Q It seems that you were also denounced by the Ortsgruppenleier for other activity.
A Well, no, I was not denounced. I was only charged with them and reprimanded, but they had nothing to do with the Court.
Q Just a little bit slower please.
AAt Filsegg I only took charge of my duties of care and as a priest.
Q But your activities at school were talked about and other activities which were not compatible with state directives at that time?
A Well, I have to object to that. That was only the opinion of Stubenvoll. Only in his opinion were those activities against the state. I never violated any state directives in that matter. I only stuck to my church directives.
Q However, your youth organization and your school activity, what did they object to it in that natter?
A Well, for instance, that as far as the pupills of the professional school were concerned, I gathered them for education after the lessons. The Ortsgruppenleiter Stubenvoll didn't like that, and then he made quite bad and mean difficulties for me. He threatened that I would be charged. Furthermore, I gathered the adult youth every three or four weeks in order to have discussions and a little lecture. There again Stubenvoll sent informers, inspite of the fact that he had no rights whatsoever to intervene in church matters.
Q You speak of intervening in church matters. Can you confirm that as a result of the centuries old tension between church and state in Germany, there were penalties for the mis-use of the priest's profession which were as old and which had been issued centuries ago?
A I know only the chancel paragraph, and that had existed for quite some time. Otherwise, I don't know anything.
Q Well do you know for instance, the Protizio of common law? You don't know that?
A No.
Q The Protizio.
A No, I don't know that.
Q But you know that the Chancel paragraph was issued during Bismarck's rule; that is, 1871, is that correct?
A Yes. Even during the trial Rothaug made a remark about it to me.
Q Do you know than that the very fact of misusing this sermon brings the fact of misuse of the chancel paragraph
A Yes, that is-
MR. WOOLEYHAN: I object to the question for the reason that Councel asked the witness if he knew that the very fact of misusing his sermon, etc. No such fact has been established. I object to its being used in a question in this manner. It is misstating what has heretofore gone into the direct examination.
THE PRESIDENT: The objection to that question will be sustained, chiefly on account of assumptions of fact.
BY DR. KOESSL:
Q Now, witness, you have tried, and you have said, that Justizrat Warmuth as your Defense Counsel had asked for notes which had been made by the mayor.
A Yes, he asked for them during the trial.
Q But you also said, witness, that your Defense Counsel did not make a point of it to bring about a ruling of the court.
A Yes, the Defense Counsel made a report on the trial, and he wrote that in it. I have this report here, and it is literally what he s aid.
Q. Now, on the strength of that sermon at that time, you gave as a basis Chapter 7 of the Matthew's Evangelical?
A. Yes.
Q. Was it the fact which was objected to, that this text was made the basis for this sermon?
A. Well, that could not be objected to because I had no power over that. I had to take that text.
Q. Is it correct if I assume that of course the words which you joined to that chapter were objected to?
A. Well, yes. The whole sermon, as I said, was explained by the witness in a way s if I meant by the False Prophets the leading personalities of Germany of that day.
Q. Did you mean them at that time?
A. I spoke quite in a general way, and I left it to the people what they wanted to understand from my sermon.
Q. Well, did you mean the leading personalities? I would like to know that.
A. I spoke in a quite general way on these matters of ideology, and I left it to everybody. If I meant somebody, then, of course, I meant, first of all, Rosenberg, who actually was the man who was involved with the National-Socialist ideology versus religion, by his book.
Q. In other words, the assumption of the Prosecution was correct?
A. It was an assumption and they couldn't prove it.
Q. Well, but today you admitted as being true -
A. I don't want to testify to that.
Q. Can you confirm to me that the Holy Father and the bishops in Germany at that time--as well as today-- prohibited expressly to the priest to take part in politics?
A. To take part in politics in the usual sense--yes. That was not taken part in by us priests, but we had the duty, however, of taking a position to the ideologies of the time in so far as they are in opposition with Christian principles.
Q. Have you perhaps read, by any chance, the publication in the newspapers the other day, according to which today again t here is a very strong, objection because some priests deal with political matters?
