AFTERNOON SESSION (The hearing reconvened at 1330 hours, 12 January, 1948.)
The MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Pardon me just a moment, Dr. Sauter.
At the morning -- or rather, during the noon -- recess and after my return from lunch there was brought to my office a supplemental notice of demand by prosecution for production of additional defense affiants for cross examination. These affiants are Heinrich von Behr, B e h r, and Franz von Harling, H a r l i n g.
I am informed that the affiant von Behr gave his affidavit on behalf of the defendant Dehner and the affiant von Harling gave his affidavit for the defendant Weichs or List -- at least, it was presented by Dr. Laternser.
There is further information presented to the Tribunal to the effect that these affiants lived considerable distance from Nuernberg and that it will be impossible to obtain the presence of these affiants before tomorrow afternoon. Under the circumstances, therefore, the calling of these affiants for cross examination will be permitted after the -during such time as the prosecution may be presenting its rebuttal testimony. That is the only way in which these men can be brought here and their cross examination made possible without a delay and the Tribunal will permit that to be done.
DR. SAUTER: Your Honor
MR. FULKERSON: I have one correction, your Honor; I believe the affidavits of von Harling were introduced on behalf of the defendant Foertsch rather than Weichs or List.
DR. LATERNSER: (Counsel for defendants List and von Weichs): That is what I wanted to say, your Honor. I did not present an affidavit by Colonel von Harling.
DR. SAUTER: (Counsel for defendant von Geitner): Your Honor, in the meantime, I have questioned the defendants again about the affiant von Hurling and I have discovered that one affidavit by this affiant has been submitted for the defendant General Foertsch.
I don't know the number -- and one affidavit for the defendant von Geitner; and this is Geitner Document No. 57, Exhibit No. 43. That is Geitner Document No. 57, Exhibit 43; but at the moment I don't know the number for the Foertsch document. His defense counsel isn't here at the moment.
With regard to the affiant von Behr, General Dehner told me that the defense counsel for General Dehner has repeatedly sent telegrams to von Behr asking him to come here but the answer was to the effect that the affiant is so ill that he is not able to come to Nuernberg.
That is what I wanted to say for the information of the Tribunal and of the Prosecution.
THE PRESIDENT: Without reflection on your statement, Dr. Sauter or General Dehner, I imagine it will be necessary for the Defense Center to check on the matter so that we may be further informed as to whether or not he can be present. The information as stated relative to the manner in which the cross examination of these witnesses will be had needs no further comment from the Tribunal.
DR. SAUTER: Your Honor, the Defense Counsel are not quite sure, that is, the Defense Counsel engaged in this trial here are not quite sure whether the prosecution is now justified to ask for cross examination of such witnesses whose affidavits were already presented some weeks ago and where at the time the Prosecution did not ask for cross examination. We are of the opinion that after such a long time cross examination by the Prosecution cannot now be demanded but of course we are not quite clear whether this opinion is in agreement with the regulation of this Tribunal. If the Tribunal shares our opinion -that is, that a cross examination cannot be demanded now -- then of course we must protest against the fact that this cross examination is now asked for.
THE PRESIDENT: I am informed that the affidavit of von Behr was only presented this morning or yesterday. am I correct in that statement?
MR. FULKERSON: Yes, Your Honor, this morning I believe, and the affidavit is dated the 15th of December.
DR. SAUTER: But affidavits by the affiant von Harling were certainly submitted already some time ago.
THE PRESIDENT: That matter is one for the Tribunal to decide as to the time of its presentation of the application, and under the circumstances the cross examination will be permitted at such time as they can obtain this witness and during the period of rebuttal, if such is necessary.
DR. SAUTER: Then, Your Honor, with regard to another point I would like to make a statement.
I have spoken with your Honor and with the Secretary General about this matter during the noon recess and I would like to announce the result for the record. Document Lanz No. 192, I repeat Lanz No. 192, receives Exhibit No. 184; and Lanz Document No. 193 receives Exhibit No. Lanz 185. I would like to correct this so that the same number doesn't appear twice. And then, Your Honor, I have discovered that in Document Book Geitner V, Document No. 144 -- it is on page 89 of Geitner Document Book V -- at the time this document was not in the possession of the Tribunal, through a mistake on the part of the Translating Department. This Document 144 was contained in the German Document Book but by mistake it was not included in the English Document Book. This Document No. 144 in Geitner Document Book V, page 89 , is an English excerpt of Various passages from the Rules of Land Warfare. In the meantime, I have received the English translation. I have submitted the English translation, or rather the English original, to the Tribunal and to the Prosecution in sufficient copies and now I would like to submit this Document 144 to the Tribunal as an exhibit on behalf of the defendant Geitner.
