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.
Commission 111 Case 111
Q Those were the name associate judges who was presiding?
A Oeschey, the chief district Court.
Q There was nobody else there?
A The representatives of the prosecution--senior public prosecutor Dr. Schroeder.
Q Then, you mentioned the case of Studienrat Popp.
A Yes. I remember that later his name was not Popp, but it is spelled R-U-P-P. I have a friend by the name of Popp, and I mixed that up.
Court No. 3, Commission III.
A. I remember that letter is not important, but he spells his name Rupp, R-u-p-p, and I have a friend by the name of Popp and because those names are very short I mixed that up.
Q. Were you present at that trial against Rupp?
A. Maybe for a few minutes, I am not sure about. I am no more sure about it, but I remember the contents of the file.
Q. You mentioned a slap to a soldier, witness?
A. Yes, it may have been the other way, too.
Q. What do you mean by that?
A. Well, that the slap was not received the soldier but by Rupp, but any rate, there was something about a slap.
Q. It may have been that the soldier slapped Rupp?
A. That may have well been. I do not know that for sure. All I know is that Rupp was the gentleman at Fuerth in a secondary school, and because that gentleman had nothing to do at that time, they were used for other services, and he was with this housing office in Fuerth.
Q. Witness, one moment. You do not know for sure any more whether Rupp slapped the soldier or the soldier slapped Rupp?
A. No, not for sure, I could not say.
Q. But you said in your affidavit, you assert in your affidavit that the slap meant death for Rupp?
A. Yes.
Q. Well, but if the soldier slapped Rupp, that could not have been the cause of the death sentence could it?
A. Well, there were other things that played into this.
Q. What for instance?
A. The statements which Rupp made or may have made to the soldier, and the whole conversation which led to the slap. Who was the recipient of it, I could no longer tell whether it was Rupp or the soldier.
Q. Then, you could not maintain that statement, that the slap meant death for Rupp?
A. Well, the slap alone, no, but his entire attitude.
Q. Can you still remember whether Rupp tried to keep a soldier Court No. 3, Commission III from conducting his military duties?
A. Well, the way I remember it, Rupp said he would much rather be in a coffee house or an inn drinking some wine and smoking a cigar than do what I am doing now, because he was supposed to assign an apartment to somebody.
Q. Do you mean for reasons of that statement somebody was sentenced to death at that time?
A. Oh, yes, that was quite sufficient.
Q. Well, I believe we do not have to discuss that case any longer. You mentioned another case of Valentine Witrak, apparently caused by illicit food trading; is that correct?
A. If I have said so, I am quite sure it must have been like that. I do not remember the details any more, but what I have said I can maintain, if that is the way I said it, it must have been like that.
Q. Excuse me, witness, what you said at that time in your affidavit you could only have stated from memory, and maybe you still have that memory today?
A. Yes, I do have it.
Q. Therefore, in my question, you cannot refer me to your affidavit but I should like to hear from your memory what you know about it?
A. Yes, I see, now, as always, my memory, I did not add anything and I did not withhold anything, because I realize the meaning of an oath.
Q. Were you present at the trial of Valentine Witrack?
A. I do not think so.
Q. Therefore, you know this case only from the files?
A. Yes.
Q. Do you still remember anything about the extent of the case?
A. Well, as far as I can remember it, there was trading of food ration coupons.
Q. Was there a large amount of goods?
A. That, I no longer remember. I do not think it was to the Court No. 3, Commission III.
extent as the black market we have today.
Q. Witness, then further you state literally and I quote: "It goes without saying, that even by this means, Oeschey did not stop the enemy as quoted in the law concerning the establishment of civilian court martial."
A. Yes.
Q. Do you happen to know the law about the introduction of civilian court martial?
A. No, for us, that came so surprising.
Q. Was that law shown to you when you were interrogated?
A. No, the law, it was not.
Q. How can you state then in your affidavit that Oeschey did not stop the -- "could not stop the enemy by that sentence, as it was stated in the law concerning the establishment of civilian court martial?"