A. Well, quite often they have something in the paper there that there is a wish of having the priests refraining from taking a position in any political question; I know that. But you can not deny the church the right that it takes a position basically to various matters and questions of public life. That is not dealing with political matters. And every priest today certainly strives to refrain from entering in political discussions-
MR. WOLLEYHAN: Your Honor, I object to this entire line of questioning insofar as it affects the present time. The present time is not relevant to the line of questions and answers elicited on direct testimony in direct examination.
DR. KOESSL: May it please Your Honors-
THE PRESIDENT: The objection will be sustained.
BY DR. KOESSL:
Q. Now, witness, you have admitted that the newspaper distributor Geyer expressly stated that your sermon was very aggressive.
A. Yes, the witness Geyer in the minutes taken by the Gestapo had testified that, and they had written it down.
Q. Also the wife of the Ortsgruppenleiter, according to your own testimony, had testified that in church she had objected to what you said?
A. Yes.
Q. Was the wife of the Ortsgruppenleiter a woman who went to church very often?
A. Yes, relatively she went rather often to church. But one gained the impression-- and also the other people who went to church confirmed this-- that she went to church because she wanted to hoar everything that was said in church.
Q. This woman, did she already go to church before the time when her husband was an Ortsgruppenleiter?
A. Yes, also during that period already, Frau Stubenvoll wont to church regularly.
Q. And. now you assume that this woman suddenly went to church only as an informer?
A. That was the general opinion in the village; it was not only my pinion.
Q. You have admitted that when Rothaug questioned this woman he generally stuck to what she had testified before the Gestapo, that is, as a line for his questioning.
A. Yes.
Q. Furthermore, you said that he asked leading questions?
A. He submitted it to her in a way that she could only answer yes or no in a very easy way. That was the impression the public gained. My family was there partly.
Q. However, this woman had already told all that. How can you say that Rothaug put leading questions to that woman and told her what she was to say?
A. Because in her testimony she was rather uncertain.
Q. Why did she suddenly get uncertain in her answers if she had already told the Gestapo the very same things?
A. Between the questioning by the Gestapo in August and the questioning during the trial in December there was quite a period of time, and Frau Stubenvoll didn't have a good memory of what she had stated at that time. This impression my defense counsel gained also.
Q. In other words, the first statements of this woman were apparently under the impression of your sermons, weren't they?
A. Well, only what she may have stated to the Gestapo. During the trial, from her own knowledge, she didn't speak too much. She only answered.
Q. Did you ever see a witness who does anything else than answer questions?
A. Well, the first witness Stubenvoll-- he just spoke and he told and reported everything he knew against me though he didn't get any questions to that effect at all.
Q. But this man probably, on the strength of the Penal Code of Procedure was summoned to explain what he knew. Can you remember that?
A. I can not remember well whether he was summoned to do just that. He started to s peak against me.
Q. Now, you mentioned the fact that Rothaug had alleged that in your tender youth your parents had forgotten to give you the education of a National Socialist.
A. At that time I was much older, but indirectly this came as a hint concerning my parents, and my brother confirmed that to me, and the young lady who attended the trial: that they said that he oven hinted to my parents just when he spoke of education, of education from the tender youth onward.
Q. Mow, witness, you talk of a Pole who was in a camp.
A. Yes.
Q. Mas that a disciplinary camp?
A. No, that was a camp for the Poles who were not yet lodged with the people there.
Q. In other words, a sort of transient camp for such Poles who had not been assigned to work?
A. Yes. At that time, in 1940, the labor assignment was still rather slow. These were rather locations for them. Whoever wanted to work could go to construction centers and whoever didn't want to..... just stayed in the camp.
Q. In other words, there were Poles who came to Germany as volunteers because they found better conditions there?
A. Well, I couldn't say that.
Q. Now, witness, you also talked to Rosenberg. In other words, you admit that you only knew Rosenberg from the arguments against his theories?
