repeated to the investigating judge, and in all essential points in the main trial he continued to confess. In view of the fact that his conversation had been listened in to and taken down verbatim Montgelas simply acpuiesed in his fate and confessed. He had no chance to deny anything.
JUDGE HARDING: Was this more severe interrogation that he was given by the Gestapo?
THE WITNESS: The remarks which were taken down by the police official, he confessed that he had made those remarks to the lady in the form which the police official had listened into.
JUDGE HARDING: Was this a more severe interrogation that he had before the police?
THE WITNESS: No.
JUDGE HARDING: How do you know that?
THE WITNESS: Montgelas would have brought this out in his trial, if this confession had been forced from him. After his interrogation by the Gestapo, Montgelas was turned over to the Court and the investigating Judge Eser in interrogated him. I myself know Eser personally and I can well say that Montgelas had every chance to tell Eser without any fear whatever he wished to.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
CONTINUED DIRECT EXAMINATION RUDOLF OESCHEY (Resumed) BY DR. SCHUBERT:
Q Thank you. We have got to the Montgelas case. When did you first set it for trial and whom did you have summoned to the trial?
A It was either on the 3rd or at the latest early on the 4th of April 1945 when I set the trial for the 5th of April at three o'clock in the afternoon. When I set the date for the trial I also ordered that the defendant be summoned to appear, that the Police President be summoned as a witness and the defense counsel be summoned to appear.
Q Attorney Eichinger when he was interrogated by German authorities testified that in prison he was told that Count Montgelas only received the summons of the date of the trial and that at 2 o' clock in the afternoon for 3 o'clock in the afternoon, that is to say, an hour before the trial opened; Prosecution Exhibit 150. What do you have to say about that?
A It wasn't my task to deal with the sending out of the summons. That was done on orders from the prosecution through the office of the Court Police which was the only place which was competent to deal with the matter. At any rate, I immediately after we had set the trial passed on to the prosecution and as the mails were not working at the time the summons had to be sent out by messenger.
Q If I understood you correctly you had no influence on the sending out of the summons and particularly you did not order Count Montgelas summons only just before the opening of the trial.
A No, I had. no cause to do that whatsoever. Naturally I was concerned with all summons. That is to say, the summons for the defendant, the defense counsel, and the witnesses. I issued my orders simultaneously and in good time. To corroborate that I might point out that the Police Officer who had been asked to appear as a witness and whose summe 3733 summons was sent to him by a messenger did receive the summons in time.
If actually Count Montgelas received his summons one hour before the trial opened that is a fact I do not know anything about and that's what I did not intend. Furthermore Count Montgelas did not criticize that at the time and Eichinger can only say that from hearsay. But if that did really happen it can only be due to the fact that under the influence of the last days of the war, which were quite indescribable, the duties and the responsible work of the office staff might have been affected and. that had delayed the summons.
Q. The defense counsel of Count Montgelas, Attorney Eichinger, was not summoned. He testified to German authorities, Exhibit 150, that when his offices had been bombed out he had an emergency office in the Courthouse, and that around about 20 March 1945 he moved into that emergency accommodation and he says that he told the Court officials about that. Please comment on that point.
A Well, I can remember that in the course of 4 April the office notified us that it was possible to find Lawyer Eichinger's address; that his apartment as well as his office had. been destroyed in the recent air-raids and that nobody knew his new address. Schroeder said at the time that he would try himself and find out Eichinger's address. The next day he told me that he had called in the former office personally of Lawyer Eichinger but had been unable to obtain any information there as to his new address. I, myself, told the office to contact the Police Officers and see whether they knew Eichinger's new address. I assume that my orders were obeyed. At any rate, the office told me that the Police Station was not able either to discover Eichinger's address. If Eichinger, as he now says, at that time had already moved into his emergency office in the Courthouse and if he had told the Court authorities it would appear that that notification had reached neither the prosecution nor the office. One must bear in mind in this connection that the Courthouse shortly before, during an air-raid, had been badly damaged, and that in the beginning of April there was still complete chaos in the building.
Only emergency clearances had been perfected. The offices has to be moved out of whole wings in the building, and everybody was on the move and unless Eichinger's statements are due to a mistake it's probable that his notification was lost somewhere in all of that chaos.
Q I refer to Eichinger's statement, Transcript 3482 and to the testimony by the witness Huemner, Transcript page 3978; what was Count Montgelas' attitude when at the trial he found that his defense counsel was not present?
