JUDGE BRAND: Is that the next to the last paragraph?
DR. SCHILF: Yes.
JUDGE BRAND: About the nullification?
DR. SCHILF: Yes.
THE WITNESS: "I have been asked how the petition for nullification of the Senior Public Prosecutor at the Reich Supreme Court was obtained legally." That "legally" seems to have been put in by the typist. "In this connection, I am only able to state that, according to regular procedure, the chief of the local prosecution, thus, in Nurnberg, the Senior Public Prosecutor at the District Court of Nurnberg-Furth, in the cases with which I was concerned--Oberstaetsanwalt Schroeder--would, sent the documents, with an appended suggestion to use the petition for nullification, first to the Chief Public at the Court of Appeals, during the last years Generalstaatsanwalt Bems, and from there to the Senior Public Prosecutor at the Reich Supreme Court.
"According to the text of the law, the petition for nullification could also be applied to the advantage of the condemned. In one case, I myself filed a petition for nullification with the Chief Public Prosecutor at the Reich Supreme Court. I was informed, however, that there was no justification for the instigation of the petition for nullification."
DR. SCHILF: Witness, may I interrupt you at this point? From here on the text begins to agree.
JUDGE BRAND: That is identical to the English translation, with the possible exception of one word.
DR. SCHILF: Your Honor, it has been correctly translated in the English text, but our German document books do not contain it.
BY DR. SCHILF:
Q Now I am going to refer to the factual contents of your affidavit. This statement concerns itself exclusively with the problem of the nullity plea. Therefore, witness, I will ask you whether you consider yourself a particular specialist on this problem and fest yourself to be such an expert when, on 7 December 1946, you made that statement.
May I point out that the first part--I should like to say one half, the first half--is concerned with theoretical matters, that is to say, with the interpretation of the law. The remainder is concerned with facts. Furthermore, you refer to literature and also to decisions made by the Reich Supreme Court. May I ask you to give me your point of view.
A. On no account can I say that I am an expert or that I have special knowledge of the problem of the nullity plea. We defense counsel, generally speaking, do not have much time to devote ourselves to scientific problems. As a rule we deal with problems only when they have been brought to us by our practical work. Concerning the theoretical aspect of the nullity plea, I have never in my practice studied it, in detail, but when the nullity plea became topical, I examined the questions which a defense counsel has to investigate. When in December 1946 I was asked as to what I knew about the nullity plea, what I had to say about my knowledge of this matter, I mentioned the two cases cases which occurred in my practice. It seemed necessary to me, however, to give a brief introduction concerning the situation such as it was before the introduction of the nullity plea and such as I saw it after the introduction of the nullity plea. I read several decisions, but I would consider it conceit if I were to say that I possessed thorough knowledge of the problem of the nullity plea.
Q. Witness, in your practice you only came across two cases, isn't that correct?
A. Yes.
Q. In spite of your statement. Dr. Escher, I have to discuss one theoretical question with you. In your introduction such as you characterized it just now, on Page 2 under 2 of your affidavit, you have drawn a conclusion, that is a conclusion as to what the introduction of the nullity plea led to. You said, and I am going to quote literally: "The so-called nullity plea of the Oberreichsanwalt was created and thereby the basic legal principle, ne bis in idem, double jeopardy, was revoked and destroyed." As you made such far reaching statement on that point, I would like to hear in brief as to what at the time you deposited your affidavit you understood by the legal principle, "ne bis in idem", double jeopardy. I quoted you mentioned that principle twice. May I ask you to give a brief account to the Tribunal of your opinion as you held it at that time?
A. The principle of double jeopardy meant that a person on whom a legal verdict had been passed could not without new facts having emerged or without the conditions of Articles 359 and following of the Code of Penal Procedure applying, be retried by a court.
Neither the prosecution nor the defendant after legal sentence had been passed could demand a new trial unless the conditions such as they are laid down in the law were fulfilled. That is, for example, perjury on the part of a witness, the finding of new documents or similar fundamental new aspects. By that principle the possibility of the nullity plea was eliminated. And that and not more is what I believe to have stated in my affidavit.
Q. Dr. Escher, concerning the problem which, of course, is very involved, you have now given a brief statement about your personal interpretation of the principle of double jeopardy. That is your personal opinion, is it not? May I put to you the opinion of another legal expert on this principle, particularly with reference to the nullity plea , who said this -
MR. WOOLEYHAN: I object to the introduction of this document in the prosecution's case in chief. If the defense wants to introduce it, that is fine, but why read it into evidence now? A hypothetical question can be asked the witness if counsel so desires, but why put this evidenciary defense material in before the Prosecution has rested?
