Q I will ask you whether or not in your plea you pointed out that it was not necessary to apply the law against public enemies under the facts in this case? That is, to require the death sentence.
A Yes. I have tried since this case was a minor case and in consideration of the person of the defendant, I have tried with all the means at my disposal to get away from the death sentence. That was the reason why I exposed myself as a defense counsel in that case. It was only the question for him that he noticed on a damaged letter that there was a package of cigarettes containing ten cigarettes in it. He was a passionate smoker and gave into the temptation to take that pack of ten cigarettes, and I emphasize it was a matter of letters, and to smoke them. How many packages there were altogether couldn't be established. The police put to him whether it could have been fifty, and finally he said well, yes, that might be possible. That was how the sentence was based on fifty packs, at forty pfennigs, in consideration of the war time tobacco tax, altogether a value of thirty marks. I tried then to consider the individual acts separately so that by doing so I could get away from having it considered as a continuation of offenses, and thereby necessarily get away from having it characterized as theft. I have said each individual act, in consideration of the small quantity, ten cigarettes, and the small value of sixty pfennigs is a so-called mundraub in the sense of paragraph 373; that is an offense for which the highest measure of punishment would be six weeks of arrest, or a fine of one hundred and fifty marks; in consideration of that fact there were also letters with money. I did not overlook that under existing laws of the time these different acts of mundraub, small thefts, petty food thefts did not have to be chained to the decree against public enemies. My attempts, however, in setting up this scheme was to under all circumstances save the defendants from the death penalty, which, however, was in vain.
Q Was it as a result of your defense in that case that the defendant Cuhorst reported you to the president of the lawyers association of Stuttgart?
A Yes. I know or rather have to conclude that from all which the president of the chamber of lawyers sent to me, Glueck sent to me, shortly thereafter; and in that letter Glueck refers to the fact that the presiding judge of the Special Court approached him on account of the manner in which I conducted the defense and expressed that a defense like mine had to have undermining effects.
Q Were you, in fact, disciplined by Glueck?
A I was not officially disciplined, but in order to spare me an official procedure before the chamber of lawyers, I was prohibited to conduct in the future any defense in the Special Courts and penal chambers. I was told if I would not abide by that request, then the chamber of lawyers disciplinary measures would have to be taken against me, and if I remember correctly, it was also pointed out that the matter would at any rate be sent to the next higher chamber of lawyers at Berlin, and that they with the greatest of measures, of certain they would decide to eliminate me as a lawyer.
Q How long did this request for compliance, that you not appear before the Special Court, and both senates, was it not of the criminal chamber?
A Yes, both.
Q How long did that prevail? When was it lifted?
A It lasted about a quarter of a year; then, two colleagues of mine, whom I knew well and who were members of the chamber of lawyers, very carefully approached Glueck in my favor, and it was changed again. Not officially, but after certain time I again started to practice, however not with the approval of Glueck, but with the approval of the prosecutor.
Q I want to ask you just one more question about the Schmidt case. Was the basic offense under article 370.5?
A. .5.
Q It was not under article 373?
A No, I based my plea on 370.5.
Q This was purely a matter of interpretation Dr. Diessem. I wanted to get it straightened out. I believe that is all.
MR. LA FOLLETTE: I want to point out, so I will not have to jump up and down two or three times, and I did not ask your Honors to refer to it because you should not, but there was in the document book a purported document, NG 463, which I did not introduce for the reason that objection was made that it was merely a letter and not an affidavit.
There is just one more question:
Q Do you remember the Engert case -- the pilfering case after the end of or following an air raid?
A Yes.
Q I will ask you also whether you remember the case of a foreign defendant who was from one of the countries west of the original boundries of the German Reich? Do you remember that?
A Yes, yes.
Q Do you remember what sentence he got?
A The death sentence for pilfering.
Q And, was it executed as far as you recall?
A That I do not know.
Q That was the sentence given?
A Yes.
Q Will you tell the Court briefly on what you base your opinion that this was a man from the west and some of the facts from that case, as you remember it?