MR. FULKERSON: Is this a new document that you are now putting in or is this one that has already been admitted?
DR. SAUTER: No. At the time, Your Honor, in the session of the 22nd of December, this document which is an excerpt from the Rules of Land Warfare, I couldn't present it at the time because, by mistake on the part of the Translating Department, it wasn't included in the English document book. In the meantime, however, these English copies have been handed to the Tribunal and to the prosecution and that is why I am submitting this Document 144 to the Tribunal at this moment.
MR. FULKERSON: If it is being presented here for the first time, I would like to object to it because this again is something of which the Tribunal is supposed to take judicial notice; and further if it has any place that proper place for it is in a brief or in a legal argument and not as a piece of evidence.
PRESIDING JUDGE BURKE: What Exhibit number did you wish to give it, Dr. Sauter? What number did you wish to offer it as?
DR. SAUTER: This becomes Geitner Exhibit No. 178. That is the last exhibit number for Geitner. I have not submitted this document twice, but only once, because I couldn't submit it earlier.
PRESIDING JUDGE BURKE: The objection will be overruled. The document will be admitted as Exhibit 178 von Geitner.
DR. SAUTER: This brings me to the final end of my case in chief for the defendant Geitner.
PRESIDING JUDGE BURKE: Dr. Sauter, I think your statement covered the situation but do you rest on behalf of the defendant von Geitner?
DR. SAUTER: Yes, Your Honor.
PRESIDING JUDGE BURKE: Very good.
DR. GAWLIK: Dr. Gawlik for the defendant General Dehner. Your Honor, with regard to the application of the Prosecution to bring the affiant Behr here for cross examination, I would like to state the following. The affiant Behr is ill. He is one of those witnesses whom I myself invited to come here and whom I wish to examine myself. This morning I received a letter from the affiant Behr in which he states that he is ill in bed and that he cannot appear and for this reason I submitted the affidavit by Behr.
PRESIDING JUDGE BURKE: He obviously can't be here. Has the affidavit been accepted as an exhibit?
DR. GAWLIK: Yes, Your Honor.
PRESIDING JUDGE BURKE: You may proceed.
DR. GAWLIK: I have no further statements to make, Your Honor.
DR. LATERNSER: Your Honor, I would now like to examine two witnesses. They are simple people from the countryside and perhaps the examination will not go as smoothly as usual. The first witness I would like to call is Xavier Hirschmann.
XAVER HIRSCHMANN, a witness took the stand and testified as follows:
PRESIDING JUDGE BURKE: You will please raise your right hand and repeat the 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.)
PRESIDING JUDGE BURKE: You may be seated.
DIRECT EXAMINATION BY DR. LATERNSER:
Q. Herr Hirschmann, would you please state your full name.
A. Hirschmann, Xaver; Pfeffershofen.
Q. Witness, when I ask you a question then you must wait a little before you answer because the question has to be translated into English. When were you born?
A. The 13th of April, 1901.
Q. And where? Would you please spell the name?
A. D-a-l-o-h-n.
Q. What is your religion.
A. Catholic.
Q. What is your profession?
A. Farmer.
Q. Where?
A. In Pfeffershofen.
Q. How long long have you lived in Pfeffershofen?
A. Since 1902.
Q. Could you speak just a little louder?
A. Yes, I will.
Q. When was Pfeffershofen occupied by American troops?
A. On the 18th of April, 1945.
Q. Was there fighting for Pfeffershofen on this date?
A. No.
Q. How long did the troops remain in Pfeffershofen on this day?
A. One or two hours.
Q. What did they do then?
A. They withdrew into the next locality.
Q. Did a number of occupying troops remain in Pfeffershofen on this day?
A. No.
Q. What happened on the next day?
A. They came back again.
Q. How long did they remain in Pfeffershofen on this day?
A. Also one or two hours.
Q. Did an occupation remain behind then?
A. No, nobody remained behind.
Q. Then what happened on the next day? And which day was that?
A. That was Friday.
Q. Do you know what the date was on this day?
A. That was the 20th of April.
Q. Well, then, what happened on the 20th of April?
A. On the 20th of April, no American troops came.
Q. But what happened on the 20th?
A. Well towards darkness, the SS came.
Q. What kind of SS? What happened when the SS came?
A. A barn was shot up and thereby set on fire.
Q. Yes, and where were you when the shooting was going on by the SS on this day?
A. I was outside the village.
MR. FULKERSON: Until now there has been no mention of any shooting. Unless there has been a wrong translation.