THE PRESIDENT: Let's hear your question stated again, please.
DR. SCHILF: The witness, though very briefly, which is difficult in view of the problem, has stated his opinion as to what he understands by the principle of double jeopardy. I want to put to him that another legal expert concerning in particular the nullity plea held the view that for the maintenance of that principle, for the protection of that principle, for that very reason the nullity plea was introduced, and that was prived by passages from documents -
MR. WOOLEYHAN: I have no objection now, Your Honor.
THE PRESIDENT: We are prepared to say that is not cross examination, telling what some other author has said. That wouldn't be proper cross examination. It seems to me, speaking for myself, that it is a legal question that you can argue to the court without consulting this witness about while he is on the witness stand.
DR. SCHILF: Your Honor, may I say one word on this point. The witness deposited an affidavit purely on a legal question. For four pages he commented on the problem of the nullity plea. It was the prosecution who caused that. For the prosecution he is obviously the expert on the nullity plea. If the prosecution regards him as such, the cross examination ought to provide the opportunity to put to him a different opinion held by a different legal expert.
JUDGE BRAND: You have already asked this witness what his present view is on the nullity plea, and now you are merely seeking to tell him that some one disagrees with him. In that respect you are not cross examining at all. It would be my view that it is improper cross examination, r improper purported cross examination. I don't think any one questions your right to present, in a proper way, the view of your expert, in your own case, to be sure.
If you will pardon the suggestion, I assume that it would not be improper cross examination for you to ask this witness if he agrees with some principle which has been asserted by some other person. Perhaps if you follow that procedure you may got to the end result which you seek. But a mere statement to the witness of what someone else claims to be the law is still, in my opinion, quite improper.
DR. SCHILF: I would now like to put the question, and I would ask whether the prosecutor has an objection to my question. I have not yet put my question.
MR. WOOLEYHAN: I merely suggest, in line with what the Tribunal said, that you ask the witness what he thinks of what this man said.
DR. SCHILF: Witness, concerning your opinion on the principle of double jeopardy, your view that principle was eliminated by the nullity plea, will you maintain your opinion in the face of what I am going to read to you now? It is a paper by Oberreichsanxalt Retzer, Leipzig, published in Deutsche Justiz, Volume 1941, No. 20, Page 562. I quote:
"It is doubtful whether the nullity plea is possible if the violation of the law which occurred refers to a condition of tho trial. It is undisputed in the case of a violation of the principle of double jeopardy. The Supreme Reich Court in a great number of cases revoked sentences where the principle f double jeopardy had been violated."
That is the end of the quotation. To make it clearer, the Supreme Reich Court revoked those decisions by way of the nullity plea, and four cases are quoted and the file numbers are given. My question: now that I have read this to you, do you maintain your opinion?
A. May I say briefly: the nullity plea could only bo made by the Oberreichsanwalt, but not only against the defendant but also in favor of the defendant. It was, therefore, altogether possible that the Oberreichsanwalt, if he considered a verdict unjust, should use the nullity plea in favor of the defendant. Such a case does exist, even if through certain circumstances or errors a man is sentenced twice for the same crime by different courts, which happened occationally because, for example, it wasn't known in the case of a Nurnberg case that this man had already been sentenced in Berlin. When that was revealed, the Oberreichsanwalt naturally could make use of the nullity plea in favor of the defendant. Such cases evidently are discussed in the decisions which my colleague has just put to me. In those cases, the nullity plea was a blessing and worked in favor of the defendant, but in most cases, or at least in very many cases, the nullity plea was used without any new facts or conditions, according to Article 359 by the Oberreichsanwalt against the defendant.
Q. Witness, the essence of what I put to you is this: you said by the nullity plea, the principle of double jeopardy has been destroyed, and the other author says that the nullity plea was in fact to protect that principle. I wanted to ask you whether you maintain your opinion, and you have not answered that question as yet.
A. I am of the opinion that the question, the way it is put, contains a little misunderstanding in so far as the Retzer Exxay deals only with one special case of the nullity plea where it was made in order to revoke decisions which had been made by violation of the principle of double jeopardy. Naturally, the principle of double jeopardy was not expressly eliminated, by so many words, but the effect of the introduction of the nullity plea was that a man on when a legal sentence had been passed without new facts or circumstances having come to light could be retried by a court. Sometimes it could operate in his fever, but in the majority of cases it wont against his interest, in my experience, that is.