A. Yes, from the books which came into our hands, in order to have sufficient information concerning Rosenberg.
Q. Now, in connection with this sermon that was objected to, Rothaug came to speak of Rosenberg?
A. Yes.
Q. Didn't you say prior to that, yourself, that your sermon was directed against, at that time, Reichsleiter Rosenberg?
A. I said that if I thought f somebody, then it was first of all Rosenberg from whom originated these ideologic bases of National Socialism, and the book of Rosenberg's was prohibited by the church because--and I will quote the literal words--it attacked the basic Christian belief.
Q Anyhow, the sermon which was objected to at that time gave reason to speak of Rosenberg, is that correct?
A Well, the sermon gave reason to talk about Rosenberg, yes, that is correct.
THE PRESIDENT: We will suspend at this time for the usual morning recess, fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: May I continue with the cross-examination?
THE PRESIDENT: Yes.
BY DR. KOESSL:
Q. Witness, the entire question of the burial of the Pole was mentioned only because, apparently, it was contained in the files, and there it was used as further evidence of your attitude of opposition to the State?
A. These files, however, had nothing to do with the actual matter charged in the trial.
Q. However, it was further evidence of your entire attitude towards the State at that time?
A. Yes, that is how the presiding judge interpreted it and also expressed it.
Q. How long did the whole trial take?
A. From about 8 o'clock until 1:30 in the afternoon.
DR. KOESSL: I have no further questions. Thank you.
THE PRESIDENT: Do any other defense counsel desire to crossexamine this witness?
(No response)
Does the prosecution desire to further examine on re-direct?
MR. WOOLEYHAN: One question, Your Honor.
REDIRECT EXAMINATION BY MR. WOOLEYHAN:
Q. Father, during the sermon in question for which, among other things, you were indicted, did you mention the name of Alfren Rosenberg?
A. No.
MR. WOOLEYHAN: No further questions, Your Honor.
THE PRESIDENT: I should like to interrogate the witness about the matter of dates. There seems to be a little confusion in my mind, at least, on that subject BY THE PRESIDENT:
Q. I understand from your testimony that the sermon that you have referred to was preached on the third Sunday in May, 1942. Is that correct?
A. No that is not correct. The sermon was in July, 1941. The exact day I cannot state any more at this time; it was about the 20th of July.
Q. What is the exact date - the approximate date, if you can't give the exact date - of your first arrest?
MR. LAFOLLETTE: If Your Honor please, it is not coming through the German.
THE PRESIDENT: The switch at the Tribunal's desk is open. I don't know why it is not coming through.
THE INTERPRETER: Your Honor, there is something wrong with the sound system.
THE PRESIDENT: Did my first question go through the sound system?
MR. WOOLEYHAN: No, sir.
THE PRESIDENT: I will repeat the question I asked before.
BY THE PRESIDENT:
Q. The sermon that you preached was apparently on the third Sunday in July of 1941. Is that correct?
THE PRESIDENT: Evidently it is not coming through again.
THE INTERPRETER: It is all right now, Your Honor.
BY THE PRESIDENT:
Q. I understand that your testimony now is that the sermon referred to in your testimony was preached on the third Sunday in July of the year 1941. Is that correct?
A. I can now tell you the exact date. It was the 20th of July, 1941.
Q. I understand you to say that from the time of the preaching of that sermon a period of fifteen months elapsed during which nothing happened. Is that correct?
A. Fifteen months passed until the trial. About a year later there was the denunciation because of this transfer of the Pole.
Q. About a year elapsed, then, before you were arrested, and then three or four months after that until the trial took place, is that correct?
A. Yes, that is how it was.
THE PRESIDENT: Very well.
MR. WOOLEYHAN: The witness may be excused, Your Honor?
THE PRESIDENT: The witness may be excused.
(Witness excused)
MR. LAFOLLETTE: If Your Honors please, while we are waiting for the witness Hecker, the prosecution would like to introduce at this time, as Prosecution Exhibit No. 427, the affidavit of Robert Hecker, Document NG-1401. We are advised that this has been properly distributed.
JUDGE BRAND: Will you give that again, please?
MR. LAFOLLETTE:NG-1401, Exhibit 427.