PRESIDING JUDGE BURKE: Has there been a wrong translation, Dr. Laternser?
DR. LATERNSER: Your Honor, I am afraid I can't say because I didn't follow the translation.
PRESIDING JUDGE BURKE: Mr. Fulkerson said that nothing in the testimony had indicated up to this time that any shooting had occurred.
DR. LATERNSER: Yes, I think there was mention of shooting. I will repeat my question to straighten it out.
BY DR. LATERNSER:
Q. Herr Hirschmann, you said that on Friday, the 20th of April, SS arrived.
A. Yes.
Q. What did the SS do and what was the strength of the SS troops?
How many people were there?
A. Well, I didn't see them myself because I wasn't in the village.
Q. Where were they?
A. They were near the in of our village.
Q. Where were you yourself?
A. I was about three or four hundred meters away.
Q. What did you hear?
A. Through my relatives, you mean?
Q. Yes, through your relatives.
A. Well, one of my relatives was there and he said that the SS -
MR. FULKERSON: Your Honor, please, I would like to object. This is hearsay, as clear as has ever been produced in a court, and of the most unreliable kind.
DR. LATERNSER: I attach no particular importance to this point, Your Honor. I will get to the most important point later on. But the Prosecution has no reason to protest against this as being hearsay after their whole case, in many phases, depended on hearsay. I will ask another question.
PRESIDING JUDGE BURKE: Instruct the witness the testify only to matters of his own personal knowledge.
DR. LATERNSER: Herr Hirschmann, when I ask you, please only talk about the things which you yourself saw.
THE WITNESS: Yes, I will do that.
BY DR. LATERNSER:
Q. Well, then, what happened on the next day? We were talking about Friday, the 20th. What happened on Saturday, the 21st?
A. On Saturday, in the early morning, the Americans came.
Q. What kind of troops were they?
A. Well, infantry came, and tanks.
Q. Were there a lot of Americans?
A. Yes, there were rather a lot.
Q. About how many?
A. Well, I really can't say exactly, but there were quite a few.
Q. How many tanks were there?
A. There were about fifteen or twenty; but there might have been more.
Q. Where were you when these troops arrived on the 21st of April?
A. When the troops arrived, I was still in the village. When the tanks came we were lined up along the street.
Q. When did you talk to American troops for the first time? When did you come into contact with them?
A. That was in the early morning, perhaps at half past six.
Q. And then did you talk with an American soldier?
A. Yes.
Q. And what did he tell you?
A. He told me that German soldier shot an American and village kaput (indicating). .
Q. What did this sign which you just made meant?
A. It meant that they were to set the village on fire.
Q. How did he express that?
A. Well, he had a match. He lit a match in his hand.
Q. And then what did you do?
A. I went home and then I asked a few questions at home and then I went out again to look after my cattle.
Q. Where were your cattle?
A. That was outside in the field.
Q. What did you want to do with your cattle then?
A. Well, I wanted to drive them back home.
Q. Did you do that?
A. Yes.
Q. Then did you talk, meet another American soldier in the village?
A. Yes, before I got home I met another American.
Q. What did he say to you?
A. I had to load up munition.
Q. And then?
A. And then he let me go again.
Q. And then what happened? Where did you go then?
A. Then I went home and then I was stopped by another American.
Q. And what did he say to you?
A. He led me to the corpse.
Q. Which corpse?
A. The corpse of an American.
Q. That did he do there when you were there? I mean this American soldier?
A. He said to me, "That is an American. Do you understand?" and I said "Yes," and then he said," He was shot by a German soldier," and I said, "I don't know anything about it."
Q. And then what did the American say to you, when you said that you didn't know anything about it?
A. "You all know; the whole village knows." The village, and then he again made the same action with a match.
Q. Did he actually light a match?
A. Yes, he struck and lighted a match.
Q. What did you do then?
A. Then I wanted to go home again, the other Americans came with evacuees and they took me along again with them.
Q. Where to?
A. Back again to the dead American.
Q. What did you have to do there?
A. I had to look at the dead American again and then he said exactly the same thing.
Q. What do you mean, "The same thing"?
A. German soldier shot him; village will be set on fire.
Q. And then what was done to you?
A. Then I went home.
Q. And then did you arrive home.
A. No. I did not arrive -
Q. But?
A. The inn keeper came and she took me back to her house and she said, "You are to be shot." And then I went along with her and then we had to wait until the Americans came. We were supposed to wait until the Americans came. And then they took us back again to the dead man.
