I am sorry, Your Honor, I have already submitted this document as Exhibit No. 59. This document, List 132, has already been submitted as Exhibit No. 59, and I would now like to read the last paragraph from this affidavit, because from this it can be seen in which way this order of the OKW dated 16 September was distributed. This is the last paragraph on page 38:
"I know the directive of the OKW, Armed Forces Operational Staff of 16 September 1941, entitled, "Communist rising in the occupied territories". I do not know any more, on what day it arrived at the headquarters of the Staff of the Plenipotentiary Commanding General in Serbia, but I believe that the latter received an original copy of this directive from the OKW, either immediately or through the Wehrmacht District Commander Southeast."
That this OKW order dated the 16th of September was a direct order for the Commanders can be seen from List Document 203, which I have already offered as Exhibit No. 43.
I would like to read a short paragraph from this exhibit which I have not yet read. It is contained in Document Book 4b, page 175, -I am sorry, page 173. I read about the middle of the page the following entry:
9 Oct. 41 The Chief of Staff of the Armed Forces High Command, Army Operational Staff, Department L IV Quartermaster, dated 16 September, No. 002060/41, top secret (military): Communist insurrection in the occupied areas of Moscow uniformly directed mass movement. Nationalistic circles are using the opportunity to make difficulties for the German occupation forces by joining the Communist rebellion: Immediately most stringent measures.....
I state here that this exhibit is an excerpt from the War Diary of the 6th corps. Now I would like to read the last paragraph, which is the entry from the 11 October 1941:
"Military Commander and Commanding General in Serbia: To suppress the Communist insurrection 100 men to be executed by shooting for each soldier killed and 50 men for each wounded. Public announcement."
The fact that this order of the OKW dated the 16th of September, was not valid in Croatia, I can prove from the entry on page 175 in the same document, under the 19th of October, 1941, where there is the following entry:
"The reprisal measures ordered to be effected in Serbia are not binding for Croatia. Passed on to 718th Infantry Division."
Field Marshal List protested against measures of the OKW many times and this I can prove with Document List No. 166, which becomes Exhibit No. 63. This is in Document Book 1, page 46. This is an affidavit by a Captain on Field Marshal List's staff, enophon Switlik. I read the third paragraph:
"In Greece, in the late summer of the year 1941, an officer of the immediate circle of List (I don't remember who it was) told me, that on occasion of a telephone conversation, List had received the directive by Keitel simply to hang captured gang members in Serbia, whereupon List had answered that he was not a hangman, but a soldier, and that Keitel should use other people for such purposes. If he, (List) would get more troops for Serbia, the activities of the bands could be checked better."
In this connection I would also like to offer to List Document No. 143, and this is offered as List Exhibit No. 64. It is in the same document book 1, page 47. This is an affidavit by General Serini, and I will read from the second paragraph onward:
"From 7 November 1939 until 5 May 1942 I was First adjutant of the 12th army, at first with the rank of a lieutenant colonel, and from 1 October 1940 with that of a colonel.
After the close of the campaign in the Balkans during the time before September 1941, I have often heard the officers of the general staff of the Army High Command 12, discuss in my presence that General Field Marshal List had differences with OKW concerning the attitude with regard to partisans. The colonel in the general staff, Kuebler, first officer of the general staff of the 12th army said that the ideas of the A.O.K. 12 concerning the actions to be taken against partisans had brought about controversies between General Field Marshal List and Keitel. I did not hear of any details, but the discussions revealed clearly, that the OKW considered the point of view held by the O.K.W. 12 not strong enough and it was no easy job for the A.O.K. to defend itself against that criticism.
In September 1941 or later the colonel of the general staff Foertsch chief of the general staff of the 12th Army, or his representative, colonel of the general staff Kuebler, talked about the OKW demanding the reports of the A.O.K. 12 to the OKW to states expressly that the partisans, on which the death sentence had been carried out, were hanged; the report that the death sentence had been carried out, was not sufficient for the OKW.
Foertsch, respectively Kuebler were indignant that the A.O.K. was to be compelled to order the troops to carry out hangings, since the soldier knows only the execution of a death sentence through shooting.
The question whether the OKW order dated 16 September was carried out completely is in no way shown. I would recall, first of all, testimony by the witness Krage, and further the evidence which has been submitted with regard to the case of Topola. According to this evidence 449 people were shot, and not 2,200 as maintained by the Prosecution.