THE PRESIDENT: Where will that be located in the document books, if I may ask?
MR. LAFOLLETTE: Your Honors, it would be my thought that it could be put in either document book IV or VII, as the Court saw fit, or in the supplement books which will be shortly distributed, IV or VII. It is not a separate document.
THE PRESIDENT: Well, we want to be uniform, so let's have it one and not either.
MR. LAFOLLETTE: Well, Mr. Wooleyhan advises me it probably goes more properly in VII then in IV; either in VII or in the supplement to VII. There will be a supplement book VII introduced next week.
THE PRESIDENT: Very well.
MR. LAFOLLETTE: I offer the document as Prosecution Exhibit No. 427.
JUDGE BRAND: I have a note here, which appears to be wrong, that Exhibit 427 was NG-204, to go into Book IX-B. Will you correct me on that?
MR. LAFOLLETTE: If Your Honor please, I recall that now. That had been given as exhibit number 381, NG-204. There was a page or two missing and it was brought back in and reintroduced in its correct form, but it took its old exhibit number.
JUDGE BRAND: I see.
MR. LAFOLLETTE: I haven't heard the ruling of the Court. Is the document accepted?
THE PRESIDENT: Has the document been passed up?
MR. LAFOLLETTE: Yes, Your Honor.
THE PRESIDENT: It may be received in evidence.
(ROBERT HECKER, a witness, took the stand and testified as follows.)
MR. LAFOLLETTE: The witness will testify in German, Your Honor.
JUDGE BRAND: Witness, will you raise your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q You're the same Robert Hecker who has previously testified in this case?
A Yes, I am.
Q You're also the same Robert Hecker who executed an affidavit on the general subject of the affair at Sonnenburg on the 2nd day of May 1947?
A Yes.
Q Will you just review for a minute for the court what position did you hold in the Ministry of Justice late in January and early in February 1945.
AAt that time, January-February 1945, within the group, Infliction of Punishment, I was in charge of the quartering and the transfer of prisoners from one institution to another.
Q I ask you whether or not sometime in January 1945 you received any information about preparations for the evacuation of Sonnenburg Prison, should that become necessary?
A Yes. In the following way I found out about it: one day I happened to be with the General Public Prosecution at the Kammergericht--at the Prussian Supreme Court of Appeal--and he told me that because it might be necessary to evacuate Sonnenburg preliminary discussions had been carried on, therefore, but that he was not permitted to tell me any details about it; that he had discussed this matter with the Under State Secretary with regard to the measures to be taken but that he had misgivings, and therefore he would like to suggest to me that I should discuss this matter sometime with the Under State Secretary.
Q Just one minute. What State Secretary? What is his name?
A With the State Secretary Klemm. Then I had myself announced in the State Secretary's office; however, I was not called during those days.
Q Did you learn anything about this matter then later in the last part of January 1945?
A Yes. Whether that was at the end of January, I don't know; but it may have been around that time. When I was the official on duty one night, we got a telephone call from the director of that institution that an advance of the Russians was about to occur and that the Russian tanks had a break-through and that within the shortest period possible a decision would have to be made as to whether the institution was to be defended. Thereupon, I immediately telephoned Minister Thierack in his home and asked him for instructions. Minister Thierack stated that the institution would have to be defended. Thereupon, I again called the institution and informed the people of this decision, and in so doing I said that I had certain misgivings in regard to military measures on the part of the officials of the institution. Therefore, in as far as possible it was to be avoided, to call the enemy's attention in any way whatsoever to the prison when he would pass with his tanks through the town of Sonnenburg. The director of the prison then asked what further measures he should take if the occasion should arise. Thereupon, I called the Generalstaatsanwalt--the General Public Prosecutor--at the Kammergericht--the highest Court of Appeals of Prussia and I wanted to ask him what instructions he had issued. I found out that the General Public Prosecutor was at that time in Brandenburg. The official--the Referent--who was present, a first prosecutor, told me that according to the instructions which had been issued, the police was supposed to be informed in case of an evacuation. When the prison called again later on, the Vorstand--the presiding officer--told me that there was no more immediate threat to the prison.
