One further word. When a question is presented by an objection of counsel which properly calls for a ruling by the Commission, the Commission will rule. But when, after the objection, another question has been asked we assume, of course, that the question to which objection has been made has been waived. It was for that reason that we did not rule upon Mr. Wooleyhan' objection. I don't want a counsel to think that we will not rule on a proper objection. But we had no opportunity to do so.
DR. KOESSL: Your Honors, may I, briefly, ask you to excuse the defendant Rothaug for the afternoon from appearing in the session because he is still suffering from very serious stomach trouble.
JUDGE BRAND: We will excuse him today.
We will adjourn now until one-thirty.
(Commission adjourned until 1330 hours)
A Those in security detention? At the penitentiary of Amberg there were about two to five.
Q And how many of this group, according to your knowledge, were transferred?
AAccording to my knowledge, there may have been 80 to 110 prisoners, possibly a few less or a few more. I could not state that with certainty any more, it is just approximate.
Q Approximately.
AApproximately 80 to 110; I think that might be right.
Q Now, I should like you to follow me through the following calculation.
If you mention 150 to 170 prisoners who, according to the regulations, were to be selected for that action, and if you state that about 80 to 110 were then actually put on these lists and turned over to the Gestapo, is the calculation correct, then, that well over one-third were not transferred, that although the prerequisites were given, they were excluded from the transfer? Is that correct?
A That should be about correct, for the simple reason that we also had the possibility of retaining prisoners.
Q Yes. Well, I will revert to that right away. You state in your affidavit that prisoners who worked in an armament plant could be excluded from that transfer by you.
A Yes.
Q Well, how did that come about? Was it so that prisoners who fulfilled these requirements were excepted from the outset so that their names did not even appear on these lists; or were they also put on these lists to be transferred and were then retained by the management of the prison?
A That happened in two ways. Some of them had been excluded from the outset before. That is to say, when Engert was there we discussed that with him right away, and others were excepted later. An appropriate report was then made to Department 15, Abteilung 15, of the Reich Ministry of Justice.
Q Perhaps I did not express myself quite clearly. Is it correct that generally those prisoners who -- owing to the fact that their work in prison was important to the war industry -- were not transferred did not at all appear on the lists, that is, their names did not at all appear on the lists that came from Berlin?
A Yes; that is what I just said, that some of them did not have their names on the lists from the outset, and in the case of others the necessity appeared later that they were still needed and an appropriate report was made.
Q Witness, do you know that of those prisoners whose files were examined at the time by Engert and others for the purpose of transfer, a certain number did not figure in the list of transfers finally?
Did you understand my question?
A No, I did not quite understand it.
Q If, of these 170, about one-third had not been transferred, then somebody must have made a decision, for some reason, that third should not be transferred and why although from the outset it would have been covered by that instruction or that decree.
A Yes, yes, because these people were needed for the armament industry.
Q Of that entire third, were those all people who were needed for the industry?
A Yes, certainly.
Q Do you know that for certain?
A Yes, certainly.
Q You are quite sure?
A Yes, of course, because these people were needed, badly needed, and that was the reason why they were excepted.
Q Could you state that people who met the requirements were then not transferred because, in the course of the investigations, one found that they were not incorrigibles?
A No, I cannot say that, because I did not see these requirements in detail.
Q I see. If I understand you correctly, then you do not know the principles according to which that so-called commission investigated the files?
A No, I don't know that.
Q You had nothing to do with them?
A No.
Q Now, a few brief questions, witness:
After Engert and his assistants had left, how long did it take, in your estimation, until you heard anything further about the matter?
A Engert was here about in March, and -
Q Excuse me if I interrupt you. You mean March of 1944?
A March of 1944. It may have been April or May when, from the Reich Ministry of Justice, a list was sent down according to which such and such prisoners had to be transferred. In June of 1944 the first transport was carried out by the Criminal Police or the State Police at Regensburg, who came to Amberg to get the prisoners.
Q Then you apparently correct the statement made in your affidavit that you received that frequently-mentioned list from the RSHA; you received it from the Reich Ministry of Justice. And the Gestapo at Regensburg, on the basis of the list which they probably also received from Berlin, came to call for the prisoners?
A It is possible, or it may have happened that the list came from both the RSHA and the Ministry of Justice, but I could not be quite sure about that.
Q But that the list came from the Ministry of Justice, that you know?
A I can't be quite sure of it.
Q Herr Prey, would you have released anybody from your penitentiary or from your penal institution if just a letter had been received from the Gestapo saying "turn this prisoner over to us?"
A Well, I think that might not have happened. However, I remember that there were two lists, and I assume that one list came from the RSHA and the other from the Reich Ministry of Justice.