With regard to this subject, I would like to submit further evidence that the OKW order dated the 16th of September, was not completely carried out. First of all I would like to read from List Document No. 29, which I have submitted as Exhibit No. 62. I would like to read the last part. The Exhibit is contained in Document Book 1, page 40. It is an affidavit by General Pemsel, and I would now like to read just the last sentence.
It is document book 1, page 40, the last sentence:
"As far as I could ascertain, this directive did not take effect until one or two captured German officers and 20 enlisted men of the army signal corps had been slain by partisans in a bestial manner, but it was never carried out to the full extent of the O.K.W.'s demand."
Then on the same subject I would like to submit List Document No. 331, as Exhibit No. 65. It is in Document Book 1, page 92. I shall read from the second paragraph onwards. This is an affidavit by Colonel Pfafferott, from the second paragraph:
"I have been a professional soldier since 1921; from December 1940 till the Spring of 1942 I was Major and third General Staff Officer (Ic) in the A.O.K. 12, from the Spring till the Autumn of 1942 I was in the commanding officers' reserve of the A.O.K. 12 with the rank of Lieutenant Colonel and from the Autumn of 1942 till the Spring of 1944 I was Chief of the General Staff of the XV (mountain) Army Corps, first with the rank of Lieutenant Colonel, since 1 January 1943 with the rank of Colonel; during all these three periods I was stationed in the Balkans.
The OKW received the more "cooked" reports from us, the more it became evident, that the OKW made a lot of fuss about certain formalities in the reports, without over checking them and without one single officer of the OKW knowing conditions in the Balkans. I can no longer remember details."
Further I would like to submit List Document No. 32, as Exhibit 66. This is contained in Document Book 1, page 93. This is an affidavit by General Pemsel, and I would like to read the last paragraph:
"To escape repeated questions and the permanent pressure of the OKW we consciously made cooked reports for transmission to the OKW. I can no more remember individual examples and figures."
It is signed, "Max Pemsel".
It is page 93 in the English.
Now I would like to turn to another subject. The Prosecution, according to the opinion of the Defense, has to bring evidence for Field Marshal List's knowledge of individual reports; on account of the position which he held one cannot assume that all incoming reports were submitted to him.
Now I would like to assume that one report was about shootings was reported to Field Marshal List. If this is a report about the shooting of partisans, then he could, as I will now prove, assume that this shooting was carried out after a proper trial.
For this purpose I submit now Document List No. 176, as Exhibit 67. This is in document book 3, page 25. This exhibit is an extract from the "Rules of Land Warfare", written by Dr. Alfons Weltzog.
MR. FENSTERMACHER: I object to this being presented in evidence. I think if it is offered at all it should simply be argumentation on the law, what the German law was, and what the instructions of the German soldiers were. It should be offered only for Judicial notice of the Tribunal and marked for identification, but not offered into evidence.
DR. LATERNSER: Your Honor, I am of a different opinion on this point. What I am now submitting, or what I would now like to submit, are the socalled Ten Commandments of the German soldier which he had printed in his pay book on page 2, if he was a member of the Air Corps, or was stuck in if he belonged to another branch of the Forces of war regulations, for all members of the Wehrmacht.
MR. FENSTERMACHER: Your Honor, if these instructions were a part of every pay book of every German soldier, I think the pay book bf a German soldier should be offered which is the best way of putting it in, and not putting in a commentator on the German rules of Loud Warfare.
DR. LATERNSER: I regret very much that I am not able to produce such a pay book. I can only state to the Tribunal that in the case of Kesselring when it was also disputed, I was able to secure such a pay book and I submitted 5 or 6 to the Tribunal.
The fact that this is an extract from semi-official work, written by Dr. Weltzog, in which the contents of these Ten Commandments are literally quoted, I think is sufficient. This verbal quotation has been taken by me from the book. It has been certified and submitted.
PRESIDING JUDGE BURKE: For what probative value it may have, it will be admitted.
DR. LATERNSER: I would like now to read this:
"Laws of Land Warfare", Dr. Weltzog, "Within the Wehrmacht of the Third Reich the soldiers have been made thoroughly familiar with pertinent regulations of international law through orientation, service regulations, and orders.