Q This was the official of the prison now, you're speaking of?
A Yes, that is correct. Then on the next day I heard that the news which at first was so alarming was very much exaggerated and that for the time being, one could not yet tell whether an immediate evacuation would become necessary.
A few days later, however, another expert of our division told me that during the night he had a conversation with the Sonnenburg Prison and that the prison had been evacuated.
Q Excuse me, just a minute. Will you give the name of that official, if you recall it?
A Yes. That was Ministerial Counsellor Eggensberger. Ministerial Counsellor Eggensberger then also put down in writing a notice after he had discussed the matter with the General Public Prosecutor, a copy of this notice I also received. In this notice, it was stated that in regard to the evacuation of the prison, discussions had taken place between the General Public Prosecutor at the Kammergericht and the Reich Defense Commissar, the Gauleiter of the Province of Brandenburg; and that during these discussions it had been decided that the only part of the prisoners should be transported away. The rest of the prisoners were supposed to remain in the prison and there to be transferred to the police before the Russians would capture the prison.
Q Excuse me. When you say "police", was it the regular police or was it the Gestapo, or do you not remember?
A That was the Gestapo. On the basis of this agreement, a part of the German prisoners was then transferred while the officials of the prison and the rest of the German prisoners and furthermore the Polish prisoners, which had been transferred there from a prison in the GRV Posen, together with the director of that prison, had left the prison and had marched on foot through Brandenburg to another prison. They were on their way.
Q Was this agreement, as I understand, between the General prosecutor and the Reich defense commissar and the Gestapo--was this the agreement to which the Under Secretary Klemm was also a party?
A Yes. This was, according to the notice, discussed and the agreement was reached between the two offices:
that of the General Prosecutor and that of the Under State Secretary.
Q And the last information that you got was in the form of notes which were given you in the morning by Ministerialrat Eggensberger who had been on night duty the night before you talked to him, as that right?
A Yes, that is correct.
Q And to the best of your recollection as to the time, is that this was late in the month of January or early in the month of February 1945, is that correct?
A The exact point of time, I cannot remember any more, but it was the time when the battles were around Kuestrin. That must have been about the end of January.
MR. LAFOLLETTE: Now, if your Honors please, so that we may also make some progress -- on May 1st the Prosecution introduced Document NG-737 as Prosecution's Exhibit 416. That was a separate document and it was the affidavit of the witness Hecker, and dealt with matters of Nacht and Nebel proceedings, or the closing negotiations on those, as I recall, late in the war. There was, of course, no cross examination on that affidavit. I know that Defense Counsel generally wants to cross examine, and I noticed a note today that Dr. Haensl had served notice that he wanted to cross examine on the basis of that affidavit. Now, I don't want to talk too long, but I want to make certain things clear. Previously, on April 18th, the Prosecution introduced Document NG-1008, as Exhibit 277; that was in Book IV-C, at page 17. In connection with that affidavit the witness Hecker has testified and been cross examined; so that we will not object to a cross examination of this witness now not only on the basis of this affidavit 1401 and this testimony, but also on the basis of the affidavit on the general subject of Nacht and Nebel, and we hope that that can all be done at this time. But we would, of course, be forced to object to further cross examination on the prison transfer affidavit which was given much earlier.
Having stated the position of the Prosecution and the reasons for it -- which I believe are fair -- I now turn the witness over to the Defense.
THE PRESIDENT: Defense Counsel may proceed with the cross examination along the lines of the suggestion of the Prosecution at the moment; that is to say, no further cross examination on Document 1008.
CROSS EXAMINATION BY DR. SCHILF: (Counsel for Defendants Mettgenberg and Klemm)
Q With the permission of the Court, I begin the cross examination first of all about the affidavit which was submitted today, NG-1401, Exhibit 427. Witness, the facts which you testified to orally, on the main, you had already stated in it's basic lines in this affidavit of 2 May 1947.
A. Yes.
Q Just now you told us, in order to supplement it, that the first telephone call conversation you had with Thierack, was during the night of 30 January 1945. In your affidavit it says literally, and I quote: On page 1 -- 1 suppose that it was during the night of the 30th January 1945 when I as official on duty in the Reich Ministry of Justice received a telephone call from Sonnenburg. What reasons do you have for saying that this telephone conversation during that night, which was previous to your telephone conversation Thierack, might have been on the 30th of January 1945?
A It was, without any doubt, during the year 1945, and it was during the time when the Russians were advancing against the Province of Brandenburg, and the battles were around the fortress Kuestrin. These battles must have been about the time January or February. Of Course I cannot remember the exact day or date, but it must have been around that time approximately, and since I was told that 30th of January was the day when I had talked with Sonnenburg in person, I assumed that that was that day, without remembering any definite date. I can only say that it must have been approximately at that time.
Q Witness, I am not quite clear on this point. You say, if it says here -- and by that you mean your own affidavit -- that during the night of 30th January 1945, it must have been so. But you, yourself, made this affidavit, or would you like to clarify what you have just stated that it must probably be correct.
A I was told that on the 30th January I was called on the telephone; I say, and I said that could be right, because it must have been approximately around that time.
Q And may I ask you who told you that were called on the 30th of January?
A During my interrogation I was told that on the 30th of January I was called on the telephone.
Q That is when you made out this affidavit during the interrogation?
A Yes, during my interrogation I was told that I was called on the 30th of January, and I was asked whether this date could be correct, and thereupon I said "yes" that may be, without my being able to say exactly whether it was the 30th of January or any other day.
Q Thank you very much. Who called you from Sonnenburg; was it the director of the prison himself?
A Yes.
Q Can you still remember the name?
A I believe Buechner, Regierungsrat Buechner, I believe.
Q Can you say something about the following: Was something said as to this telephone call on the 30th of January, 1945 which was made by Buechner -- did the interrogating officer who interrogated you inform you of this; did he make any statement a bout this?
A He did not mention the name; he only said that I was supposed to have received a telephone call and whether I knew anything about the matter, and according to his documents he knew that I was called by the Sonnenburg prison, and that I had discussed this matter with them.
Q That is, the interrogator only referred to documents which he had in his possession?
A Yes, he said he had the documents; Yes.
Q Then, a few days later, that is what the affidavit says, you spoke with Eggensberger?
A No, a few days later Eggensberger informed me that he had a renewed telephone conversation during the night; I discussed the matter with him the next day already.
Q No, I mean, this information you received from Eggensberger, as you described it, that was supposed to have taken place a few days later, and the conversation during which Eggensberger is supposed to have told you that the prisoners had already been evacuated.
A Yes.
Q Can you tell us what your conception of a few days is; a few days is somewhat indefinite; was it five, eight, or ten days?
A Today it is very difficult to say from my memory, but If I tried to think back, I believe it was probably three to four days later, without being able to say so with certainty.
Q Witness, you were in Department Five of the Ministry, that is Strafvolzug, execution of sentences, and apparently you also were at that time in charge of the difficult problems of the transfer and evacuation of prisoners.
A Yes.
Q When at the time you were on night duty, you received this telephone call, you were not by chance a man who did not know anything about these matters, but actually you were the expert in that field.
A Yes.
Q If you were an expert for these questions, these problems, then you must also have heard that already in the middle of January an order by Himmler was issued.
A No.
Q In order to refresh your memory, I shall tell you some of the details. Himmler was around the turn of the year 1944 - 1945 Oberbefehlshaber, commander in chief of the so-called Vistula Army; do you remember that?
A The time I don't remember, but that he did become that I do remember.
Q Himmler then as commander in chief of the Vistula Army, immediately following his appointment, as far as I am informed, in the middle of January he issued an order to the population, as well as to all the civilian authorities stating that within the area in which the army was operating, that is the so-called operation area any kind of evacuation even for civilian population was forbidden. The reason for this was that in order to strengthen the defense very quickly he also needed the prisoners of the penitentiary Sonnenburg which he intended to use for defense work.