Q I see. Now a last question, just for the purpose of clarification. In that affidavit you say that the basic directive of the Reich Ministry of Justice was to the effect that the so-called asocial elements should be transferred to the concentration camp Mauthausen.
A Yes.
Q Did it especially state in the decree, as far as you have heard about it, or was there any mention made of a concentration camp, by name?
A No.
Q No? Well, then, that probably may have been a little less clear when that affidavit was written.
Commission III, Case III.
A No, we only found out about that through the secret state police, the gestapo, at Regensburg, that these people were to be transferred to Mauthausen.
Q That the people were to come to Mauthausen, you -
A Yes, we found out.
Q Where did you obtain the information that Engert went from one institution to another and selected the people, as you have expressed yourself?
A That Engert told me himself, that I don't remember for sure that he came from Ebrach and continued to Straubing or whether he was first at Straubing and then continued on his way to Ebrach, but Engert told me that himself.
Q Did I understand you correctly whether Engert told you at the time when he was in Amberg that he was also going to Ebrach or Straubing or had been there already?
A Yes.
Q And that is what you are referring to?
A Yes.
DR. LINK: I have no further questions.
DR. SCHIIF: Schilf for the defendant Klemm.
MR. WOOLEYHAN: May it please the Commission, before Dr. Schilf begins the cross examination of this witness, I would like to inquire on behalf of which of Dr. Schilf's clients the examination is being conducted.
THE PRESIDENT: Dr. Schilf expressed the intention to cross examine for the defendant Klemm.
MR. WOOLEYHAN: I must have misunderstood.
EXAMINATION BY DR. SCHIIF:
Q Witness, you mentioned that NN prisoners as well as Poles from other penitentiaries and penal institutions in April, 1945, were brought to Amberg?
Commission III, Case III.
A Yes.
Q Do you happen to know when the American troops marched into Amberg?
A Into Amberg? The American troops arrived on 23 April. That is to say on 22 April in the city and on the 23d of April 1945, in the penitentiary of Amberg.
Q That means, apparently, that a large number of prisoners had arrived only a few days before the American troops occupied the penitentiary?
A Yes. At the time, it was shortly before the American troops arrived, we received from various institutions shipments of prisoners from Kassel, Wuerzburg, Nurnberg, Bayreuth, and from Brieg.
Q And those apparently were towns, the ones you have just mentioned, which had previously been occupied by American troops before Amberg?
A Yes.
Q So that transfer, was only connected with the advance of allied troops?
A Yes.
Q In your affidavit you mentioned as maximum capacity the figure 1100, the maximum number of prisoners?
A Yes.
Q And then later you said it was over 2,000 shortly before the collapse?
A Yes.
Q And that, as you say, was only a few days before the arrival of the Allied troops?
A Yes.
Q Witness, according to your affidavit, you worked at the penitentiary at Amberg for 24 years?
A Yes.
Q In your affidavit you were only asked about conditions as Commission III, Case III.
we have found out now, about conditions as they were shortly before the American troops arrived.
A Yes.
Q Could you tell us anything as to whether conditions in Amberg before that time were generally correct, as they should be?
A Before that time conditions were always correct in Amberg.
Q You have also told us that in September 1944 Poles were brought in?
A Yes.
Q Do you happen to know whether these Poles came from a penal institution which was in the so-called incorporated eastern territories, that is to say, the former Polish territories?
A Yes, these prisoners or these Poles came from Schiraz.
Q And that is in the territory of the occupied Polish region?
A Yes.
Q And do you know why they came?
A Yes.
Q May I ask you to tell us that?
A They came for the purpose of working in the Zeiss plant in Amberg.
Q You have misunderstood me. I didn't ask for the purpose. I asked for the cause, why they came from the occupied Polish territory to Amberg.
A Yes, they were transferred because in the Zeiss plant workers were needed, and these Poles already had worked in the Zeiss plant at Schiraz, but that Zeiss plant at Schiraz had been dissolved and the prisoners were therefore transferred to Amberg.
Q And that penal institution at Schiraz was dissolved and that was in December 1944, because the Russian troops were approaching?
A That I cannot say for sure, but I would assume so.
Q Then one last question. Then, witness, before you the penitentiary director Schirmer has stated that in Ebrach also there were Commission III, Case No. III.
NN prisoners and that these NN prisoners were marked with three letters. There were two different groups, the first group was marked NNZ and the second group NNU. Could you give an explanation to the Tribunal what it was all about, what these markings meant, these designations, because you also received NN prisoners, at least shortly before the collapse?