AAt the opening of the trial I told Count Montgelas that his defense counsel could not be found. As I have already pointed out in another connection the defense at that time was no longer prescribed by the law. Montgelas, himself, did not say that he refused to be tried without the presence of defense counsel and. therefore, there was no reason why the trial should be postponed. Nor did he indicate in any way that he wasn't sufficiently prepared for his defense.
JUDGE HANDING: I have a question. This case had been pending, I believe, since sometime in January. I would like to know what you considered the effect on the national defense would be and what was accomplished by the summary trial of Count Montgelas without the defense counsel under the confused circumstances which you have outlined?
A The offense which Count Montgelas had committed was an offense against the undermining law and, therefore, came within the competence of the civilian courts-martial. The ordinary Court, the People's Court, could not deal with the case because there was no more contact with the People's Court. Therefore, the prosecution in that case was the competent court-martial. There was no possibility for me to avoid trying that case. Whenever a defendant was indicted before the Civilian Court-martial I; unless I had an opportunity to reject the indictment for legal reasons, had to try the case.
JUDGE HARDING: You don't contend then it had any effect on the national defense?
A That wasn't a prerequisite for the Civilian Courts--martial to go into action.
JUDGE HARDING: But that's why it was set up, wasn't it?
A The Civilian Court-martial were set up because the ordinary Courts no longer functioned properly and offenses which appeared particularly dangerous were brought before the Civilian Courts-martials.
JUDGE HANDING: Why did this offense that had been committed four or five months before be particularly dangerous?
A The offense of undermining defensive strength must be regarded as a crime which seems designed to endanger, to jeopardize the power of resistance of the people.
JUDGE HANDING: You say you had nothing to do with the bringing of the case before you, but you had control the time it was tried, did you not, and the circumstances under which it was tried?
Court No. III, Case No. 3.
A I am sorry. I didn't quite get your question, your Honor.
JUDGE HARDING: You say, you had nothing to do with the bringing of this trial but you had control of the circumstances of the trial and the time in which it was tried, did you not, and you could have postponed it, could you not?
A When I had set the date for the trial it would have been necessary for me to find a proper reason to postpone the trial and naturally I was responsible for trying the cases which came before me at the earliest possible date. Therefore, whenever I postponed the date of a trial I would have been taken into account and it would have been necessary for me to produce responsible reasons for such a postponement. I could have postponed the trial if Count Montgelas had said he would not be tried without a defense counsel or he had not prepared his own defense properly but Montgelas did not say so.
THE PRESIDENT: How much time intervened between the time when you set the trial and the commencement of the trial?
AAt least 24 hours but I believe the time was longer. However, I cannot tell you for certain whether it was the 3rd of April or earlier or the 4th of April that I set the date for the trial.
THE PRESIDENT: And when was the trial?
AAt three o'clock in the afternoon on 5 April.
THE PRESIDENT: You didn't think that the shortness of the time was in itself a fact warranting postponement?
A That was the way in which we always set the trials at that time. We had to carry out proceedings at an accelerated speed and that was the reason why such things as time limits for the summons were not prescribed in even an ordinary proceeding.
Q The witness Eichinger stated that there had been considerable contradictions between the testimony of Count Montgelas and of the detective and with no witnesses having been asked to appear at the Court No. III, case No. 3.trial.
You have already told us something about witnesses. Please tell us something more about these contradictions.
A Montgelas again confessed at the trial. At the trial, too, he was given an opportunity to make detailed statements about every count of the indictment and to say everything that was necessary for his defense. I was very thorough and exhaustive in the conduct of that trial and as far as I remember it took about four hours. As regards that portion of the statement which Montgelas disputed, that is to say, the statements where he now said that he had meant them differently, there, concerning those points, the detective was heard and examined. He did say that all the statements were made in the form which he had put them down on paper, yet, the Court concerning the statements to which Montgelas would not admit, or, at any rate, to which he would not admit in the meaning in which they were supposed to have been made, those statements the Court did not consider proven. Montgelas would not let himself be persuaded by way of further explanations to give the name of the woman with whom he had conducted the conversation in question so that the basis of his conviction was only that portion of his statement to which he admitted without any reservations.
Q I refer to the testimony by the witness Huemmer, transcript page 3980 and it has been alleged according to Huemmer's affidavit, Exhibit 494, that at the trial you abused Count Montgelas; is that correct?
A In no way. The trial was perfectly orderly and proper. I did not abuse Montgelas nor was there any reason why I should.
Q What was the legal evaluation which the Court gave to Count Montgelas' statements?
A There could be no question that those remarks constituted an undermining of the defensive strength and that it had been Montgelas' intention to undermine the defensive strength. Montgelas did not dis Court No. III, Case No. 3.pute that in any way.
