| Thirty-second Day - Tuesday, 23rd October, 1945
/BU_009740.jpg) EVIDENCE FOR THE DEFENDANT FRANZ STOFEL
FRANZ STOFEL, sworn, examined by Captain FIELDEN - I was born on 5th October, 1915, in Heinberg, Bavaria, was a clerk in civilian life, and first joined the German Forces in October, 1934. I left the Army in 1935 and on 1st April, 1936, I volunteered for the S.S. I wanted to become a professional soldier, but could not do this and in 1936 the S.S. formation gave me an opportunity to do so. In August, 1944, I went to Kleinbodungen, where I was a Kommandoführer, and on 4th April was ordered by Hoessler to leave and march towards Herzberg, where we should have boarded a train. As we could not do this because of two air raids, I gave orders to take the road towards the next concentration camp, Bergen-Belsen, and we left Kleinbodungen on 5th April, 1945.
A roll-call was first taken. There were 610 prisoners in good physical condition and 45 guards. I motor-cycled to Herzberg and in view of the air raids prepared accommodation for my prisoners at a camp in Osterode. Dorr and myself went back to Herzberg, but my motor cycle was destroyed in another air raid and I ordered the transport to march to Bergen-Belsen.
The places we halted at for the night on the march were Osterode, Zeesen, Salzgitter, Rüdingen, Hof and Gross Hehlen. I had a roll-call at Salzgitter and five prisoners were missing.
How much food was taken with the transport? - Rations for a fortnight. Each morning the prisoners got coffee, and during the day 500 grammes of bread and 40 grammes either of sausage or cheese, in the evening a hot meal. On 10th April we arrived at Gross Hehlen about 1800 hours.
What happened then? - An officer came and gave me orders to leave at once because the village was in a fighting area. I told him I could not do that because we had already marched about 30 kilometres, and food was just ready to be distributed. I had to go and see the Kommandant who gave me the same order, and I refused again. Then the Kommandant gave an order to another S.S. officer, an Untersturmführer, to take his men, about 30, and see that the prisoners were moved. He came with his men towards the barn where my prisoners were seated, partly inside and partly outside, and shooting started at once. Then they took the prisoners away at the double. It was about 1900 hours and getting dark.
Where were the prisoners taken to? - Their destination was unknown. I went again to the Kommandant and asked him for a truck, so could take the rations at least, but he refused. So I contacted the prisoners as quickly as possible about three kilometres from Gross Hehlen in a wood where they stopped. Blockältester Kunerez reported that four or five prisoners had been shot, partly because it was dark and they had tried to escape, and partly because they could not keep up with the pace. I asked him who did the shooting and he said the men of this Field Unit because they had no idea how to treat the prisoners, and probably thought they were not marching fast enough. My guards were not present at all during this period because they were already in their billets when the prisoners were marched off, and so were not ready. The transport stayed in the wood about an hour and a half.
Where did you go when you left? - Accommodation was found at an old aerodrome which was a sort of P.O.W. camp for Russians, and we set off for Bergen-Belsen the following morning, arriving there about 1600 hours in the 11th. On arrival I held a roll-call of internees and there were 590.
What happened to internees after the roll-call? - A Lagerältester arrived and took them away to, I think, Block 90 or 92 in the Panzer Training Camp. Dorr and I could not find Hoessler so we went to the Kommandant’s office, found a room and stayed there.
How do you account for the difference of 20 in the number of prisoners you handed over at Bergen-Belsen as compared with the number you started off with? - I mentioned the five who escaped, and 15 disappeared on the way from Gross Hehlen to the aerodrome. How many had been shot I could not say. I did not see any being shot, nor did I hear that any of the internees had been shot by the guards on the march.
Did you give orders for any of the internees to be shot on the march? - No.
Cross-examined by Captain CORBALLY - When you reached Osterode and met Dorr, did he make any report to you about people having been shot the previous night? - No.
Did you see any shallow graves dug near the site where they had camped the night before? - No.
When you took a roll-call at Salzgitter, had you any reason to suspect that some people had escaped during the previous night? - Yes, because even the Lagerältester was missing.