Every German soldier has in his possession as a memorandum the following "10 Commandments for the German Soldier's Conduct of War."
1. The German soldier is fighting in a chivalrous way, for the victory of his people. Atrocities and wilful destruction are beneath his dignity.
2. The combatant must be in uniform or equipped with insignia especially authorized and visible from far away. Fighting in civilian clothing without wearing such insignia is prohibited."
Now Point 3 is very decisive:
"3. It is prohibited to kill any enemy who has surrendered not even the partisan nor the spy. These will get their just punishment through the courts, 4. Prisoners of war must not be ill-treated or insulted.
Weapons, maps, and written notes are to be removed, but otherwise it is prohibited to take away any of their personal belongings.
5. The use of dum-dum bullets is prohibited. It is likewise prohibited to convert bullets into such types of projectile.
6. The Red Cross is inviolable. Wounded enemies must be treated in a humane way. Medical personnel and army chaplains must be free to carry out their medical or ministerial duties unimpeded."
"7. The civilian population is inviolable. The soldier is not permitted to engage in looting or wilful destruction. Historical monuments and buildings dedicated to divine worship, fine arts, science, or charity must be particularly respected. Services in kind or in labor by the population can only be required against compensation by order of superiors.
"8. It is prohibited to let military operations in any way affect neutral territory through trespassing thereon neither on the ground nor in the air through shooting.
"9. If a German soldier is taken prisoner, he has to state his name and his rank when questioned. Under no circumstances is he allowed to give any information about his unit or about military, political or economic conditions on the German side. He must not let himself be induced thereto neither through promises nor through coercion.
"10. Violations of the orders enumerated above in official matters is liable to punishment. Violations of the rules listed under No. 1 till 8 by the enemy must be reported. Retaliatory measures are permissible only by order of higher headquarters."
Then there is a certificate for the correctness of the extract.
As the next document to prove that Field Marshal List, in regard to the incoming reports about shootings, could assume that a proper trial had previously taken place, I would like to submit Document 179 as Exhibit Number 68. It is on page 27. This is again an excerpt from a legal work entitled "Military Jurisdiction during War" by Dombrowski. It is in Document Book 3, page 27, and has received Exhibit No. 68. This document is a decree by the Commander in Chief of the Army, dated 4 November 1939 (Collection of sources, Part I, Page 30).
"In the fight against franc-tireur activities the following viewpoints have to be considered:
"The conception as to what is a franc-tireur has been laid down unequivocally in No. 3 of the Special Military Penal Code. Franc-tireurs are, in the first place, persons not wearing uniform, who in some form or other participate in the hostilities and are not recognizable by distinct insignia as members of the armed forces of the enemy.
Among other acts the destruction of lines of communication, cutting of telephone lines, carrying out of demolitions are considered unjustified participation in the fighting.
"Franc-tireurs are to be shot in an encounter or when fleeing.
"Captured franc-tireurs are to be court-martialed. Competent therefor are primarily the Field Court-Martial to be convened by the Regimental Commanders etc. (Court-Martial No. 13 of the Decree concerning military jurisdiction during war and special operations). Captured franc-tireurs are not to be treated as prisoners of war but as criminals."
MR. FENSTERMACHER: (Interrupting) Your Honor, I object to receiving this into evidence unless it be shown or admitted that Field Marshal List received it and passed it on to troops subordinate to his command.
DR. LATERNSER: I am completely in agreement with this, if the prosecution does the same thing with regard to this point. The prosecution has never shown that Field Marshal List has received any of the submitted documents, and now they want to show that this be for the documents, which I submit. Your Honor, I am all for this procedure being carried out, if the prosecution does the same.
JUDGE BURKE: It is most reassuring when counsel for both sides agree so unanimously.
DR. LATERNSER: (Continuing:) "In order to insure that captured franctireurs will get the punishment they deserve without delay, the Regimental Commanders, etc. will convene about 3 Field Courts-Martial early before an operation. Composition and activities of these Courts-Martial are governed by the general provisions. They have to examine possible witnesses, hear the defendant and render the verdict reached by the majority. If the accused is found guilty of franc-tireur activity he is to be sentenced to death otherwise he is to be acquitted. The right to confirm the verdict lies with the Commander who has convened the Field Court-Martial. The confirmation in case of a verdict of "guilty" reads as follows:
"I confirm the verdict; the sentence is to be executed."