Q. And then what happened to all the men in the village?
A. The men were lined up at the street.
Q. All the men in the village?
A. Yes, all the men in the village except two.
Q. Were you guarded?
A. Yes, we were guarded.
Q. Where were all the men in the village? Where were they?
A. They were standing in the street.
Q. In the village or outside the village?
A. Outside the village, in the street.
Q. And who guarded them?
A. American soldiers, with machine guns, around them.
Q. And then what did you see, from where you were?
A. The village was set on fire.
Q. And then what happened to the village?
A. The village was burned to the ground.
Q. Completely burned to the ground?
A. Yes, I saw no house standing. That is, I saw one house standing.
Q. That is everything was burned except one house?
A. Yes.
Q. And to whom did this house belong?
A. This house belonged to Kaiser.
Q. And then what did you do when you were able to get away from this collection place?
A. We wanted to try and put out the fire, but we couldn't get in.
Q. Who stopped you from putting the fire out?
A. Also American soldiers.
Q. Did you try to put the fire out?
A. I tried later on, perhaps around about one o'clock.
Q. About when was the village set on fire?
A. Perhaps about eight o'clock.
Q. And then where did you go, when you were no longer guarded?
A. I went to Dalohn and then I asked where I could find some lodgings for my family.
Q. And when did you come back again?
A. Perhaps about one o'clock.
Q. And then what did you do, at one o'clock?
A. -- I tried to put the fire out and then I was shot at twice.
Q. By whom?
A. By Americans.
A. Were you able to put the fire out?
A. No, I was not able to put the fire out.
Q. Was everything you possessed burned out?
A. Yes.
Q. And what happened to the other inhabitants?
A. The same thing happened to all the other inhabitants.
DR. LATERNSER: I have no further questions.
JUDGE BURKE: Have any other defense attorneys any questions?
Apparently Not. Mr. Fulkerson, you may proceed.
CROSS EXAMINATION BY MR. FULKERSON:
Q Can you hear all right now?
A Yes.
Q You will have to excuse me for my ignorance of geography, but exactly where is Pfeffershofen?
A It is eight kilometers from Neumarkt in the direction towards Amberg.
Q Is that in Westphalia, or where?
A No, it is in the Upper Palatinate (Oberpfalz).
Q Now, you say that on the 18th of April the American troops came in for the first time.
A Yes.
Q And then they were driven back?
A No, they weren't driven back.
Q But they withdrew in any event?
A Yes, they withdrew into the next village.
Q And then the next visitors you had were the SS?
A Yes, but the Americans came again on the next day.
Q Now from what direction did the SS come?
A The SS came from Dachenhofen over the fields.
Q Was this an SS infantry outfit?
A I don't know. It was only a reconnaissance car.
Q You say that the barns were burned down at that time?
A One barn.
Q Why?
A The SS opened fire.
Q On whom?
A Well, they simply opened fire in the village.
Q Well, didn't they have any particular target? They didn't just ride into the village and start firing indiscriminately, did they?
A They shot all around and in the village.
Q You mean they were shooting at Germans?
A Well, I don't know what they were shooting at at all. The Americans were not inside and they just shot around the whole village.
Q Did this shooting of theirs cause any fires in the village?
A Yes, one barn was burned down.
Q How big is the village.
A There are fourteen farmers in the village.
Q That is, fourteen dwellings altogether?
A Yes, and adjoining buildings, auxiliary buildings.
Q Fourteen buildings altogether?
A No, dwelling houses with auxiliary buildings and barns.
Q Well, how many dwelling houses are there?
A Fourteen dwelling houses.
Q Now how long did the SS stay there?
A The SS were there perhaps not even half an hour; perhaps ten minutes.
Q Do you know whether they all withdrew, or did some of them stay behind?
A I don't know how many there were altogether, but there was just a reconnaissance car, and then I didn't see anything else.
Q Now then, the next day you say the Americans came back?
A Yes.
Q And when was this American soldier killed? About what time was that?
A Well, we didn't know. We thought perhaps that took place during the shooting when the SS were there.
Q You mean that the SS did not withdraw until the Americans actually came into the town?
A They didn't come into the village at all. They were outside the village.
Q The Americans were outside the village? Or the SS?
A The Americans were outside the village and the SS- they were outside the local Pub, and that is on the road which runs along the village.
Q But there was an exchange of shooting between the American troops and the SS troops very near the village? If not inside it?
A Yes. Yes. It was quite near to the village.
Q And the houses were set on fire by this?
A Yes.
Q How many?
A Well, no house was set on fire. The barn was set on fire.
Q And then after this exchange of shooting between the SS and the Americans, the Americans withdrew -- the SS withdrew and the Americans came in to the village?
A No, they didn't get into the village either.