Were you and Dorr together the whole time during the journey, with the exception of the one night the prisoners spent at Osterode? - Yes.
Dorr is accused of shooting several people on this journey. Could he have shot these people without your knowing about it? - No.
The PRESIDENT - On the recommendation of the medical officer the Court has directed that No. 17 (Gura) be admitted to hospital now, and the Court is awaiting a report as to what his fitness will be to stand his trial.
Colonel BACKHOUSE - That being so, it is quite impossible for me to go on until that report has been received. I, of course, cannot take any evidence in his absence, if he is again to be a prisoner in the trial. We are faced with two alternatives. One is to drop him out of the trial; the other is to adjourn until he is fit to stand his trial. In view of the nature of this trial and the number of prisoners involved it is obvious to my mind that we would not be justified in asking for any long adjournment, and the trial will have to go on without him; if necessary he will be tried at some later stage. But if it is merely a question of a report on his condition, that is another matter. I have no doubt in my mind whatever that in Courts Martial, or any other form of English Court, evidence cannot be taken in the absence of an accused person.
The JUDGE ADVOCATE - So far as the procedure is concerned, we are covered by the Rules of Procedure for Field General Courts Martial, and Rule of Procedure 63, (B), on page 661 of the Manual of Military Law, says, "Except as above-mentioned all the proceedings, including the view of any place, shall be in open Court and in the presence of the accused." If you turn to Rule of Procedure 121 you find "The foregoing rules shall, as far as practicable, apply as if a Field General Court martial were a District Court Martial." Do you not feel that in some way the rules might be more loosely framed in regard to a Field General Court martial in that it does not specifically by any rule say that the accused must be present throughout?
Colonel BACKHOUSE - I do not think it has that intention for a moment, Sir. I think it would be introducing something wholly original to English criminal law, and if that were the intention I am convinced it would have been done very carefully, and something would have been put into the rules. It is fundamentally opposed to anything I have ever heard of in connection with criminal law that proceedings can take place in the absence of an accused. It is true that with regard to certain offences, such as an offence in the Court of summary jurisdiction, if he himself expresses a desire not to be present, then it is not necessary for him to be present. That is a totally different thing. The relative passage in Archbold says a trial in a case of misdemeanour can proceed without the prisoner in the dock, but it is never done. If you want to find legal cover for doing this, of course Regulation 11 of these Regulations might provide it, "The finding and any sentence which the Court had jurisdiction to pass may be confirmed and, if confirmed, shall be valid, notwithstanding any deviation from this Regulation, or the Rules of Procedure, or any defect or objection, technical or other, unless it appears that a substantial miscarriage of justice has actually occurred."
The JUDGE ADVOCATE - I think it should be borne in mind in this particular case that Gura has given evidence and has had an opportunity of putting his case before the Court. The Defending Officers are supplied each day with a copy of the transcript which can be read to Gura, and although he may not have been present throughout the whole trial it does seem to me that with a little co-operation between the Defending Officer and the Prosecutor, Gura could be put in a position where no person could possibly allege there was any prejudice whatever to him in his absence.
(The Court closed and reopened.)
The JUDGE ADVOCATE - The Court have carefully considered the position which has arisen in regard to the accused Gura. I have advised that in my opinion the absence of Gura from the court for a short period would not cause a conviction otherwise sound to fail because of his absence. The Court, however, while accepting the legal advice, want to approach this matter from a different point of view, and are more concerned with the justice than a matter of law. They have felt they must carefully consider whether, if they accept my advice in this particular case, any hardship or unfairness would occur to Gura. Bearing in mind that Gura has given his evidence and that if he should be away for two or three days his Defending Officer will be here and will have a copy for him of every word passed in this court in his absence, they are satisfied that no injustice or unfairness will occur to him. The Court feel, therefore, that the proper course is to proceed with this trial, but if Gura is not able to resume his seat in the dock within a reasonable time before this case ends, then it may be that so far as these proceedings are concerned they will have to be dropped against him.