"Immediately following confirmation the sentence is to be executed by shooting."
I will not read the rest. The next document in this context which I would like to submit is Document List 177, and this becomes Exhibit No. 69. It is also contained in Document Book 3, page 38. This is an excerpt from the manual for General Staff service during War.' The correctness of the extract has been certified by me. I would just like to read a passage from it. Unfortunately I must withdraw what I have just said.
"B. Attitude toward Spies, Franc-Tireurs and Hostages. Military Authority in Occupied Territory. 9. The proceedings against Spies are laid down in international law in the second chapter of the Hague Rules on Land Warfare. Second Chapter. Spies. Paragraph 29. Whoever secretly, or under false pretenses, gathers or tries to gather information in the operational area of a belligerent with the intention of passing it on to the opposing party, is considered a spy."
I skip the next paragraph. Paragraph 30 follows, as follows:
"A spy caught in flagranti cannot be punished without prior trial."
Paragraph 31 states the procedure, and on page 40, under figure 10, you will find the following provision:
"Although obligation through International Law is lacking, the treatment of franc-tireurs follows that laid down for spies. The fact of a case is laid down in No. 3 of the Special Military Penal Code during War and death penalty has been decreed. The procedure, too, inclusive of the execution of the sentence has to follow the tedious way of the procedural provisions as laid down in No. 9 of the penal code, unless these elements meet with their fate in the fight itself."
According to Figure 10, therefore, Paragraph 30, which you will find on page 38, can also be applied to franc-tireurs. That is, the franc-tireur caught -- is not to be punished without legal proceedings, although there is no obligation under international law. In this connection I would like to present to the tribunal legal opinions by American legal authorities, who are of the opinion that the franc-tireur question can be settled in a summary procedure, and that the pre-condition of provisions under international law is not necessary.
And now I would like to submit document 171, Exhibit 70 on page 29, of Document Book 3. Page 29. It is on page 29, in Document Book 3, Document 171. It is an "information sheet for the regional commander", the Convening Authority. (Courts-Martial Procedure). I. In urgent cases every regimental commander, or Commander of an autonomous battalion, etc. can exercise the functions of a convening authority without limitations as to cases, in other words in all cases concerning demeanors and crimes. (No. 13 a of the Decree concerning military jurisdiction during war and special operations.
"Prerequisites. I. Compelling military reasons require immediate sentencing. That is particularly the case in offenses against discipline (for instance cowardice on the part of leaders or sub-leaders, severe violation of duties by troop commanders, abandonment of Wehrmacht property received in trust, in particular discarding or unauthorized destruction of weapons or other means of combat, mutiny, serious insubordination, assault against a superior).
"2. A convening authority is not available on the spot." Leave out the rest of that paragraph.
"3. Witnesses and other evidence are at the disposal immediately. (Culprit was caught in flagranti, confession, facts clearly established.) The Regimental Commander shall not burden himself with cases which require investigations for the purpose of convicting the culprit.
"II. When the prerequisites 1-3 are filled the Regimental Commander is not only authorized but obliged to act and to function as convening authority The courts-martial are to be used whenever danger is imminent or if it is to be feared that delay in the proceedings may cause a diminuation of the evidence (witnesses) or a covering up of the facts.
"III. The Regimental Commander authorizes an officer of the Judge Advocate's Division or another officer to serve the indictment orally.
"He convenes a Field Court-Martial.
"Composition:
"1. President.
An officer who is qualified for the office of a judge. If such an officer is not on hand, every other officer - if possible at least a Captain - can preside over the proceedings.
"2. Associates.
2 soldiers. (It is recommended to use 1 officer, 1 soldier of the rank of the defendant.) Selection to be conducted with care. The prosecutor or a qualified soldier are to make a brief Memorandum, if possible, of the proceedings.
"When possible sentence of the offense is death. Defense counsel is to be provided if possible. The proceedings are to produce thorough and unobjectionable clarification of the facts. The defendant must be hoard on the indictment and must be admitted to make a final plea. Oath for witnesses subject to individual decision.