Q. Witness, we will leave the subject. Evidently your opinion differs from Mr. Retzer's riews on the principle of double jeopardy. And not I have a last question.
MR. WOOLEYHAN: It pushed me so far, but this is argument.
THE PRESIDENT: Yes, that last statement.
MR. WOOLEYHAN: I'd like that to be stricken.
THE PRESIDENT: Yes, it will be stricken. That is an affirmative statement by way of argument and not a question.
DR. SCHILF: Your Honor, I would ask you to forgive me. I know it was in fact an argument, but I wanted to conclude the subject with an argument.
BY DR. SCHILF:
Q. Witness, a last question, which does not affect me personally, but which I think is necessary for the purpose of clarification. Did the Oberreichsanwalt at the People's Court have an opportunity to make the nullity plea?
A. As far as my information goes, I believe that the Ober reichsanwalt at the People's Court, contrary to the Oberreichsanwalt at the Supreme Reich Court, had nothing whatsoever to do with nullity pleas.
But I would like to say that I have no experience at all with the people's court because I never acted as a defense counsel before the people's Court. But from my general knowledge of affairs, I believe I can say that the Oberreichsanwalt at the People's Court had nothing whatsoever to do with nullity pleas.
THE PRESIDENT: The witness may be excused. Is there any further business before the court? If there is no other witness available we will therefore adjourn at this time until next Tuesday morning at none-thirty.
(The Tribunal adjourned until 27 May 1947, 0930 hours)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 27 May 1947, 0930-1630, Justice Marshall presiding.
THE MARSHALl: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Marshal, you will please ascertain if the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused temporarily at his own request. Please make the proper notation.
Produce the witness, Mr. Marshal.
THEODOR PFAFF, a witness took the stand and testified as follows:
JUDGE BRAND: 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 pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BRAND: You may be seated.
DR. KOESSL (For the defendant Rothaug): May it please the Tribunal the witness Pfaff is to be heard on the affidavit which can be found in Document Book 3-E as NG-634 and Exhibit No. 187; that is in the German Document Book on Page 138.
THE PRESIDENT: Proceed.
EXAMINATION BY DR. KOESSL:
Q Witness, will you please give your full name and your occupation?
A Pfaff, Theodor, Amtsgerichtsrat, retired, at Nurnberg.
Q Witness, in your affidavit you mention that Rothaug did not tolerate any criticism of measures taken by the leadership of the State, and that in that regard he was unrelenting. Did you experience one case where Rothaug had denounced anybody on account of a matter of that kind or would have initiated proceedings?
A No, I do not know of any such a case.
Q You mention that Rothaug's manner of conducting proceedings was not objective. Did you make any observations to the effect that the irritability of Rothaug was caused by his condition of health and by the fact that he was overburdened with work?
A Well, Rothaug at times had toothache because he had very bad teeth, and he had a swollen face from this. At times I had the impression that the fact that he was particularly severe to defendants during the session at such times could be explained by that.
Q Did the thoroughness of the investigation suffer from that?
A No, Counsel.
Q Do you know of a case where Rothaug would have put different facts as the basis of the judgment than those that evolved from the trial?
A No, Counsel, no case of that kind is known to me.
Q You reported that during your activity with Rothaug, you had to present drafts of sentences which Rothaug sometimes changed -- concerning their structure, the expressions. Do you mean to say that in cases of such corrections the facts were changed?
A No, I wouldn't say that.
Q You also speak about the Eisenhofer case. Is it possible that in the Eisenhofer case, the expert in the main trial, as well as in his written opinion, considered the defendant fully responsible for his act, and that only when the sentence was pronounced, Paragraph 51, Section II was put in by mistake?
A Well, that possibly exists; I entered my notes in the little book, but these little books, the journal of the sessions, were burned when my apartment was burned out so that I am can not state anything precisely, but the possibility exists.
Q In the cases of Poles, with which you were connected, were you of the opinion that these Poles worked in Germany voluntarily?
A Indeed, counsel, I was of the opinion that the Poles worked in Germany voluntarily for a .....
MR. WOOLEYHAN: If the Court please, I object to the question on the ground that it asks for an opinion of the witness, and to which no foundation has been laid, and he is not qualified to testify unless it is a matter of common knowledge.