A No, I could not explain that, but I assume that they may have been prisoners in detention pending trial, and others who had already been tried and sentenced.
Q That you assume from the designation, that is, from the letters "U" and "Z" which, to anybody working in a penitentiary, are quite clear?
A Yes.
Q Now, witness, the statements made here before the Tribunal by Father Wein in have been put to you, and Father Wein stated that you kept the books at the penitentiary of Amberg. That is correct, isn't it?
A Yes.
DR. SCHIIF: I have no further questions.
THE PRESIDENT: I would like to ask, is there any further cross examination? If not, I should like to ask the witness a question or two.
BY THE PRESIDENT:
Q In connection with the prisoners who were transferred to the Gestapo, how can you describe the nationalities? How many nationalities?
A Only Germans.
Q Only Germans were transferred to the Gestapo?
A Yes.
Q Were they NN prisoners?
A No, they were asocial elements.
Q And what had been their sentences before they were trans Commission III, Case III.
ferred to the Gestapo?
A They were prisoners with life terms and those who had received terms of over eight years.
Q Are those the transfers that were made in April, or were those made before that?
A No, they were the prisoners who were transferred to Mauthausen.
Q And when was that?
A That was in June, 1944, and in about July 1944, possibly in September, and then again in January the balance. In January 1945.
Q And in your affidavit you used the term "asocial". What kind of people did you include as the asocial people?
A Well, I really couldn't say that precisely. I assume that those were the kind of people, or are the kind of people, who do no more fit into human society.
Q Well, you used the term in your affidavit. Who did you mean? Did you refer to people of some particular race?
A No, generally that was based on that secret decree from the Reich Ministry of Justice, and that was concerned only with German prisoners.
Q I referred to any particular race of Germans. Did the asocial people refer to the Jews, as you used the term?
A No. At that time we did not have any Jews at the penitentiary of Amberg.
Q I didn't understand about the NN prisoners. Were any of the NN prisoners transferred to the RSHA?
A No, at that time in April 1945 there was no longer any possibility to got in touch with any other offices of the Reich Ministry of Justice or the Prosecutor General.
Q And what was done with the NN prisoners? They were kept in Amberg?
A Until the arrival of the troops they were kept and then re Commission III, Case III.
leased.
THE PRESIDENT: That is all.
DR. SCHILF: I ask to be permitted to correct a date mentioned by the witness.
BY DR. SCHILF:
Q As I have understood you, answering the question of the presiding judge, you have just mentioned as the date of transfer to the concentration camp Mauthausen 1944 and 1945. Isn't that a mistake? Wasn't that '43 and '44?
A No, no. In September 1943 that so-called secret decree arrived. Then they went through the files and that took until January '44. Engert then arrived about in March 1944 and the first transfer to Mauthausen occurred in June, 1944. The balance -- there were just a few, two or three, the last shipment occurred in January '45 to Mauthausen.
Court No. 3, Commission 3 Q.- But that so-called selection, and that is also what Father Wein has stated.
A.- In September 1943.
Q.- '43, I see.
MR. WOOLEYHAN: Your Honors, we have no redirect examination, but we do wish, in view of the question that the Tribunal has asked, to remind the Tribunal that the complete text of the secret decree in question is to be found in evidence in Document Book IV-A.
THE PRESIDENT: The witness is excused. Call the next witness.
GOTTFRIED HUEMMER, a witness, took the stand and testified as follows.
JUDGE HARDING: Will you hold up your right hand and repeat after me the following oath.
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 HARDING: You may be seated.
EXAMINATION BY DR. SCHUBERT (For the defendant Oeschey):Q.- May it please the Tribunal, we are concerned with the affidavit, NG-952, Exhibit 494, which is to be found in Document Book III-B, Supplement.
Witness, would you please give your name and your occupation?
A.- Gottfried Huemmer, former senior inspector with the prosecution at Nurnberg.
Q.- Mr. Huemmer, you have signed an affidavit and mentioned a number of cases which were pending before the Standgericht at Nurnberg. What did you have to do at the civilian Court No. 3, Commission 3 courts martial at the Standgericht?
A.- I have nothing to do at the Standgericht itself, but I was only a certifying official. As certifying official, I was present at some executions.
Q.- Did you take part in the sessions of the Standgericht?
A.- As a listener, yes.
Q.- What sessions did you attend?
A.- The Montgelas case.
Q.- Was that the only case you attended?
A.- Well, it may be that I was in the courtroom for a short time, maybe a few minutes during some other case -that I couldn't remember now -- and then left the courtroom again.
Q.- Did you hear the entire Montgelas case?
A.- Well, I think I did.