"IV. Verdict based on the majority decision. Brief opinion to be rendered writing. As a matter of principle, the case is to be reviewed by the regular convening authority and or the higher commander. Death sentences, also against officers of every rank may be confirmed by the Regimental etc. Commander during a period of crisis, in particular in the fight against signs of disintegration, if the immediate execution is imperative for the maintenance of discipline and for the purpose of intimidation. Death sentences are to be executed before a troop formation. It is not compulsory to submit a judicial opinion.
"V. Action taken is to be reported to the convening authority; reports to be attached to the notice."
I don't need to read the next two points. I would just like to point out to the Tribunal that this memorandum for Regional Commanders is not provisions for a normal procedure, but for the summary court-martials in cases of urgency when speed is necessary and when the normal convening authority can not be reached.
The fact that action was always taken in this way I can prove by Prosecution Documents in Document Book III. From this compilation in this document you will see proof of my assertion that court procedures were ordered, first of all from Prosecution Exhibit 4 on page 32 of this book "Corps Order" in which sentence by summery court martial is provided. This can also be seen in Prosecution Exhibit 70 which I have included on page 33 of this document book. This is an order by teletype from Field Marshal List himself. In this connection I would like to draw the attention of the Tribunal to the first paragraph and the two figures quoted there. Further, I have included in this document book Prosecution Exhibit No. 76which is to be found on page 35 of this document book. This also provided sentencing by summary court martial. I am able to prove a case but for this point I have no other evidentiary material available but I hope to get some more later on.
I submit List Document No. 23 a as Exhibit No. 71. This is an affidavit by a company leader called Hausbacher and I would like to read the 5th paragraph. I am sorry; it is in Document Book I, page 85. I only want to read the 5th paragraph:
"While I was acting Ib I remember only the following isolated case where a person was executed by shooting: the mayor of the town of Iraclion had been twice found conspiring with the British. In consequence of this he was at the end of July or at the beginning of August 1941 sentenced to death by a summary court martial and was shot dead".
Passages in the prosecution documents that summary court martial took place, I have already pointed out while I have been reading the Tribunal will remember in a large number of cases it was reported. that so and so many people were shot after summary court martial. I have just dealt with evidence for the fact that Field Marshal List with regard to reports about the shooting of partisans was able to assume that a proper trial had taken place. This assumption does not, however, of course, apply when hostages were shot as reprisal because the reprisal does not need a trial, because trials only find out the guilty people while reprisals can also hit the innocent.
That is how reprisals are, in order to obtain the ultimate purpose of intimidation.
I would now like to submit evidence for the assertion of the defense that hostages may be killed as reprisals. I now submit List Document 250 as Exhibit No. 72. This is in Document Book V, page 116. This is in the American Rules of Landfare which I would like to read into the record at this point.
MR. FENSTERMACHER: If Your Honors please, this document goes to the law of the case which the Tribunal is presumed to know and that presumption being true I am sure the Tribunal would take judicial notice of it. It certainly is not evidence. I object to its admission as evidence.
PRESIDING JUDGE BURKE: The objection will be sustained.
DR. LATERNSER: Not only the American Army Quarters consider the shooting of hostages as reprisal as admissible but also the Russian authorities. I would like to submit Document List No. 123 as Exhibit Do. 73; I am sorry - 72. This document is contained in Document Book I, page 87.
MR. FENSTERMACHER: If Your Honors please, I believe it has already been introduced in the case of von Geitner.
DR. LATERNSER: I don't know that it has already been submitted.
PRESIDING JUDGE BURKE: I have no independent recollection. Well, if it has been introduced it may be received again and then no harm will be done thereby.
DR. LATERNSER: "Extract from Official Gazette of the City of Berlin. Issued by the City Council of the City of Berlin. To the Population of Berlin! 10 July 1945.
"Berliners! Hitler's war crime has plunged our native city into the worst catastrophe of its history.
Now there is only one way out: to clear away the rubble and the ruins by peaceful work and then to rebuild Berlin. Everybody trying to prevent us doing this is an enemy of the people, a person without conscience, who commits a crime against our homeland and against our wives and children. But there are still such criminal and misguided persons trying to prevent the return of calm and order against acts of madness."
PRESIDING JUDGE BURKE: Now that you read it, my recollection is refreshed. It has been introduced and it has been read into the record in the case of one of the other defendants. If you wish to call attention to that by exhibit number, there is no objection.