Q Well, they must have got in it at sometime. You say they burned it down. Now when did they get into it.
A That was the next day in the early morning.
Q Oh, I see. This exchange of shooting -- this exchange of shots took place on the 19th.
A That was on Friday the 20th. On the 18th they came, that was Wednesday, and then Thursday was the 19th and Friday was the 20th, and then on the 21st they set the village on fire.
Q On what day was it that you were shown this dead American soldier?
A That was on Saturday in the early morning.
Q What date?
A That was the 21st.
Q Did you have any idea how long this man had been dead? How long it had been since he was killed?
A Well, he must have been killed quite recently because the skull -- half the skull was missing.
Q Did you know where he was killed? Where he was standing or sitting at the time he was killed? Where?
A Well, right on the spot. Here was a pool of blood. This was outside the village, about 100 meters outside the village.
Q How had he been killed. Was it by a rifle shot or grenade or what?
A Well, I don't know. I think it was through a rifle butt, because half of the skull was missing.
Q And the SS at that time had completely withdrawn from the village?
A Yes, they had returned to Berghofen.
Q Yes, but at the time this American soldier was killed on the 21st, there were no SS troops in the village at that time?
A No, I didn't see anymore of them.
Q Were there any other German troops in the locality? Were there any other German troops?
A Further away. For instance in Berghofen; that is about three-quarters of an hour away. There were German troops still there.
Q About the time that this American soldier was killed in the square there were no SS troops in the village so far as you know, and no German troops?
A No, the SS troops were never in the village at all, but about two days before the Americans arrived the Germans had already withdrawn.
Q Were any other American soldiers killed in the village that day or the day before?
A No, not one shot was fired.
Q I believe that is all.
REDIRECT EXAMINATION BY DR. LATERNSER:
Q I think that there is rather a mix-up. When did the Americans come to Pfeffershofen for the first time?
A That was on Wednesday, the 18th of April.
Q Was there fighting for Pfeffershofen?
A No.
Q What did the Americans troops do? The ones who arrived on the 18th?
A. They were about 1½ or 2hours there; they ate, they even cooked in my place, and then they went away again.
Q When did they come for the next time?
A That was on the next day, the 19th.
Q On the next day was there fighting for the village?
A No, there was also no fighting.
Q And then they withdrew again?
A Yes, they withdrew again.
Q That was on the 19th of April?
A Yes.
Q Then what happened on the 20th of April?
A On the 20th of April none of them came at all.
Q But who came?
A When it was dark, SS came.
Q Was that a formation or just one car?
A That was just one car.
Q And were they inside the village?
A No, they were not inside the village.
Q But what did they do?
A They were on the road near the Pub -- the Inn.
Q Is the inn outside the village?
A It is about fifty meters away from the last house in the village.
Q And then what did the SS car do? Did it shoot?
A Yes, they opened fire and shot around the village.
Q Do you mean they shot over the village or around the village?
A They shot over the village and around the village.
Q Well, what did they shoot with?
A Well, they shot with machine guns.
Q And how was the barn belonging to Farmer Strobel set on fire.
A It was set on fire by the SS shooting.
Q That was the 20th of April, 1945?
A Yes.
Q Now, let's turn to the 21st of April. Was there shooting in the 21st of April?
A No, there was no shooting on the 21st of April.
Q But when did the Americans come?
A The Americans came in the early morning; perhaps about seven o'clock.
Q And was there fighting for this village?
A No, there was no fighting.
Court No. V, Case No. VII.
Q Well, how did the people think that this American soldier was killed?
A Well, we thought that he had been killed by the SS.
Q And when was the SS there?
A The SS were there in the evening.
Q On the 20th of April?
A Yes, on the 20th of April. Friday.
Q Where was the dead American soldier lying?
A The dead American soldier was lying about one hundred meters outside the village.
Q On the 20th of April did the SS car shoot in that direction?
A I was not in the village, but they shot around the village.
Q Did this SS car shoot with tracer ammunition?
A Yes, with tracer ammunition.
Q Did you see that yourself?
A Yes, because we had to take shelter, we were outside the village and took shelter.
Q I have no further questions.
RECROSS EXAMINATION BY MR. FULKERSON:
Q When the Americans burned the village down, as you say, how did they do it? By firing on the houses?
A No, they just set them on fire.
Q They moved all the people out of them?
A Yes.
Q And then set them on fire. Did they set them on fire individually?
A Yes. Yes.
Q All except one, you say.
A Yes, except the house of Kaiser.
Q That is all.
DR. LATERNSER: I have no further questions to the witness. I Court No. V, Case No. VII.