TEE PRESIDENT: Objection sustained.
DR. KOESSL: Then, I have no further questions.
EXAMINATION BY DR. SCHUBERT: (Attorney for Defendant Oeschey.)May it please the Court, I am referring to the affidavit in Document Book III-I, NG-635, Exhibit No. 235.
THE PRESIDENT: Does any affidavit of this witness appear at that place?
DR. SCHUBERT: The affidavit of the witness Pfaff -- Dr. Theodor Pfaff -- appears on page 93 of the English document book.
Q Witness, during your activity with the Special Court you also worked with the defendant Oeschey.
A Yes. That is correct.
Q Until what date were you with the Special Court?
A I was with the Special Court until the end of October, 1944, and I was drafted -- inducted in November 1944 into the army.
Q And what was your position at the Special Court?
A I was associate judge at the Special Court, and also further appointed deputy presiding judge; that was primarily for cases of less importance.
Q During the period from the 1st October, 1943, who was the presiding judge?
A October 1943 -- I think that Oeschey was presiding judge.
Q Oeschey was -- and who was the first deputy?
A Ferber.
Q And you were the second deputy?
A Well, in my case I was only another deputy -- it was only said a further deputy; another deputy; they didn't say second deputy.
Q Witness, during the period before Oeschey became permanent presiding judge, and afterwards, you frequently were associate judge in special sessions?
A Yes.
Q Could you note at any time that in verdicts on cases with which Oeschey dealt, different facts were stated than those which according to your opinion evolved from the main trial?
A You mean, counsel, that different facts were stated in the sentence than had been established in the main trial?
Q Yes.
A No, I can't remember that.
Q Were the sessions with Oeschey presiding judge, were they conducted thoroughly and tried to establish the main points?
A Yes.
Q Dr. Pfaff, then in your affidavit you discussed the treatment of foreigners, and first you speak about the Wdowen and Kaminska cases.
A Yes, I have a recollection of it. Of course that was quite a number of years ago.
Q Yes, I understand that. Still, in your description of the case you stated that Kaminska had a struggle with a soldier -- exchanged blows with a soldier; and then you mentioned the incident of her throwing a stone. I just want to ask you if you can recall it -that after the blows Kaminska took an axe and raised it up; can you remember that?
A It is possible, but precisely I cannot remember it any more, but it should be possible to find that from the files.
And in the case of Wdowen you only described the facts concerning the efforts made when Kaminska was arrested to free her by holding on to her; do you still remember that Wdowen also took part in the struggle with the soldier?
AAt the moment I can't remember that.
Q At the time I presume you had to deal every now and then with cases of Poles, you probably got an impression of the jurisdiction of the Reich Supreme Court in cases of Poles.
A Yes.
Q Would you call that jurisdiction very severe?
A Yes, the jurisdiction of the Reich Supreme Court was very severe; that can be seen from the sentences which were published; also from the judges' letters, and from other decisions which were published.
Q Do you still remember that the Prosecution in this case wanted a defense counsel to the be appointed?
A That I cannot remember any more.
Q Then, I want to refer to the Michael Schmidt case; if I may remind you it is the man with the 229 fly-papers. Dr. Pfaff, you criticized the verdict in your affidavit since the value of the stolen goods was so little. I should like to ask you, can you remember that at that time the jurisdiction of the highest courts was to the effect that it was less a matter of value of the stolen goods, but the personality -- the character -- of the culprit, was what counted?
A I believe I can remember; of course quite a number of years have passed, but I believe that the jurisdiction of the Reich Supreme Court became more and more severe, and did consider the personality, the character, of the culprit more and more, but I do not know individual decisions any more -- too many years have passed since, and I have been a prisoner of war.
Q In the case of Irmgard Hoffmann there was an examination for the mental capacity of the defendant after she had already been sentenced under Oeschey, as presiding judge, the Special Court rejected the plea for re-trial by the defense counsel, and now I come to the point about which I want to ask you: Then, against that decision which rejected the plea for re-trial, the defense counsel of Irmgard Hoffmann immediately launched a complaint, and upon that complaint Oeschey did not come to any decision of the court, but only pointed out to the defense counsel that that immediate complaint was inadmissible.