FRANZ STOFEL, cross-examined by Colonel BACKHOUSE - You volunteered for the S.S. in 1936 because you wanted to be a professional soldier? - Yes.
The S.S. had nothing to do with soldiering in 1936, had it? - No.
What was the first place to which you were sent? - Dachau. The concentration camp was separate from the troops, and I was with the troops until 1939.
You call them "troops," but they were not troops. They were the Death’s Head S.S., were they not, who provided all concentration camp guards up to the war? - Yes.
How long did you stay at Dachau? - In March, 1939, I transferred to the concentration camp proper, and stayed there until 15th January, 1944.
What were your duties there? - For the first six months I was employed as company runner, and then I was put in charge of small working parties.
Where did you go in January, 1944? - The Concentration Camp, Mittelbau.
When were you put in charge of Kleinbodungen? - August, 1944.
Where were your prisoners working in Kleinbodungen? - It was a small part of the works working on V1 and V2 weapons.
When did you first meet Dorr? - When I came to Mittelbau in February, 1944. He was already there and he came to Kleinbodungen in September, 1944.
Was he your second-in-command of this column? - Yes, and he travelled together with me.
When you and the second-in-command went off together who did you leave in charge of the prisoners? - Nobody.
What transport had you when you left Kleinbodungen? - Three trucks and one hand-cart.
What did you do with your kit? - I took it with me on the truck.
What did the 41 S.S. men do with their kit? - They had only their uniforms, greatcoats and a very small parcel or valise.
Did you take any cooking utensils with you? - Each person had his own. Everything was loaded into the truck which was of three or four tons.
Did any S.S. men travel in it? - Yes, two, I think, who had sore feet and could not walk.
Did Kraft start off in your truck? - Yes.
Where did you put these rations for 610 people for a fortnight? - We could not carry all that on one truck, so sometimes Kraft went back in his own truck for rations.
What did the rations consist of? - Bread, cheese, sausage or meat.
Enough for 600 people for a fortnight? - Yes, at least for a fortnight.
And all carried, together with the cooking utensils, your kit and two or three S.S. men, on two wagons? - Yes.
What did you and Dorr go back to Herzberg for from Osterode? - I went back to Herzberg to meet the prisoners and then to Kleinbodungen. Dorr returned with the truck with the rations to Osterode.
Dorr would be with Kraft, would he? - Yes.
You took the truck away and left them behind. Who loaded up the truck when you got to Kleinbodungen with the rest of the rations? - Myself and the driver. There was not very much left, only coffee, some rice or some porridge.
Most of it had gone in one truckload, had it? - Quite easily.
Did any of the prisoners have sore feet? - Yes.
I suggest to you that the prisoners who could not keep up were shot that night and the next morning? - It is quite impossible that anybody should have shot a prisoner who was in my charge.
But you had gone away and left them? - At least it would have been reported to me.
But is it not the case that all the way along on this transport if a prisoner could not keep up, Dorr, shot him? - No. The prisoners who had trouble with their feet were allowed to sit on the hand-cart, and people who had more serious injuries to their feet were allowed to travel in the truck.
The prisoners put two on the hand-cart the first day, and they are the two I am suggesting were shot the next morning? - I cannot believe it.
I suggest to you that there were 650 prisoners who set out on that march? - That is not true. We never had 650 prisoners in Kleinbodungen.
Did you meet any prisoners from Nordhausen on the way? - No.
How far did you march each day? - 25 to 30 kilometres.
15 or 20 miles in wooden shoes with people who are not used to marching would not be much fun, would it? - The prisoners were used to marching, and they got their food regularly. They only marched about 3½ kilometres an hour.
They were marching about 10 hours a day? - Yes.
The first two days you were going right over the Hartz mountains. Do you really mean that none of them began to get sore feet and tired? - Of course they were tired, but they had a good sleep at night and they got their food regularly.
Were they carrying all their belongings and any bedding that they had got? - Yes.
You did not do any marching? - I was usually with the column marching myself, only now and then I went ahead on the bicycle or in a car.
Who guarded the prisoners at Gross Hehlen? - We had two guards in the barn, and the sentries were in such a position that they could overlook all the prisoners who were in front of it.