A. Well, that was my conviction. We could not stop the enemy when the Wolkssturm was put into action, and when we had to push street cars out of their tracks in order to hold up the enemy, that was nonsense.
Q. Witness, I did not ask you whether that was nonsense or no nonsense, I asked you how you came to make a statement that anything like that was mentioned in the law concerning the Standgericht, the civilian court martial?
A. I do not quite understand that question.
Q. Have you not told me before, that everything you stated here, under oath, was made and taken upon your oath?
A. Yes, yes, indeed.
Q. Now, here you said something which opposed the contents of the law, concerning the establishment of the court martial, also which is not correct, as I am telling you now -- how did you come to make that statement in the first place?
A. That I cannot follow you here.
Q. The words which I have just quoted to you, did you invent those or were they written down for you?
Court No. 3, Commission III.
A. They were not written down for me.
Q. You wrote them yourself?
A. No, I did not write anything myself. I agreed with that; when that was written down, it was my conviction such as it was. I was convinced it was the truth.
Q. You, yourself, therefore, did not write anything?
A. No.
Q. You just signed what was written down?
A. Yes, I said it, but I personally did not write it down, and it was read to me, and I have read it, myself. I signed it because I told myself that you can take upon your oath.
Q. Witness, do you remember that there was a large number of new cases pending before the Standgericht?
A. I am not informed about that.
Q. Excuse me, you were the office manager of the Prosecution's office, were you not?
A. No, no, I was in charge of the office of the Prosecution in Nurnberg.
Q. Yes, the Prosecution's office in Nurnberg.
A. The Prosecution, itself, as far as I was concerned had nothing to do with the Standgericht.
Q. But, in the Prosecution's office, the charges were received there?
A. But, that did not go through my hands, that went directly to the Senior Prosecutor.
Q. But, witness, if you handled incoming mail, matters at that office had to go through your hands?
A. No, that is not correct, that came directly to the Senior prosecutor. I did not even see it.
Q. You mean to say, then, that as the man in charge of the office, the office of the Prosecution, you never saw any of those charges that were filed, that they came directly to the senior Prosecutor?
A. Yes, maybe a day or two later I may have seen them, but when they were received, I did not see them.
Q. In other words, you did see them eventually?
A. Yes, at times, but not always; cases in which I had something to do with the execution, I saw the files, but otherwise, I did not have the least to do with them.
Q. Now I am coming to the last sentence of your affidavit, and I should like to read that sentence to you also, you said literally: "Oeschey has rendered blood sentences at the request of the Gau executive office." Witness, do you know what connection and whether there was a connection at all between the Gauleitung and the Standgericht, the Gau executive office and the civilian court martial?
A. Well, in -
Q. Do you know anything about it?
A. From my professional functions, I do not know anything. I only know what was generally discussed, that everything had to go there, to the Gau executive office, to the Gauleitung before it came into effect.
Q. What do you mean by that witness; do you mean that the execution of any sentence of the Stangericht had to be approved by the Gauleitung?
A. Yes, indeed, I am convinced of that.
Q. And, then you also said that Oeschey had rendered blood sentences at the request of the Gau executive office?
A. Yes.
DR. SCHUBERT: That ends my cross examination.
DR. SCHILF: May it please the Commission, I do not have any intention to cross examine this witness Huemer, but I have to make a statement concerning the previous witness, Prey. The witness Prey after he left the court room was shown the famous basic decree about the transfer of prisoners to the Gestapo by Dr. Link. He was shown that by Dr. Link. The witness Prey told me just now that he had to correct the statement which he made a half hour ago. In fact he made a mistake Court No. 3, Commission III of one year in this case.
Therefore, the date was supposed to be shifted back one year. Therefore, I ask to be permitted by the high Commission to call the witness Prey again into the witness box so that the high Commission may hear this correction from him and I may add that also the witness himself would like to do so; therefore after this witness here is finished I ask the witness Prey to be called again.
THE PRESIDENT: You may recall him for the purpose of making a correction, if any, as to dates, and for no other purpose.
Are you through with the witness.
MR. KING: Just one question.