Q.- Do you still recall, witness, that Count Montgelas had made statements which according to public opinion at that time were considered to be very serious?
A.- Well, certainly, otherwise he would not have been brought before the Standgericht, civilian courts martial.
Q.- Can you still recall whether apart from what you have stated in your affidavit, whether Count Montgelas said that Stauffenberg, the man who committed the attempt at assassinating Hitler should have shot Hitler down?
A.- That I can certainly no longer remember.
Q.- Or maybe you remember the following, that Count Montgelas referred to a resistance movement?
A.- No, I don't remember that either, I only remember what he had told the lady concerning the person of the then Fuehrer, but other things I do not remember.
Q.- But there were a number of ether statements in ad Court No. 3, Commission 3 dition to those which you have mentioned, is that correct?
A.- Well, that may be so, but as I said, I can no longer remember them.
Q.- You state in your affidavit that Montgelas was denounced, then arrested, and then was ought before the Standgericht.
A.- Yes.
Q.- Do you know when that trial took place before the Standgericht?
A.- If I remember correctly, it was on the fifth of April 1945. If that is correct, I do no longer remember. Maybe I am mistaken.
Q.- Do you happen to know when Montgelas was arrested?
A.- No, I don't know that, but until the day when he was sentenced, I think he was in prison for sometime. I don't know how long, however.
Q.- Witness, you said you were certifying official at that time.
A.- At the execution only, yes.
Q.- What other tasks did you have in the courthouse?
A.- I was the office manager cf the prosecution, in other words, if I may express it so, I was the right-hand of the senior prosecutor.
Q.- Witness, do you happen to know that Count Montgelas had selected a defense counsel by the name of Dr. Eichinger?
A.- I heard about that during the trial.
Q.- As office manager of the prosecution, were you aware at the time where Dr. Eichinger's office was?
A.- No, I did not know that.
Q.- Witness, Count Montgelas during the trial was questioned about the statements with which he was charged?
Court No. 3, Commission 3 A.- Yes, of course.
Q.- These charges which were raised against him, did he confess the facts essentially or did he deny them?
A.- Well, he essentially admitted them, but he tried to modify certain points.
Q.- Then an official of the criminal police force was heard?
A.- Yes.
Q.- Were there between the statements made by that official and the confession of the Count Montgelas, were there any essential discrepancies?
A.- Well, certainly, according to what Count Montgelas said, because he mentioned that he did not use the one or the other term which I can no longer remember, at least not in the sense mentioned by the official.
Q.- I mean, witness, whether in the essential points, in the really essential points, whether there were any discrepancies, or aren't you any longer in a position to tell us about that?
A.- Well, essential discrepancies did not exist because it was definitely shown by the statement made by the officials of the criminal police that such statements had been made at any rate.
Commission 111 case 111
Q Now, the court urged Montgelas to mention the name of the lady to whom he had spoken; is that correct?
A Yes, that is correct.
Q The court intended, therefore, to have a possibility to listen to this lady.
A Yes.
Q What did Count Montgelas answer?
A He refused to give the name; at any rate, he did not want to compromise that lady.
Q The execution of this sentence occured one day after the trial, is that correct?
A Yes.
Q At the execution was the presiding judge of the Standgericht, Oeschey present?
A I don't believe so; otherwise, I would have mentioned it in the record of the execution.
Q Did you look at that record of the execution recently?
A Weel, I know quite well today, to this day, what I wrote, and by a coincidence I made a copy of that execution which I can put at the disposal of the court; I have in my pocket right here.
Q And in that copy of the record, you did not list the defendant Oeschey?
A No. He was not there; I could say that with absolute certainty that he was not there.
Q Herr Huemmer, in your affidavit you made some statement about the execution of Count Montgelas. Did the Standgericht, or the court, in general have anything to do with the execution of a convicted defendant, or was that a matter for another authority to carry out the execution?
A Weel, when the Standgericht sentence was pronounced, it no longer had anything to do with the execution of the sentence.
Q Who was that who had to take care of that?
Commission 111 Case 111
A That was the matter of the senior prosecutor and the execution squad.
Q Witness, you state further and I quote: "If I am told that Oeschey insulted the defendant Montgelas in the most obscene manner in order to make an impression on his listeners, then I have to admit that without reservation." Witness, I ask you now, and please think it over carefully before you answer--is that actually true that the defendant Oeschey during the trial insulted Count Montgelas in the most obscene manner?
A Weel, how shall I express myself. In a noble manner the defendant was certainly not treated.
THE PRESIDENT: I did not understand the answer. Would you repeat your answer, Mr. Witness?