Where did your other 38 S.S. men go? - In their billet about 50 metres away.
When you went to see the local Kommandant, who did you leave in charge of the prisoners? - Two guards.
Do you mean that the Kommandant sent one of his officers and 30 or 40 of his men in the middle of a battle to look after your prisoners when you had a complete set of guards of your own? - This officer received an order to see that the prisoners got away out of the village because I refused to leave.
Did he not put you under arrest immediately? - The thing this Kommandant was most concerned about was to get the prisoners away.
So you and your guards watched your prisoners being doubled away by those 30 S.S. men from the Field Force, did you? - I could not do anything against it. My men got ready to catch up with the column as quickly as possible. When I reached the column in the wood, the officer and his men were still guarding them, and they accompanied us to the P.O.W. camp at the airfield. Next day you got to Belsen about four o’clock in the afternoon.
I suggest to you there was some shooting when you got there, and nine men were shot for trying to get some swedes? - I did not hear anything.
Why did you not leave Dorr in charge of the transport when you went off? - It was not necessary for him to stay.
Would you not have been responsible if all the prisoners had escaped? - Yes, I was the leader of the transport, but if a prisoner ran away I could not help it.
What on earth do you think you were there for? - It was my honour to take the prisoners to Herzberg and when we came there we marched them to Belsen.
When you arrived at Belsen a number of men short, did nobody ask you why? - No, because nobody knew how many prisoners were coming. I handed them over to other prisoners and the S.S. clerks, and I said "we are about 600." They put them into one block and it was full.
Did you never think of reporting to Hoessler that a lot of prisoners had been shot by the Waffen S.S.? - I reported this to Hoessler the next day and told him that my prisoners had been chased away from Gross Hehlen by a unit of the Waffen S.S., and I told him about the incident that occurred. He said that this was a question in which the Court Martial Department was concerned, and we had nothing to do with it.
What did you do when you found during your roll-call at Salzgitter that you were five men short? - Nothing. We just marched off. Nobody could know if they escaped during the night time.
Did you not put any guard on at night? - Yes, but the prisoners were sleeping in three huts with two guards in front and two guards at the back, but the other two sides of the huts were not guarded.
The real answer is you know perfectly well that Dorr had shot them? - It is not true.
Re-examined by Captain FIELDEN - Whilst you were away with Dorr for these odd hours during the march, what were you doing? - We went ahead to get some information about the front line and the fighting, and we went to try to get accommodation for the prisoners, and find places where we could get them water.
Can you say how many of the internees fell out of the transport and had to be put on the truck? - About eight or ten who had major foot injuries and who could not walk at all were carried on the truck, and sometimes two or four a day were put into the hand-carts.
Were there any official halts on the march? - Yes. We had a break about 1300 hours for one hour’s rest, and about 1600 hours we had another half-an-hour’s break. I went ahead on my bicycle and selected for rest these places where they could find drinking water.
When you reported to Hoessler about the Waffen S.S. shooting, who brought the matter up first, you or Hoessler? - I did.
Whilst this march took place did you know that the general military situation was? - I could not get exact information, but I got some. They told me that the front was about 30 to 40 or 50 kilometres away from the road where we were.
By the JUDGE ADVOCATE - When you left were you furnished with a nominal roll giving the names of the people in your convoy? - No.
Were you working merely on numbers? - Yes.
When the five men disappeared you would not know which five had gone? - In this case I could because it was the Lagerältester, two or three Kapos, and one Schreiber who were all Germans.
Could you tell which men had been shot by the S.S. Field force? - No.
Hoessler in his affidavit says that he heard from prisoners that several people in the transport had been shot, and that when he mentioned this matter to you and Dorr you both denied all knowledge. Is that true or untrue? - I remember that the prisoner came to Hoessler, and he wanted to know who had given the order to fire, but of course I could not know that.
Hoessler in his evidence said that he remembered the transport arriving, but that you never reported any special incident to him? - I am not surprised that he does not remember it because at the time that I reported to him he was too busy getting food and other things for the 15000 prisoners he had. |