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.
Without any documentary evidence I cannot remember any details of the case, but what I have said just now is what I can tell you from memory.
Court No. III, Case No. III.
Q. The witness Huemmer furthermore mentioned the Rupp case, but in his testimony he was very vague. Please will you give us a brief account of that case?
A. The Rupp case was also a case where the defendant had been indicted for undermining of defensive strength. All I can remember is that Rupp in circumstances which I no longer recall had a conversation with a group of soldiers and at the beginning of that conversation he said, and the witness has corroborated that here, "It would be pleasant to go to a cafe now to consume a glass of wine and to smoke a cigaret." Next he made a few derogatory political remarks. One of the soldiers told him to stop making such remarks and Rupp thereupon made a speech to these soldiers, and as far as the meaning of that speech goes, he said it would be much wiser for them, the soldiers, to go home, to give up the struggle. Why were they being stupid enough to continue to hold out their necks? It was not worthwhile any longer. One of the soldiers hit Rupp over the head and that soldiers saw to it that Rupp was arrested. Those facts were established beyond all doubt at the trial. Several witnesses were heard. The remarks themselves and above all the fact that these remarks had been made to soldiers did not allow us to assume that this was a case of lesser gravity, and particularly not as -- and I don't think I make a mistake here -- Rupp was a political leader. Under the extra-ordinary wartime law the death sentence therefore was mandatory.
Q. The witness Eichinger, Prosecution Exhibit 150, mentions the Zippelius case. He was the defense counsel before the Civilian Court Martial in that case. What happened in that case?
A. Here Zippelius was a woman who had been indicted for undermining of defensive strength.
I cannot recall the remark which she was supposed to have made, but her remarks referred to Hitler and to giving up resistance. The prosecution witness was examined by me very thoroughly at the trial, and at the trial she somewhat watered down the testimony she had given during her interrogation by the Gestapo. The prosecutor, however, asked that Zippelius be convicted and be sentenced to death. However, in this case the court arrived at the conclusion that according to the remarks themselves and the character of the defendant, this was a case of lesser gravity. Therefore, the judgment said that the case had to be transferred to the ordinary courts.
Q. What other cases were tried?
JUDGE HARDING: If a case was transferred under these circumstances and the ordinary court came to the conclusion that it was a case of greater gravity, then did they execute this person who was transferred?
THE WITNESS: The ordinary court naturally was not bound by the view of the Civilian Court Martial, that is to say, it might well have happened that the ordinary court did not consider the case as being one of lesser gravity in which case the ordinary court would have had to pass the death sentence. However, I think that is merely a theoretical speculation. I don't think in actual practice that would have occurred.
BY DR. SCHUBERT:
Q. What other cases were tried?
A. There was the case of a looter, a plunderer. That was altogether a clear case and it was dealt with under Article I of the Public Enemies Law, and it was a case for the death sentence quite clearly. The defendant during one of the air raids -- I believe it was the air raid that was made in March, 1945, -- had looted from bombed houses and also from the street, and the things he had stolen were actually things that had been salvaged from damaged premises.
Another case which I remember was that of another woman, but I can't recall the name. That woman was indicted for undermining of defensive strength. The same facts were established as in the Zippelius case, and contrary to the view of the prosecution, the court arrived at the conclusion that this was a case of lesser gravity and therefore by it's judgment transferred the case to the ordinary courts.
In the same manner another proceedings for undermining of defensive strength against an elderly man worked out. I don't remember the man's name either, not can I remember any details concerning the remarks he made, but those remarks were always of the same nature and they always amounted to advising people to give up further resistance. In the case of this male defendant, too, the court assumed that this was a case of lessor gravity and therefore transferred the case to the ordinary courts.
Q. Do you remember the Dirscherl case?
A. Yes, I do. Dirscherl had also been indicted for undermining of defensive strength. He was a master shoemaker from Nurnberg. Before 1933 he had been an active politician. I think he was a member of the Economic Party, the Wirtschaftspartei in the Reichstag. With the local political agencies Direscherl was enjoying a rather unfavorable political reputation. He was denounced for having refused to sell shoes to a woman in a shop who had brought along her necessary coupons. It was alleged that he had told the woman that he had no shoes; she had better wait until the Americans arrived and then everything would change anyhow, and that remark was made the basis of the indictment for underming of defensive strength, but the case ended in an acquittal.
A thorough examination of the woman revealed no reliable basis for the man having made these remarks or for having meant his remarks to undermine the defensive strength.
Q. The Prosecution examined the witness Filbig, here in connection with the Gottfried case, transcript page 3351. Three defendants are supposed to have been involved in that case, and they were indicted for having removed tank barriers and for having obstructed the Volkssturm. Can you tell us something about that case?
A. What I remember of that case is the following. It is quite correct there were three defendants in that case, and they came from the same village. All three defendants were indicted for having aided and abetted the enemy, and in the case of Gottfried the indictment was also for undermining defensive strength. I can tell you from memory that Gottfried somehow on the way to some village or other was arrested by an American patrol. I can't remember any details. Together with him several other civilians were arrested and were taken into custody. A prison had been set up in the place by American troops. Gottfried was charged with having in the course of the interrogation to which the American troops subjected him made remarks which amounted to treason because he told them about the defense measures which had been taken in his own village. At any rate -- and that was the main point -- when Gottfried came back to his own village, he made remarks of an undermining nature and told people all sorts of things about the experiences he said he had, of the observations he said he had made during his brief period in prison.