MR. WOOLEYHAN: If the Court please, I object to this method of examination; I object to the reading from Counsel's notes certain facts he wants to appear in the record. The witness has not testified to these things; let him ask the witness and have the witness testify, but not read from whatever he has prepared here.
THE PRESIDENT: I thought he was reading from the affidavit.
MR. WOOLEYHAN: No. I was following the affidavit, and he is not reading from the affidavit.
THE PRESIDENT: Objection overruled.
DR. SCHUBERT: May it please the Tribunal, may I state my point briefly. I could have read from the affidavit, I only wanted to simplify the matter, and, therefore, I have summarized from the affidavit those points which are important, in order to be able to put that question to the witness which refers to his affidavit, I merely intended to shorten the procedure, simplify matters.
THE PRESIDENT: Proceed with the question.
Q Dr. Pfaff, you have criticized, in your affidavit, the fact that Oeschey without coming to a decision of the Special Court, himself rejected the immediate appeal. Please do not answer yet. I should like to put the file to you. One moment. Would you care to read that notation.
A The notation reads: Roman numeral I - Complaint is inadmissible, will not be admitted. Roman numeral II -
MR. WOOLEYHAN: One moment witness. Your Honors, I object to these questions and answers. I have no notion what the witness holds in his hand. It has not been identified. No foundation has been laid. I suggest some foundation be laid from which he is now reading.
THE PRESIDENT: We should, of course, know what this document is from which he is reading.
DR. SCHUBERT: May it please the Tribunal, it is the original file obtained -- the case "Irmgard. Hoffman", which upon my request, I received from the Prosecution, from the office of the Prosecution.
MR. WOOLEYHAN: That file, your Honors, is a matter of evidence and argument on the part of the defense or possibly by the testimony of the witness.
THE PRESIDENT: I do not have the advantage of having this affidavit before me. I do not have this book on the bench, but I assume that this is the case he referred to in his affidavit, is it not?
MR. WOOLEYHAN: Yes.
THE PRESIDENT: Let the witness state whether this is the file in the case Counsel in now inquiring about; then we will have better knowledge as to whether it is competent or not.
Q Witness, are these the files about the case of which you have spoken in the affidavit?
A Yes, the files of the case to which I referred.
Q May I ask you to return them to me.
(The file was returned to Dr. Schubert.)
Witness, you stated Oeschey had rejected the immediate appeal. Is that what you have read -- a formal rejection of the appeal?
A I was of the opinion that the appeal should have gone to the Penal Chamber - "Strafsenat". The Penal Chamber would have to decide it.
Q If I understood you correctly, your criticism in your affidavit, was based upon your assumption that Oeschey, should not have decided that alone, but should have brought about a decision of the District Court of Appeals?
A The Penal Chamber or the District Court of Appeals, in my mind should have had to decide that.
Q Dr. Pfaff, do you know that against decisions of the Special Court, generally a legal remedy was not admissible?
A True, against the decisions of the Special Court, no appeal was possible, but I thought here we were confronted with a retrial, the reopening of a trial, which would have been a separate procedure, and that is why, in my opinion, the appeal should have been decided by the Penal Chamber.
Q Are you convinced now that the matter did not have to be forwarded to the Penal Chamber?
A Well, I am not convinced because the matter of jurisdiction of competence, has to be clarified. Maybe there are some decisions on that problem to be found somewhere.
Q Dr. Pfaff, you also mentioned a case "Koch", where Koch, and that is what you are objecting to, was sentenced to death, although he had caused only loss of money. Can you confirm that the jurisdiction of the Reich Supreme Court in later days also considered acts which caused only the loss of money as meriting the death penalty?
A I have said already that the jurisdiction of the Reich Supreme Court became more and more severe.
Q On this point also?
A Yes, generally speaking, considering the evaluation of criminal acts by habitual criminals.
Q Witness, in political cases, in so-called "Heimtuecke cases", cases of malicious intent and malicious acts, were you also associate judge in Oeschey's cases?
A Yes.
Q Do you have any knowledge as to how he treated those cases? Was he more severe or did he try to be more lenient in certain cases?
A I remember one or two cases where people were indicted whose acts could have been evaluated on the basis of the undermining of military strenght, and that in these cases, Oeschey said we are not going to transfer that to the People's Court because then, he might get many years of a penitentiary sentence. I remember that in one or two cases, he wanted to see these cases treated under the paragraph of malicious acts and did not want to have these cases transferred to the People's Court.
DR. SCHUBERT: I have no further questions.
THE PRESIDENT: Any re-direct examination?
MR. WOOLEYHAN: No, your Honor, we have not.
THE PRESIDENT: This witness may be excused.
(The witness was thereupon excused and withdrew from the courtroom.)
Kurt Hofmann, a witness, took the stand and testified as follows:
BY JUDGE BLAIR:
Q Hold up your right hand and repeat after me this oath.
I swear by God, the Almight and Omniscient, that I will speak the pure truth and win withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may sit down.
EXAMINATION BY DR. KOESSL: (For defendant Rothaug) May it please the Tribunal, the witness Kurt Hofmann is to be heard about his affidavit which is contained in document book III I, it is document NG 654, exhibit 234.
Q Witness, will you please give your full name and your occupation?
A Kurt Hofmann; Public Prosecutor, retired.
Q How long were you with the Special Court as Public Prosecutor when Rothaug was presiding Judge?
A I was Public Prosecutor from the 1st of December 1940 until the end of October 1942; that is about two years.
Q It can be seen from your affidavit that you criticized in particular the extent of punishment under Rothaug?
A Yes.
Q One moment, please. Did it occur that Rothaug during sessions when you were the Prosecutor, distorted the facts in order to be able to justify the application of a more sever law or more severe paragraph of the law?
A No, I did not make experiences of that kind. During the sessions when I acted as Prosecutor, I never had an opportunity to find out that he had any intentions to establish incorrect facts in order to be able to apply a more severe law.
DR. KOESSL: Thank you. I have no further questions from the witness.
DR. SCHUBERT: (for the defendant Oeschey): May it please the Court, I am going to deal with the same document and I would like to put some questions concerning this document to the witness. Exhibit 234.
Q Dr. Hofmann, until when were you with the Special Court in Nurnberg?
AAs I have stated already, I was Prosecutor at the Special Court at Nurnberg, until the end of October 1942.
Q Then you did not personally experience the time when Oeschey became presiding judge of the Special Court.
A No, I was not there then.
Q Is it accurate to say that during the period when you were at the Special Court the sessions in individual cases were assigned to Oeschey by the then presiding judge, Rothaug?
A That is correct.
Q Did you attend many sessions under Oeschey?
A Not too many, because the number of cases in the beginning was not so high; the number of sessions under Oeschey may have been somewhat less than those under Rothaug, but I could not make any precise statements in this respect.
Q Now, concerning the defendant Oeschey - I also want to ask you whether it appeared to Joe Oeschey's intention to make the facts appear as they truly were, and to investigate the true facts in the main trial?
A Yes, that I can say. Oeschey, as well as Rothaug, attempted to investigate the true facts in the main trial and have not made any attempts which would have led to the application of more severe laws by intentionally changing the impression of the facts.
Q In your affidavit, therefore, you did not intend to express that in the two cases width which you deal later - Hahn and Pritschet - the defendant Oeschey tried to defeat the purposes of the law?
A That, I have not stated in my affidavit.
DR. SCHUBERT: I have no further questions.
THE PRESIDENT: Has the prosecution any redirect examination?
MR. WOOLEYHAN: No, your Honor.
THE PRESIDENT: This witness may be excused.
(The witness was excused)
DR. BEHLING (for the defendant Schlegelberger): It is now the witness Markl.
HERMANN MARKL, a witness, took the stand and testified as follows:
JUDGE BRAND: 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 pure truth and will withhold and add nothing.
(The witness repeated the oath)
JUDGE BRAND: You may be seated.
DR. BEHLING: I should like to question the witness about the affidavit of 23 January 1947, NG-681, Exhibit 154, from Document Book 3C. The affidavit is in that Book on page 71 in the German text, and 73 in the English text.
EXAMINATION BY DR. BEHLING:
Q Witness, will you please first tell the Court your name and your personal data?
A Markl, Hermann, born on the 8th of June 1909, at Radeldorf. Prosecutor. Retired. I live now at Argelsried, No. 19. Married.
Q In your affidavit, on page 75 of the German Document Book, you mention that you had reported concerning the case Katzenberger to the Ministry, and that you received the answer that if Rothaug intended to proceed against Katzenberger as described that would be approved. May I ask you, witness.... When did you report, and to whom did you report?
A The case Katzenberger, from the outset reports were made because it was one of those cases where an obligation, a duty, to report existed. The first indictment which was already sent to the Penal Chamber had to be submitted.