A This is hard to tell. In the most gentile and noble manner the defendant was certainly not treated; but individual expressions I could not remember today, I did not write them down; and I am also ever sixty-four-years old and my memory is not so good that I could be more specific about that. But I can certainly say that at times the defendants were treated quite differently.
Q Were any obscene words or insulting words used, or were they just severe?
A Well, he was treated quite severely, at any rate.
Q And you could not remember any insults?
A Remember? Well I don't know. I cannot remember, much as I might try, I would have no reason to hold out and I would certainly say, but I could not remember individual words; everything happened so quickly that it was quite impossible to keep these things in my memory.
Q Witness, I have read the sentence to you before from the affidavit--your affidavit which we discussed. The sentence begins with the words:" If I told that Oeschey insulted"--and so and so forth.
Commission 111 Case 111 Who told you that?
A Well during the interrogation-
MR. KING: If the Commission please, I think this is where we came in. We have already asked the question once; we have received the witness' answer. I think we have no doubt made a complete circuit, and we need not to ask the same question as before again to receive the same answer, I therefore object toit.
DR. SCHUBERT: May it please the Commission, this is an entirely different point we are concerned with. I asked first whether Oeschey insulted the defendant, and now who-
THE PRESIDENT: I understand the purpose; you may answer.
BY DR. SCHUBERT:
Q Witness, you can answer. Do you still remember my question?
A May I hear it again?
Q Yes. I read the sentence to you before from your affidavit.
A Yes.
Q "If I am told that Oeschey insulted the defendant Montgelas," and so and so forth. Who was it who told you that?
A It was put to me that Montgelas insulted from the presiding judge -
Q Witness, who put that to you? Is it correct that the person who interrogated you did?
A Yes, I was asked about that, of course, otherwise, I couldn't say so in the transcript of that interrogation, certainly voluntarily I -
Q Weel, witness, you mentioned in that, that the way this case was handled was really political murder.
A Well, that was my impression really.
Q Is that your new statement --your own words; was that the way you expressed that?
A That is hard for me to tell today, whether I used those words, but in a sense I definitely had that impression.
Commission 111 Case 111
Q Witness, when you discussed the case of a man by the name of Gottfried, and you say in your affidavit that Gottfried was charged with having prevented a Volkssturm group from going into action against the Americans. Did you attend that trial?
A No. The trial to my knowledge took place on a Sunday.
Q I only asked whether you attended the trial.
A No, I did not attend.
Q Where did you obtain your information then?--As to the facts?
A I heard that from the relatives of Gottfried, because these people weeks after the execution came to me and asked me what happened to the body. I told the people I did not know anything about the matter, and then they told me the whole story; and then I said I did not attend the execution; and, therefore, could not tell you where the body might be; and the people left my house. They came back after a few weeks with the same inquiry, and I told them I can only repeat to you what I have told you already: I did net attend the execution; I was net there; I do not know anything about it, but probably the body was brought to the southern cemetery; and then they told me, they had asked everybody everywhere, and everybody told them that the body was nowhere to be found. Then I told them if that doesn't lead to anything, go to the Military Government, may be they can help you. Whether or not they did that I do net know, because I have never seen them again.
Q Witness, therefore, if I understand you correctly, the only information obtained by you was not from the trial itself, neither from the officials, but from what the relatives told you; is that correct?
A Yes. I still have to supplement this by saying that one day after the execution of Gottfried, that must have been the 16th of April, my superior, senior public prosecutor Schroeder told me when we went home, he told me about a case which had been executed the day before, Commission 111 Case 111 and that the name was Gottfried, and I said, but did not attend that.
Then he said, well, we did it nay way; we didn't need you.
Q Herr Huemmer, -
A Yes.
Q Do you happen to know whether during that trial against Gottfried two other people were indicted?
A I wouldn't know that. I only heard what I know from these people that more were indicted, apart from Gottfired, who were not sentenced.
Q Did you hear anything or find out anything from records as to whether the defendant Oeschey was present at the execution against Gottfired?
A No, I wouldn't know anything about that.
Q Then, there was a case Wahlrapp which you described, the owner small store, who was sentenced to death for certain statements she had made regarding Reichersdorf, or something like that. Witness did you attend that trial?
A No. I only attended the execution.
Q Only the execution. And where did you obtain your information about that case?
A That I know from the files, I saw the files, yes, but I was not present at the trial.
Q You state here about the defendant Wahlrapp that she was sentenced to death by Oeschey.
A Yes.
Q If I understand you correctly, you mean she was sentenced to death by the Standgericht.
A Yes, of course.
Q Who belonged to the Standgericht then?
A The then inspector Haberkern, District Inspector Haberkern; a major from the armed forced; I don't recall his name.