Those details were nothing but pure inventions, but the consequence of his talk was that people in his village lost courage and near panic broke out. The final result was that the inhabitants removed obstacles of defense or did not obey defense orders. In removing those obstacles or refusing to obey orders for further defense, the other two defendants also had participated. As far as I recollect, those were roughly the facts of the case which were established beyond all doubt in the trial.
The final outcome of the trial was that Gottfried was sentenced to death while the other two defendants were acquited. The acquittal of the other two defendants occurred because they stated that in performing the action which in itself did constitute aid and comfort to the enemy they had been seized by the panic which had broken out due to Gottfried's doings in their village. They also stated that they had joined in the doings of the other inhabitants without properly realizing what their doings actually amounted to.
In view of the facts which had been established, it was impossible to refute these statements which those two defendants made and, therefore, there were doubts as to whether those two defendants had deliberately aided and abetted the enemy. Following the principle in dubio pro reo those two defendants were acquitted. Such mitigating reasons or such circumstances, however, did not apply in the case of Gottfried. He had quite intentionally and deliberately caused that excitement and that panic and that fright among the inhabitants.
Q. The witness Filbig testified here, transcript page 3356, that the proceedings against Gottfried and another two defendants had only lasted forth or forty-five minutes.
Now what do you say to that?
A. I believe that the witness Filbig has made a pretty bad mistaken. Even considering that there were three defendants who made full confessions, it would have hardly been possible from the technical point of view to conclude the proceedings which altogether were in keeping with the provisions of the Penal Code in a time of forty or fortyfive minutes. I can't tell you now how long that trial took, but I remember that I had set the trial for four o'clock in the afternoon and that as it was my custom I opened the trial on time. I also remember that it was just beginning to get dark, that dust was falling, when I went home. I, therefore, estimate that the trial must have lasted something between two and three hours.
Q. Were witnesses heard?
A. I can't tell you for certain. I believe that a police official was heard as a witness, but I wouldn't like to say that for certain.
Q. Filbig, transcript page 3362, testified that you had been present when the defendant was executed. Is that correct?
A. Filbig again made a mistake. I did not attend Gottfried's execution nor did I ever attend any other execution. However, I remember that the other two judges of the Civilian Court Martial did attend the execution. I refused to attend.
Q. Finally Filbig testified, transcript page 3353, that you had been particularly indignant because Gottfried had spoken so well of the Americans and that you had expressed your fury by Cynical remarks. What do you have to say to that?
A. Concerning the treatment which Gottfried had received from the American troops I did not say a word about, but in the context in which those events were discussed, Gottfried said that the American officer who had interrogated him had given him a few cigarets and some candy.
It was in that connection that I charged him with having lowered himself to bestraying his own compatriots for just a little candy and some cigarets. Naturally that remark was in no way directed against the American forces.
DR. SCHUBERT: May it please the Court, I have now concluded the direct examination of the defendant Oeschey.
THE PRESIDENT: When do you wish to put in the rest of your document books?
DR. SCHUBERT: I had meant to do that after the conclusion of the cross and redirect examination. I don't know whether the Prosecution -
THE PRESIDENT: Is that agreeable to the Prosecution?
MR. WOOLEYHAN: Yes, sir.
THE PRESIDENT: Very well.
Witness, may I ask you one question. Schroeder was the prosecutor before the Civilian Court Martial, was he not?
THE WITNESS: Schroeder?
THE PRESIDENT: Yes.
THE WITNESS: Yes.
THE PRESIDENT: He was the prosecutor?
THE WITNESS: Yes.
THE PRESIDENT: Who was his superior?
THE WITNESS: His superior in the Civil Court Martial was the Reich Defense Commissar.
THE PRESIDENT: That is all I wanted to know.
You may cross examine.
DR. KOESSL: Counsel for the defendant, Rothaug.
May I just speak for a few moments?
THE PRESIDENT: Yes. Yes, you may.
CROSS EXAMINATION BY DR. KOESSL:
Q. Was Rothaug a Gaustellenleiter?
A. Rothaug never was a Gaustellenleiter.
Q. Did he ever belong to the Corps of Political Leaders?
A. No, he didn't.
Q. What do you have to say about the testimony by the witness, Ostermayer, to the effect that Rothaug and you during the consultations which Ostermayer attended had always ignored Ostermayer in his opinions?
A. I never noticed anything of the kind. Ostermayer at our deliberations always played a very lively part and participated in all discussions, and he had the opportunity to voice any misgivings or his own opinions or anything.
Q. What was Doebig's view of Rothaug according to what Doebig said to you?
A. Doebig several times spoke very much in praise of Herr Rothaug to me, and he said that he, Doebig, was gratified that he -- to put it in his own works -- had such an outstanding man as a judge at the Special Court.
Q. And now a last question, witness. Did Rothaug work for his assistants? Did he aid and assist them?
A. I can answer that question definitely in the affirmative. I think that the most pleasant human quality of Rothaug was his friendship for others, his behavior as a comrade.
THE PRESIDENT: Is there any other direct examination? It appears that there is none.
You may cross examine.
CROSS EXAMINATION BY MR. WOOLEYHAN:
Q. Mr. Oeschey, in connection with your alleged reluctance to pass the death penalty, you cited examples of where you had avoided doing so. One example that you cited to the Court was this case involving theft from the wool garment collection. I believed that was the Guenter case. In that connection I hand you a document. On page 21 of the file which is part of the Opinion do you find the following statement as part of your opinion in that case: