Q. May it please the Court, I am now coming to the next case -the Fussen case, which has already been discussed in great detail by the Prosecution, and, therefore, it is necessary for us, too, to go into great detail.
THE PRESIDENT: Just ask your questions; you needn't apologize at all just say it; proceed without preliminaries.
Q. I am now coming to Case 17, the Fussen case. That case concerns a clergyman, and the Witness Schwarz on Page 1984, 1995, 2023, and 2030 described the case. Is your memory identical with that of the Witness Schwarz? May I ask you first whether it was Eberhard or Berthold Schwarz?
A. It was Berthold Schwarz. My recollection is to a far extent identical with what he said. Fussen was at first a member of an order, and afterwards he became a clergyman, no longer a member of an order. He continued to commit serious sexual crimes. However, the Special Court at Stuttgart, at a trial which lasted three days, in the Spring of 1940 sentenced him only to three years in prison, the time he spent in detention pending trial to be deducted. The Oberreichsanwalt, the Chief Reich Prosecutor of the Reich Supreme Court, made the nullity plea. The judgment was revoked, and a Special Court at Frankfurt sentenced Fussen on the basis of the same facts which had been available to the Special Court at Stuttgart, to a penitentiary term of eight years. I cannot recall further details of the case.
Q. Did the question of safety custody become acute in the Fussen case?
A. No.
Q. Because of the fact that the public is admitted to this Courtroom I do not want to ask you about any details concerning this case, but will you please refer to the Articles of the German Legal Code?
A. It was attempted rape, "Beischlaferschleichung," and similar things.
Q. Did they refer to several females?
A. No, to one female.
Q. Can I go over to the next case, Case 18, the Keppler case? In the Keppler case, at a trial on the 28th of January 1943 in Stuttgart the Court was supposed to have arrived at a judgment after one hour. May I ask you to comment on this case?
A. The Keppler case was tried on Thursday, the 28th of January 1943, in the morning at eight o'clock, and it was at Stuttgart. Keppler was a man who had been sentenced to a great many penitentiary terms already. He had murdered a police official by shooting at him from a close distance. He confessed fully. The death sentence was mandatory under the law. The defense counsel who had been appointed by the Court, as well as I myself, had to ask the Defendant Keppler repeatedly to say something about his offense. Keppler only said a few words. The medical expert gave his opinion. The blood-stained clothes of the victim were on the bench. The judgment was announced after fifteen minutes. As to what had to be the wording of the judgment in this case, that was a foregone conclusion for everybody, and the judgment was carried out.
Q. Case 19-- the Witness Eberhard Schwarz spoke about the Kettlitz case. Do you know anything about the Kettlitz case? What was the judgment in that case?
A. Bruno Kettlitz, in March, 1942, was sentenced to a penitentiary for a term of ten years because he was a dangerous blackmarketeer. For the first time the Prosecution in this case had asked for the death sentenced in the case of a blackmarketeer. After a long consultation the judgment was decided upon. The judge, who had written the report, District Court Counselor ---
THE PRESIDENT: The Tribunal will recess until this afternoon at 1:30.
(The Court Recessed at 12:15)
AFTERNOON SESSION (The hearing reconvened at 1345 hours, 2 September 1947) HERMANN CUHORST - Resumed DIRECT EXAMINATION (Continued)
THE MARSHAL: Persons in the Courtroom will please find their seats.
Military Tribunal 3 is again in session.
DR. BRIEGER:
Your Honor, May I continue examining my client? I am now coming to the so-called Mannheim Case; that is Case No. 20 on my list. I should like to start by drawing the attention of the Tribunal to this point: When the Prosecution submitted the first document in connection with this case I objected because, in our opinion, Cuhorst is not indicted in connection with his work at the Senate, but exclusively for his work with the Special Court. The Tribunal, Judge Marshall presiding at the time took the view that Senate cases too were to be presented as far as they contributed to completing the picture of the person of the defendant as a judge. I am pleased to call that view my own, and I am now going to discuss the case itself.
BY DR. BRIEGER:
Q Witness, the witness Berthold Schwarz made detailed statements-see transcript pages 1991, 2024, 2028, and 2068-- concerning a case which was dealt with by the District Court of Appeal at Stuttgart on the 2nd of October 1942, the case of Fritz and others. Can you supplement Schwarz's statements?
May I point out that on my list of cases I have also entered the other defendants? I did that for a very definite reason. In the transcript the case is sometimes referred to as the Meuschwandter case and then sometimes as the Jatzek case, and I entered the other names to make identification easier. We are also concerned with the Mannheim case.
Well Witness?
A In the Mannheim case there were 11 defendants, and all were Germans. They were charged with preparation for high treason. The witness Berthold Schwarz described the case quite correctly. In particular he gave a correct account of the scene which occurred at the end of the proceedings in the Judge's chamber, when I made violent reproaches to the witness Schwarz, who was then the representative of the Prosecutor General, on account of the heavy sentence for which he had asked, because in the case of all 11 defendants, he had asked for the death sentence, according to instructions. In the case of six defendants, prison sentences, and in the case of five defendants, death sentences were passed. The case was a very serious one, but the heavy sentences for which the prosecution had asked were in no way justified.
Q Do you want to mention any details about the high treason activities of the defendants?
A It was a large Bilshevik sabotage group, which had been at work in Mannheim factories. Some of the offenders had already been convicted by the People's Court. The other 11 defendants were passed on, by the Chief Reich Prosecutor, to the General Public Prosecutor for indictment with the District Court of Appeal.
I should like to add that the case, which was tried by the District Court of Appeals at Stuttgart, was tried in some time after Undersecretary Schlegelberger was there.
Q Do you still remember anything about the contents of the illegal leaflets and pamphlets which the defendants had spread?
A No.
Q And now I want to ask you this, witness. As far as I know, several quarters, here in the courtroom, have particularly charged you, with having sentenced an aged woman to death and I believe she was over 62, Frau Wagner. What were the special reasons which caused you to sentence that woman to death, quite apart from the fact that as I have said, she was an elderly woman?
A Frau Wagner was one of the main participants. She had several previous convictions, and was a Communist functionary.
As far as I know, in 1935 or 1936 she had made a statement of loyalty and was living quite undisturbed and in comfortable conditions in Mannheim. In 1941 she became the focal point of the Mannhein Group. The trial took place in the middle of 1942. That is to say--I have to correct myself--it was held on the 21st and the 22nd of October, 1942.
Q Concerning the person of the defendant Jatzek, do you remember anything about him? I am asking you, because I shall ask detailed questions of a witness whom I shall call.
A Sometime after the trial I heard, indirectly, that Jatzek had confessed only to part of his offense, and that, after the judgment had been passed, it had been discovered that Jatzek had played a much larger part than the Penal Senat had found. However, that was information which I had received outside of my official duties and it no longer had any influence upon the case.
Q May I now go over to the next case? Case 21, the Mattes case. Do you remember anything of that case, which was also tried before the District Court of Appeal? Did the District Court of Appeal, under your presidency, deal with many such cases where the death sentence was passed?
A On Friday I stated that the First Penal Senat at the District Court of Appeal at Stuttgart, from 1937 until 1944, passed seven or eight death sentences. The defendant Mattes, for preparation for high treason had been sentenced by the Penal Senat to a term of medium length at a penitentiary.
He was serving his sentence at the Ludwigsburg Penitentiary, and there again he formed a cell. That cell did communistic work of undermining for which Mattes was serving his term. Therefore Mattes was again indicted for preparation for high treason and, as it was impossible to find extenuating circumstances, he had to be sentenced to death.
THE PRESIDENT: I am not sure that I understood you. Was this second for which he was tried one that was committed in the prison?
THE WITNESS: Yes; he was committed that second offense in the prison. In the Prison he set up a communist cell, a Communist group.
THE PRESIDENT: Thank you.
JUDGE HARDING: Who was the presiding judge of the Penal Senat?
THE WITNESS: I was the presiding judge, Your Honor. I tried the Mattes case at the penitentiary in Ludwigsburg.
BY DR. BRIEGER:
Q Now the next case, case 22. The Paetzold case, of 26 October 1942, was dealt with by the witness Ebergard Schwarz on page 2293 of the record. Do you remember anything about that case?
A The Paetzold case was tried while I was the presiding judge, and it was tried on Monday, the 26th of October, 1942, at Stuttgart. I no longer remember the facts of the case, but I can recollect about the trial.
While the defense counsel was making his second plea, the defendant fainted. When, two or three minutes later, he had not yet recovered I had a recess called and I had a physician summoned. Only after Paetzold had been revived was the plea continued. It is possible that the defendant Paetzold, for some minutes, was in the courtroom in a state of semi-faint, until I noticed what was happening. That occurrence-something which happens fairly frequently--did not have any influence on the trial.
Q May I now go over to the next case?
THE PRESIDENT: May I ask you a question with reference to the Mattes case? What was the nationality of the defendant in case 21?
THE WITNESS: Mattes was a Reich German. He had been born in Stuttgart, as far as I know.
BY DR. BRIEGER:
Q Case 23 in the Schmidt case. This case had been discussed on record pages 1941, 1971, 2021, and 2325 by the witnesses. The testimony of the witnesses does not show clearly what the details of the case were. May I ask you, therefore, to comment on the case?
A. In that case a certain Michael Schmidt and several other offenders had been indicted. The trial was held in Stuttgart, and I was presiding judge. The defense counsel for Michel Schmidt was the attorney who has appeared here as a witness, Julius Diessem, from Stuttgart. The defense counsel for the co-defendants, who were the receivers, was attorney Stoeck from Stuttgart.
The defendant Michael Schmidt, who was an elderly man and who had seen several previous, convictions for minor offenses, was an auxiliary worker at the field post collecting center in Stuttgart. He had stolen sixty or a hundred field post consignments, and the contents, which usually were tobacco, he had either consumed himself or passed on to receivers. The latter fact alone reveals that this was not a case of stealing just for his own consumption, petty theft, because a person who commits such petty theft Consumes the objects he has stolon, and that on the spot. That is the legal criterion of such an offense.
The defense of the defendant Schmidt was conducted approximately in the way in which the witness Diessem has described it here, and the incident which occurred between the defense counsel and myself did take place in the way in which the witness Berthold- Schwarz described it here.
I approached the President of the Lawyers' Chamber and, at the beginning of February 1933, in a letter, he told Lawyer Diessem that he would refrain from taking any further stops, but Diessem, for the time being, was not to appear before the Special Court and the Penal Senat. At that time Lawyer Diessem had also had incidents with the President of the Second Penal Senat. Lawyer Diessem stayed away from his work only for a few weeks. On the 24th of March, 1943, he was defense counsel in the Stiegler case in Ulm. I remember that on that day I had lunch in Ulm with Lawyer Diessem, and during lunch we discussed the incident over the Schmidt case and we came to an understanding about it.
Q. Witness, may I ask you to give us a few more details? My first question is this. Was Michael Schmidt a German or a foreigner?
A. He was a German citizen.
Q. Was he executed, or was clemency exercised?
A. As far as I know, the sentence was carried out.
Q. I now ask you, did he alone steal the cigarettes and appropriate them, or did he also take the letters and other messages from the relatives at home to their people at the front?
A. He destroyed the letters because he couldn't put them to any use.
Q. The latter fact, that he had also destroyed these letters, and those to the fighting troops at the front--was that considered an aggravating circumstance?
A. The prevailing legislation was that those facts had to be considered as aggravating circumstance?
A. The prevailing legislation was that those facts had to be considered as aggravating circumstances.
Q. The witness Diessem has emphasized here repeatedly that it was a trivial offense because, as far as he remembered, cigarettes only cost four pfennigs. As you say, this offense occurred in time of war. Must one bear in mind that cigarettes were rationed at the time, or does it also hit the economic front?
A. One could not take into consideration the economic aspect. Tobacco was a rarity, and the wives of the recipients and the mothers of the recipients, in most cases, had saved these cigarettes from their own rations.
Q. Do you also want to say that those women sometimes had to queue up for hours outside tobacco shops to get hold of a few cigarettes for their relatives at the front?
THE PRESIDENT: We are not concerned about that. Pass on to something else please.
DR. BRIEGER: Yes.
BY DR. BRIEGER:
Q. I now come to the next case, case 24. On the 29th of November, 1942, the Special Court at Stuttgart passed the only death sentence a against a black-market slaughterer. That was the case of Soell and others. Diessem, who was the defense counsel in that case, spoke about the case on pages 2318, 2336, and 2333 in the record. What were the circumstances of that case?
A. The case against Johann Soell and Pauline Ziegler was described by the witness Diessem correctly as far as the main points go. Both, together, had acquired more than ten thousand kilograms of meat by Black market slaughtering. The prosecution asked for the death sentence on both defendants. The Special Court sentenced the defendant Soell to death. The defendant Pauline Ziegler, who was defended by Lawyer Engelhern, however, was not sentenced to death.
That case of black-market slaughtering was the most serious case in my experience. If one worked out the weights according to the live animal; one arrived at the figure of 50 head of cattle, at 500 kilogramweight each; that is, if you refer to the live animal.
Q. The witness Schwarz, at the time, said that Soell had already retired from business, that he was a man over 60, and that therefore it was no longer to be suspected that, after the case had been dealt with, he would once again start his activity as a black-market slaughterer. Do you think that fact is relevant; and why did you pass the death sentence in spite of it?
A. Soell's offense was unusually dangerous. For a long time he couldn't be found. The case was only discovered when Soell had moved to Upper Bavaria with his spoils. In view of the extent to which he had engaged in black-market slaughtering, one could not take his age into account at all.
Q. May I draw the conclusion that in this case in particular you passed that sentence mainly from the point of view of atonement and not so much from the point of view of prevention?
A. One can say that in this case it was a punishment of atonement I don't think that the judgment made special mention of that. For the rest, at that time it was known all over the Reich that in the case of black-market slaughterers of such scale, the death sentence was threatened. When the Special Court at Stuttgart, in 1942, had passed the maximum sentence in this case, cases on such a scale never occurred again.
Q. Witness, you have said that this man was the only blackmarket slaughterer who was sentenced to death by you. Do you remember other cases of black-market slaughtering which yon tried, and if so, what sentences were passed? Please give us examples.
A. I can tell you about the Edelmohn case, where the judgment had been submitted; as far as I know, the sentences were penitentiary sentences of two or three years.
Q. In cases of black-market slaughtering which were tried by your Special Court when you were presiding judge, was the sentence always either a penitentiary term or the death sentence?
A. No, in many cases it was a prison term.
Q. Do you remember cases where it was only detention (Haft)?
A. No, that was impossible.
Q. Case 25. In the Stiegler case too, Lawyer Diessem was the defense counsel. I am referring to the following pages in the record: 2263, 2315, 2331, and 2342. On the 31st of March, 1943, the Stiegler case was tried.
Witness, will you tell me first, please, when the Case No. 23, the Schmidt case, occurred, when you complained about Lawyer Diessem, for how long was it that Lawyer Diessem did not appear before the Special Court?
You have already given us some indications about that, but I would like to hear some particulars from you with reference to these two cases.
A In the cases Schmidt, Stiegler, and Englert I can merely work out that the witness Julius Diessem for a maximum period of four to five weeks did not act as a defense counsel before the Special Court.
Q Lawyer Diessem in the case of Michael Schmidt or in the Stiegler case, he on account of the fact that he made that into a Diessem case, may I therefore now ask you the question, what was your reason that you did not turn to the disciplinary court of the lawyers' association, but why did you turn to the president of the Lawyers' Chamber in Stutgart?
A I did not approach the General Public Prosecutor so as not to make too much of the incident. It seemed to me that it was merely necessary to show Lawyer Diessem, through the President of the Lawyers' Chamber, that such incidents were of a doubtful nature and should not be repeated. As for punishment for Lawyer Diessem, in view of the good terms on which we had been previously, I was not interested in that.
Q Lawyer Diessem described matters as if by your action all his work as defense counsel in criminal cases, before the Special Court had been paralyzed. Do you know anything about that?
A I know nothing about that. As I said before, at hand of the dates here I have been able to refute the statement that the work of Lawyer Diessem had been interrupted by three months
THE PRESIDENT: You don't have to compare the dates. All that is necessary is to point out what cases he was in.
BY DR. BRIEGER:
Q One more question. Lawyer Diessem described these matters to make them look as if a German lawyer -
THE PRESIDENT: Now just a moment. You don't have to review what Lawyer Diessem said. Just ask the witness what the facts are.
DR. BRIEGER: I comply with your wishes, Your Honor.
BY DR. BRIEGER:
Q I now come to the next case -
THE PRESIDENT: Counsel, I didn't insist upon your going to the next case. I merely asked you not to review the testimony of Diessem but to ask the question which you have in mind directly to this witness.
BY DR. BRIEGER:
Q Witness, did a German lawyer, in order to defend before the Special Court in general, or, shall I say, in order to appear as defense counsel before your Special Court did he need a special permission to do so?
A No, he did not.
Q I am now coming to the next question, Case 26. The Prosecution has also introduced the Trumpp case, which was tried with you as a presiding judge on 8 December, 1943, and where a death sentence was passed. Do you remember the case?
A The case was tried with me as presiding judge. He was a man who had committed fraud and he was a German and he had repeatedly committed the same offense. I do not know the indictment.
Q I am now going over to the next case, 27. Was the Woessner case treated by the Special Court or the District Court of Appeal? Do you know any details about it?
The witness Berthold Schwarz in accordance with Record Page 1192 was able only to make insufficient statements.
AAs far as I know, the case of Andreas Woessner, together with the Mattes case, which I have already described, was tried by the penal senate of the District Court of Appeal. Both cases, as far as I can recall now, were almost identical. In my view, the judgments were passed at one and the same trial.
Q May I now go over to the next case. That is a case of Winter and Eckstein, the so-called Gipsy-Case, case 28, which has been discussed here a great deal. The witness Eberhard Schwarz testified that this case had been, so to speak, a number in a chain of exterminations of gypsies Please tell us something about this charge of extermination. In other words, first tell us something about this case and then tell us something about all the other cases of gypsies who were tried with you as a presiding judge, always provided that there were any such cases.
A The case of Winter and Eckstein, as far as I know, is the only case of a gypsy which I tried. I have the indictment before me. The defendants were Frederick Eckstein, 38 years old -
Q Was he a gypsy?
A He was not a gypsy. He was born in Wurttemberg The other defendant was Robert Winter, who was 20 years and six months old. He was born in Germany and he was a gypsy. The gypsy aged 17 years and 6 months, Josef Koehler, born at Wurttemberg, and another gypsy who had been born in the Palatinate, Zacharias Winter.
His age was 19.
Q Witness, will you toll me please how many gypsies were indicted, how many were tried by you, and how many did you sentence to death?
A Three gypsies and one non-gypsy were indicted The Prosecution asked for the death sentence of all four defendants, and according to the indictment, that was intended. One gypsy was sentenced to death. The other two gypsies were sentenced to prison terms and as has been mentioned before, Frederick Eckstein was sentenced to death. Frederick Eckstein had 28 previous convictions. The gypsy Robert Winter, who was sentenced to death, had twice been committed for theft, and he also had a few minor convictions. Robert Winter, in Saarbruecken where he was held in detention prior to trial on 26 February 1942, where ho was trying to escape, seriously injured a prison official. Shortly before the trial I was told that I was to be careful in respect to Robert Winter, because Robert Winter had said that he would fling himself at the Court. All the same, Winter was tried without being put into fetters. But the fact that he was dangerous was an established fact. A detailed account has already boon given, and there is no need for me to repeat that. As concerns the reopening of the proceedings, an application for reopening was made at the penal chamber of the District Court of Appeal, and that on 30 November 1942. For 44 days the penal chamber did nothing at all. On 13 January 1943 it issued a decision to discontinue execution of a punishment pending investigation.
When at the end of January, 1943, the law was changed, the Penal Chamber returned the reopening to the Special Court. Although the Special Court had taken the view that the Penal Chamber had dealt with the case and therefore should keep it, only on the 15th of March 1943 after discussion reopening of the case by the Special Court was rejected. That is all I can say about the case.
Q I am now coming to the next case. That is Case 29, the Dobosz and Faryjewicz case. Later I shall offer to the Tribunal Cuhorst Document No. 2, Exhibit No. 8. That is the indictment against Dobosz and Faryjewicz, and I shall further submit Cuhorst Document 16, Exhibit No. 9. That is the affidavit by Bartholomaus Schulte of 19 March 1947. I am now coming to my question. I refer to the exhibits which I have just mentioned. Were you the presiding judge when Dobosz was tried? Please describe the proceedings to us and tell us the results of the trial.
A The indictment which had been filed by public Prosecutor Ruemmelin was the basis. The date was 18 July 1942. On 27 August 1942 the case was tried outside Stuttgart. The indictment by Public Prosecutor Ruemmelin was filed on the basis of the law against Poles. As I had my doubts about that case from the very beginning I tried the case on the spot and after I had inspected the place, I acquitted both defendants. As to what I said to the police official after the acquittal, that can be soon by the testimony by an inhabitant of the village where the Special Court tried the two Polish defendants. The defense counsel in this case was Lawyer Dr. Feifel from Blaubeuren, of whom the witness Witzigmann said here that in the Skowron case he would not have been able to defend his clients properly before the Special Court.
MR. LA FOLLETTE: If Your Honor please, I move to strike out this testimony on the grounds which I understand this Court had made in the Rothaug case, that it would not consider other cases other than those which had been offered by the Prosecution. It may be that Dr. Brieger has a reason for believing that this is material which he may offer that distinguishes it from this prior ruling. I am advised that was the ruling of the Court at that time.
THE PRESIDENT: I should like to ask the witness a question in that connection.
DR. BRIEGER: May it please the Tribunal -
THE PRESIDENT: May I ask the witness a question please. In this case you acquitted the defendants. Was it by reason of the insufficiency of the indictment or because the facts charged in the indictment were not proven?
The Witness: It seemed to me, or rather, it seemed to the Court, that the indictment was not founded either factually or legally.
THE PRESIDENT: Well, the indictment was based on the law against the Poles, I understood you to say.
THE WITNESS: The Public-Prosecutor based his indictment on the Law against Poles.
THE PRESIDENT: Was it your holding that you had no jurisdiction over cases brought under that law?
THE WITNESS: Well, the Court was not bound by the legal opinion of the Prosecution.
DR. BRIEGER: Your reply is not an answer to the question.
THE PRESIDENT: Were you of the opinion that your court had jurisdiction to try cases brought under the law against Poles?
THE WITNESS: Yes. All courts had that.
THE PRESIDENT: Then the reason that you dismissed it was simply that either the indictment was not properly drawn or that the proof was not sufficient for a conviction.
THE WITNESS: Both of those elements entered into it, Your Honor. The defendants had just done something to the piece of machinery. But the law against Poles did not give us any opening to sentence the two defendants for such a trifle. At any rate, sabotage such as the Prosecution had assumed was out of the question.
THE PRESIDENT: Under the circumstances, the motion is denied.
MR. LA FOLLETTE: That is all light, Sir.
DR. BRIEGER: Your Honor, may I -
THE PRESIDENT: You may go ahead with that case.
DR. BRIEGER: I am now coming to Case 30.
THE PRESIDENT: I might say that we do not consider this ruling inconsistent with the position which was taken by the Tribunal before.
MR. LA FOLLETTE: Yes, Your Honor. Well, I simply wanted to present the issue.
THE PRESIDENT: Yes, this case is somewhat different. Case 30?
DR. BRIEGER:
I am now coming to Case 30, the case of Rene Nicaise, and I offer to the Tribunal Cuhorst Exhibit No. 10, Document No 3, judgment in the case of Rene Nicaise.
BY DR. BRIEGER:
Q. Witness, I shell hand you this document and I would ask you to comment on it and to go into details. As far as I have heard, a witness in an affidavit which has not been presented here said that Nicaise was really a child. What do you have to say about that? Was this case one of the first penal cases you tried?
A. I have the judgment passed by the Special Court in Stuttgart before me. It was passed on 7 June 1944, and it was passed in the case of a 19-year old Belgian auxiliary worker, Rene Nicaise. The judgment begins with an appreciation, an assessment of the outer appearance of the defendant, and states that the defendant came to Germany voluntarily as a worker, and that according to the sentence for which the Prosecutor asked, he said he only had one request to make, to be allowed to stay in Germany after he had served his term. The indictment of this case originally had intended that the Prosecutor should ask for the death sentence because of robbery. The prosecutor, Public Prosecutor Ruemmelin, however at the trial deviated from the original idea of asking for the death sentence.