According to the significance and the contents of those remarks the offense amounted very nearly to high-treason. At any rate, it exceeded any other cases of undermining the defensive strength by far regarding its seriousness. Remarks of that type even as early as in the years 1940 and 1941 were not judged any differently than the way they were judged in the last years of the war. Any circumstance which might have made that case appear of lesser gravity did not exist. When those remarks were made and even at the time when they were judged large portions of the Armed Forces were still offering bitter resistance against the threat of a defeat. The undermining of the defensive strength, therefore, constituted a betrayal of those who were laying down their lives for their country. The prohibition of destroying defensive strength therefore had lost its meaning in no way, and, as, therefore, it was not a case of lesser gravity the Court could not, of course, do anything except pass the death sentence.
JUDGE HARDING: How could you call the remarks made to a single woman in a hotel room without any evidence that went beyond that woman, constituting a grave case of undermining military strength?
AAccording to the law and legal practice it was sufficient that such remarks had been made to one single individual unless there was an absolute certainty that individual was not influenced by those remarks herself nor could be expected to pass on such remarks. That was the customary practice concerning Art. 5 of the Extraordinary War-time Laws but it wasn't necessary that a particularly serious case had occurred. The ordinary case of undermining, that is to say, the case where no circumstances existed which might make it appear less serious than the ordinary case, under the law in itself had to be punished by the death sentence.
JUDGE HARDING: Why did the police who had followed this woman for the first time or, at least, knew her for the first time, when she met Court No. III, Case No. 3.the Count in the hotel and then who knew all about this conversation and apparently knew who this woman was, why were they not able to produce this woman?
A The police said that they did not know the woman's name. I asked the policeman to give us the name.
JUDGE HARDING: Didn't that raise a suspicion in your mind that she was merely an informer for the Gestapo?
A For that reason I asked Count Montgelas himself whether he had not thought or whether he wasn't justified in assuming that woman had been a police informer or Gestapo informer. Count Montgelas was almost indignant when he refuted that view. According to the statements made by the policemen and according to Montgelas's attitude I was bound to arrive at the conclusion that the woman was not a police informer.
DR. SCHUBERT: Witness, so as to explain a possible misunderstanding you have just been asked whether the police had shadowed the woman together with Count Montgelas, that is to say, that the police had kept under surveillance all of the time that woman, whose name they couldn't find out later?
AAs far as that goes, they didn't shadow the woman but naturally the police noticed that Montgelas was engaged in a conversation with that woman in the hotel and that afterwards Montgelas together with the woman went to a room in the same hotel.
Q You have said that Art. 5 of the Extraordinary War-time Law was applied. Did you, at the trial, give an opportunity to Count Montgelas to state whether positively it had been a case of lesser gravity within the meaning of Art. 5?
A Naturally, Count Montgelas was afforded an opportunity to say everything which he wanted to say for his defense.
Court No. III, Case No. 3.
Q Did Count Montgelas himself say that there were any extenuating reasons?
A No. Montgelas assumed full responsibility for the remarks which he had made, and as concerns the remarks to which he would not admit, we would not take those into consideration.
Q I should like to point out that the gravity of the remarks made by Count Montgelas is corroborated by the testimony of Eser, Prosecution Exhibit 150, Page 41, Attorney Eichinger, transcript Page 3481, Huemmer, transcript Page 3977, and Mueller, transcript Page 3772. Concerning the confirmation of the execution of the sentence on Montgelas did you have anything to do with that?
A No, it was entirely in the hands of the Reich Defense Commissar to confirm the sentence and to order the execution. The Civilian Court Martial as such and I as the president were not heard on that matter, nor did we in any way give our view on the matter.
Q In the investigation files of the German authorities which the Prosecution has introduced here there is the testimony of a man whose name was Groefle. According to that testimony on the 5th or 6th of April 1945 you in airraid shelter of the courthouse told Schroeder, and I quote: "Now we'll go across and we'll shoot dead the little Count." Exh. 150. Is that true?
A No, that isn't true. I never said anything of the kind, nor can I recall that I ever was in the airraid shelter together with Schroeder at that time, and neither did I express the wish to be present when the sentence was executed, nor did I in fact attend that execution.
Q The witness Huemmer corroborated that the defendant Oeschey was not present at the execution. I am now passing on to the next case. In Prosecution Exhibit 494 the witness Huemmer mentioned another case that was before the Civilian Court Martial, the Wahlrab case.
Court No. III, Case No. 3.
Please tell us something about that case.
A In the Wahlrab case, too, the indictment had been filed for undermining of defensive strength. The defendant was alleged to have made repeated undermining remarks to her customers in her shop. I do not remember the wording of those remarks, but as far as the meaning was concerned, they amounted to advice to eliminate Hitler and then the war would come to an end immediately, and so forth. The remarks in themselves were of a very grave nature. However, I myself was of the view that in consideration of the character of the defendant, who was a somewhat nervous type, one could have assumed that the case was of a less grave nature. However, I could not persuade the two associate judges. Both associate judges took the severe view that the time had come when one could no longer allow leniency, and such dangerous remarks must now be prosecuted severely under all circumstances. As I say, I was unable to prevail with my opinion, and I was outvoted.
THE PRESIDENT: Witness, under the provisions of the Civilian Court Martial law even if you had -- if the Court had found that there were extenuating circumstances you would have still been required to pronounce the death sentence, wouldn't you, if as you say there was a case of undermining defensive strength?
THE WITNESS: If we had assumed that it had been a case of lesser gravity so that there had been extenuating circumstances, then in my view the Civilian Court Martial would have had to transfer the case to an ordinary court.
THE PRESIDENT: If you found, as I understand you to say that the words spoken constituted undermining of defensive strength under the statute, then would you not under the statute have been required to pronounce the death sentence, even though you found extenuating circumstances?
THE WITNESS: No. If there had been any extenuating circumstances, Court No. III, Case No. 3.then under Article 5 of No. 1 of the extraordinary war time law there would have been a case of lesser gravity, and cases of lesser gravity could be sentenced by penitentiary terms or prison terms.
THE PRESIDENT: Not by your court, though.
THE WITNESS: That was the point under argument, but I held the view and finally prevailed with my view that before the civilian courtmartial no other law was to be applied but the law hitherto promulgated.
THE PRESIDENT: It is an unusual construction of the plain language of the statute. Go ahead.
BY DR. SCHUBERT:
Q Witness, you have already mentioned earlier on, and just now you have mentioned the argument that in connection with the verdicts passed by the Civilian Court Martial you only were inclined to pass the death sentence if substantive penal law provided for the death sentence. Please give us a brief explanation of your interpretation of No. 4, Section 1, of the extraordinary law which I am now going to put to you. Do you think that is substantive law or law of procedure?
A My view was that ordinance concerning the establishment of Civilian Court Martials was merely an ordinance of procedure, a procedural ordinance. That is to say, I believed that it was not the intention of that ordinance to change substantive law. If under No. 4 of that ordinance it says that the verdicts of the Civilian Court Martials must amount to death sentence, acquittal, or transfer to the ordinary courts, then that meant that the civilian courts martial were not to try cases where the defendants did not merit the death sentence. That is to say that in all cases where the death sentence was not mandatory the transfer to the ordinary courts provided for under No. 4 had to be effected. That is the way I interpreted this ordinance concerning the establishment of Civilian Courts Martial.
Court No. III, Case No. 3.
THE PRESIDENT: You said the transfer must take place, in your opinion, unless the death sentence was mandatory. Is that correct?
THE WITNESS: When the death sentence had to be passed then it had to be passed by the civilian Court Martial. But in the case of undermining defensive strength, in the view of the Civilian Court Martial the offense against undermining, if it should be of minor gravity, the civilian court martial could not convict the defendant but had to transfer the case to the ordinary courts because the Civilian Court Martial could not pass prison terms, according to Article 4, Section 1 of the ordinance.
THE PRESIDENT: Perhaps this will make clear the point that I am interested in. If there was a case in which if it was one of considerable gravity the death sentence could be imposed, but in which if it was one of minor gravity the death sentence was not mandatory, could your court try such a case?
THE WITNESS: That would have been a case of lesser gravity, and it would have been transferred to the ordinary courts.
THE PRESIDENT: You wouldn't try it at all?
THE WITNESS: Well, we couldn't have made a decision. We couldn't have convicted the defendant.
BY DR. SCHUBERT:
Q The witness Huemmer in Exhibit 494 gives an account of the Witrak case for illegal acquisition of food coupons. Please give us a brief account of that case.
A That was a very serious crime against the war economy law. According to the investigations, far more than 100 centweights of food stuffs had vanished on the black market. For years a case of that type had been regarded as particularly serious within the meaning of the wartime economy law, and in 1945 of course it was all the more serious. Therefore under Article 1 of the War Economy Law the death Court No. III, Case No. 3.sentence had to be passed, as it was provided for a particularly serious offense of that type.