EXAMINATION BY MR. KING:
Q. Witness, do you know what position Haberkern held in the Franconia Gau during the time when the Standgericht was functioning?
Court No. III, Commission III.
A When the Standgericht he was in function, he was district inspector of the Party, and while at the Standgericht he was associate judge of the Standgericht together with a Major of the Armed Forces. And Oeschey, the three of them, constituted the court and made decisions about life or death of a defendant.
MR. KING: That is all, your Honor.
JUDGE BRAND: You are excused, Mr. Witness.
WITNESS: May I stay in the courtroom as a listener?
JUDGE BRAND: That depends upon the usual compliance with the rules which entitle people to enter into the visitors gallery. The Court will not take any part in that matter.
WITNESS: Yes, sir.
(The witness was excused.)
JOSEF PREY, a witness, resumed the stand and testified further as follows:
BY JUDGE BRAND:
Q Mr. Witness, we are informed that you wish to make a correction concerning the matter of some dates. Is that correct?
A Yes.
Q You may proceed to make it. Make it briefly.
A Through a defense counsel I found out that the secret decree was not of the year 1943 but of the year 1942, and that consequently the transfers into the concentration camps took place not in June 1944, for instance, but in June 1943, and so on. These dates have to be corrected accordingly.
BY DR. SCHILF:
Q Just one supplementary question. You told us before that the action was completed in 1943, and that only a few cases were pending the beginning of 1944, so that also as far as the end of the action is concerned, it would have to be shifted one year ahead - that is, 1943 to 1944.
A Yes.
Court No. III, Commission III.
JUDGE BRAND: You say the end of the action would have been in 1944?
A 1944 - the beginning of 1944.
JUDGE BRAND: Thank you. You are excused.
(The witness was excused.)
ROEDER, a witness, took the stand and testified as follows:
JUDGE BLAIR: 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 BLAIR: You may be seated.
JUDGE BRAND: Who is the cross-examiner?
DR. SCHILF: May it please the Commission - I beg your pardon, I was not informed that the witness Roeder would be brought now and therefore I do not have my Document Book at hand. I will have to apologize and to ask for the Document to be brought here. Since a midafternoon recess is expected shortly, may I begin to examine after the recess?
MR. KING: May it please the Commission, if it would be any help to Dr. Schilf we have a photostatic copy of the original affidavit here and he is privileged to use that if he wishes.
JUDGE BRAND: If you desire to wait until after the recess you may do so; otherwise you may proceed now. Suit yourself.
DR. SCHILF: I should prefer to be permitted to begin after the recess on account of some notes which I have also on my copy.
JUDGE BRAND: We will recess at this time for approximately ten minutes.
(A recess was taken.)
COMMISSION III CASE III
THE MARSHAL: The Commission is again in session.
DR. SCHILF: (Counsel for the defendants Klemm and Mettgenberg):
May it please the Commission, first of all I have to clarify a technical lack. Exhibit No. 46, NG-711, the affidavit of the witness Dr. Roeder, in document book 1-B, at the end of the German version, has an omission. I don't know whether this omission appears in the English version as well. Mr. King was kind enough to put at my disposal a photostatic copy of the affidavit, and I would like to suggest that this photostat be shown to the witness so that he can read those sentences aloud which are not contained in the German document book. It is only a question of a few sentences.
MR. KING: To be sure, we have no objection to showing the photostatic copy of the original to the witness. In fact, it is probably the most expeditious way of clearing up the omission in the German document books. It appears from the English text that the German was read by the translator and that the English version is complete. I might say in explanation that the omissions appear because the witness made corrections in handwriting of the typewritten original affidavit, and the translators, or rather, the typists of the German text, apparently did not take the time to read the handwriting of the witness in making the German copy.
DR. SCHILF: I shall now show the witness the photostatic copy.
(Document submitted to witness.)
EXAMINATION BY DR. SCHILF:
Q May I ask you to read starting at this point (indicating), including the handwritten notations?
A Yes. "The decree was...."
Q Witness, you have to read more slowly, and please speak into the microphone.