DR. LATERNSER: Well, then, of course, I won't read it. It is a threat of reprisal shootings in the ratio of 1 to 50. This order for Berlin was not only published in the official Gazette but was also published on the radio and in American newspapers. I would like to prove this in List Document No. 470 and this I would like to offer as Exhibit No. 73. This is in Document Book VII, page 11. It is an affidavit by Heinz Loechel and I would like to read from the third paragraph:
"From 25 April 1945 till 2 June 1945 I was a patient in the Air Force hospital 12-XVII. Bad Gastein/Austria, as a 1st lieutenant, because I had been wounded. From 4 June 1945 till 3 August 1945 I was a 1st lieutenant with the 2nd German Armored Army (disarmed German forces) holding an assignment as platoon commander with the 3rd company of the 5th Battalion, Motorized Regiment 9, serving under the US 10th Armored Division, in the area of Weilheim on Lake Starnberg in Bavaria.
In the period after the capitulation and before the beginning of the Potsdam Conference - unfortunately I cannot give a more precise date I read in a newspaper published by the American Army for the German population that the Soviet Russian Military Command of Berlin had established that several attacks by Nazis, Hitler Youth members, etc.
on members of the Red Army had taken place. They warned people from repeating such attacks, as, in the case of future recurrences 50 (fifty) members of the Nazi Party would be executed for each member of the Red Amy.
As far as I can recall, this report was also given over the radio stations of the military government.
The French also regarded shooting of hostages as admissible. In Markdorf in the French Zone they threatened shootings in the ratio of 1 to 30. As evidence for this I submit List Document No. 390 as Exhibit No. 74. This is in Document Book VII, page 1.
MR. FENSTERMACHER: Your Honor, I object to this on the ground that if there is such an order or such an announcement, that order or announcement itself should be produced as the best evidence rather than an affidavit on the subject.
DR. LATERNSER: Your Honor, I would like to state here that this is direct evidence of the man who, on orders of the French, posted and published this notice. That is, quite clearly, direct evidence.
PRESIDING JUDGE BURKE: The objection will be overruled.
DR. LATERNSER: This Exhibit No. 74 is an affidavit by Wilhelm Kappeler. I would like to read the third paragraph of this:
"From 1943 to 1945 I served with the auxiliary police in Markdorf. One day in the beginning of May 1945, when Markdorf was already occupied by the French, I received the order from Burgomaster Grieshaber to make a public proclamation in the village of an announcement by the local French commandant. The contents of the announcement were to the effect that 30 citizens of Markdorf would be shot if the criminal who had shot at a French soldier a few days before was not discovered."
As the next document in this case I would like to submit List document 400, as Exhibit No. 75. This is an affidavit by the town priest of Markdorf, Jakob Boch, who has the following to say about this case and another case. I read from the third paragraph onwards:
"On the 2nd of May " -
PRESIDING JUDGE BURKE: In what book?
DR. LATERNSER: This document is in Document Book 7, page 2. It is just the next page. I read from the third paragraph onwards:
"On 2 May 1945, when Markdorf was already occupied by the French, an announcement was made by the Local French commandant, towards the evening, by publicly crying it out to the population, that at the slightest hostile act on the part of the population 20 citizens of Markdorf would be shot.
"So far as I can remember, a poster with the same contents was placed on the cellar door of the rectory situated on the busiest street.
"I no longer remember what signature the poster bore."
Signed, "Jakob Boch, Clergyman."
In Markdorf, the French not only threatened, but also transformed the threat into action. Four or five people were shot. As proof of this, I submit document 410, and this becomes Exhibit No. 76. This is an affidavit by Wilhelm Kahles, living in Markdorf. I will read this affidavit, which is on page 3:
"I am a merchant by occupation and was Deputy Burgomaster until 1933 in Markdorf. After 1933, after I was removed, I was still frequently consulted by the Nazi Burgomaster Grieshaber in matters concerning the office of burgomaster. During the war I was 10 weeks in protective custody because of anti-National Socialist activity. I was always an opponent of National Socialism.
"On 29 April 1945, Markdorf was occupied by French infantry. The Commandant of the city was a French captain about 45 years old. I do not remember his name. Neither do I know anything in detail about the French unit (regimental number, to which army it belonged, etc.)
"About noon on 2 May 1945 Burgomaster Grieshaber suddenly came to my house and asked me in the greatest haste to go with him to the French Commandant. On the way he told me that a member of a French patrol had been shot at by a German soldier in civilian clothes whose papers failed to pass inspection. He said the German soldier suddenly reached into his pocket, drew out a pistol, and shot the Frenchman in the breast. The Frenchman was still alive. Grieshaber then informed me that because of this the French Commandant intended to have ten citizens of Markdorf shot, whom we two were supposed to name to him.
"At the Commandant's office Grieshaber and I declared that we would never name any fellow citizens to be marked for death. They could shoot both of us. The Commandant refused to do that and the interpreter told us that the matter was settled. I stepped up and expressed out thanks to the Commandant that none of our fellow citizens were to be shot. At the same moment the door opened and four men in civilian clothes were led into the Commandant's office accompanied by several French soldiers. They were German soldiers in civilian clothes who had been picked up by the French patrol.
They had their pay books with them and stated that they were guards from the Freudenstatt prison camp. They said they had been trying to reach their homes in Allgaeu and elsewhere. The Commandant said something of which I understood "partisans". Then he gave an order in French which I did not understand. The four men were led away. I came to the conclusion that the four men were going to be shot, and went to the French army chaplain and begged him to intercede."
MR. FENSTERMACHER: I ask that the conclusion of the affiant as to what was meant by the French Commandant when he said something in French, which the affiant admits he did not understand, should be stricken.
PRESIDING JUDGE BURKE: For whatever it may be worth, it may stay.
DR. LATERNSER: "I came to the conclusion that the four were going to be shot, and went to the French army chaplain and begged him to intercede. He said that was useless. A few hours later I received the order from the Commandant, by runner, to procure wagons to carry away the bodies after the impending shooting. Then, together with Burgomaster Grieshaber and Town Clergyman Boch, I had to witness the shooting. The four were placed before the wall of the church enclosure, were given bandages for their eyes-without being bound--and at about 6 o'clock they were shot by about ten French soldiers. Before the execution the body of a German soldier in civilian clothes (Bischof by name) was displayed behind them, high up on the outer wall of the church and fastened to a window shutter. It was said that the soldier had been beaten with rifle butts. Directly after the execution I had the bodies of the four men who had been shot and the body of the fifth soldier carried to the cemetary chapel. The burial took place on the following day. No judicial proceedings took place.
"The names of the four men who were shot were: Bodenmueller, Frey, Lichtenfels, and Zimmer. The fifth soldier was named Bischof.
"For quite a while the rumor persisted in Markdorf that the four men had been shot as hostages in place of the ten citizens whom the Commandant had at first demanded. They were said to have been taken out of a prisoner of war camp.
However, this was not in accordance with the facts. These two events merely happened to coincide by accident. However, in addition to this there was the fact that in the meantime 20 citizens had been gathered together at random by the French soldiers from houses or on the street, from whom the ones to be shot were apparently to be selected. However, these citizens were immediately set free after our talk with the Commandant. The shooting of the four soldiers had nothing to do with this, but apparently took place because they were picked up in civilian clothes as "partisans".
"I do not know of any posters containing any sort of threats by the French army in case of hostile acts by the citizens or individual German soldiers.
"Former Burgomaster Grieshaber (Eugen) is at present still in the Lahr-Dinglingen Internment Camp."
Signed, "Wilhelm Kahles."
Now I would like to submit List Document No. 420, as Exhibit No. 77. This is in Document Book 7, page 6, and it is a certificate which runs as follows:
"Markdorf, dated 12 May 1945.
"Kurt Bischofs has been killed by shooting in Markdorf"-
MR. FENSTERMACHER: Your Honor, I object to this. This has no relevance or materiality without more being shown that this person named here in the death certificate tics in in some way with the preceding documents. I submit that tie-up has not been shown.
DR. LATERNSER: Actually, I agree with this. The Prosecution, however, has done this perhaps thirty or thirty-five times. I would like to make this case quite clear. This is a death certificate of the man shot. The death certificate is the document which brings in evidence about of this person, and in my opinion it must be admitted as a official document. With this document every German citizen can obtain an official doctor's certificate.
MR. FENSTERMACHER: Your Honor, I have no objection to the validity of the document on its face as being a public record. My objection is different.