A I believe I recall it was a Dutchman, the case was the following: At Stuttgart there was an air raid alarm. We had a very large air raid shelter. It was called the Wagenburg tunnel, and it was a tunnel under construction. On the occasion of that alarm that man, that foreigner, whose name I cannot recall, for his own protection, wont into that air raid shelter. There by coincidence he came to stand or sit next to an older woman who lived nearby. The woman had, apparently considering her age, and physical condition, had a great deal of baggage with her. After the alarm was over and the people left the air raid shelter, this foreigner offered to the woman, that he would try -- that he would help her to carry her stuff home. He accompanied her home. Her house was still standing, and because it had not been an air attack -- just an air alarm, but if I remember correctly it might have been slightly damaged from previous attacks, perhaps the windows and doors and so-on.
Cut of gratitude the woman, it was late at night, took that man who had helped her into her apartment, and in order to show her gratitude -- I do not know exactly whether she wanted to cock something for him or give him something to eat or something else -- at any rate the foreigner was for a certain time alone in the living room of that woman's house, I believe, because she had stepped into the kitchen and he made use of that short time while he was alone to open a drawer of the wardrobe and steal something out of that drawer, possibly a watch of little value -- I do not remember that any more -- some little thing he stole. Then he went away again and by some coincidence, which I cannot remember, it was found out, and he was discovered as having been the culprit.
Q What was he charged with?
AAs a pilfer.
Q That was a pilfer after an air raid; is that correct?
A No, it was not an air raid but an air raid alarm.
Q But, that is what he was charged with?
A He was charged as a pilfer. The law only knows the simple expression of pilfering. The interpretation was a matter for the court, and it was left to the court as to what they considered pilfering.
Q In your opinion, was this act in taking whatever was taken under these circumstances an act which was covered under the pilfering statute or was it a simple larceny?
A Never on the basis of the pilfering act, in my opinion.
Q This man was a foreigner?
A I believe, if my recollection is correct, that he was a foreigner.
MR. LA FOLLETTE: That is all.
CROSS-EXAMINATION BY DR. MANDRY (for defendant Cuhorst): Your Honors, may I begin my cross examination?
Q Witness, in the first case you spoke about the case Stiegler; who was the presiding judge?
A I do not remember that any more.
Q. And who was the prosecutor?
A. I don't remember that.
Q. Could you tell us whether the record of either the sentence of the indictment is in existence? Whether you have seen it?
A. I don't have the files about the case either any more. I don't have the indictment any more. I looked it up and as far as the sentence, we never received that any way.
Q. In the meantime in Stuttgart at the Ministry of Justice or at the prosecution or here in Nurnberg was that sentence ever shown to you?
A. No, I should have liked to read it.
Q. Colleague, you have said you remember with certainty that the Presiding Judge Cuhorst frequently pointed out to the defendant what punishment he had to expect and that it seemed that he did not understand what a serious penalty was possible?
THE PRESIDENT: One moment. The translator does not have sufficient time between the questions and the answers. A short pause there would very much aid the translation. The translator is having some difficulty because of the speed of the examination. If we had just a short pause between the question and the answer it would very much aid the translation.
Q. Does not the Code of Legal Procedure provide that in the indictment already the case has to be characterized according to its legal points and the defendant has to be explained in the indictment already what possible penalties there exist?
A. That I don't know. In the provisions for legal procedure there was nothing mentioned concerning the fact that the Presiding Judge has to tell the defendant what he has to expect.
Q. Does not Paragraph 265 of the Code of Criminal Procedure provide that any change of the legal point of view has to be brought to the attention of the defendant?
A That was not a change of the legal point of view at all because if that would have been the question it could only have been a change in favor of the defendant but the question was like that, how one can make it clear to a defendant what he has to expect.
Q. In the second case Soell, which you discussed, is the sentence still in existence?
A. I don't know. I believe I had a copy. I still have a copy of the indictment but about these unimportant details I could not say anything.
Q. Could you name the Associate Judge?
A. No.
Q. The Prosecutor?
A. With certainty I couldn't tell you his name. I only know that black-butchering was the special assignment of Prosecutor Kleinknecht and therefore I assume that he was the prosecutor in that case.
Q. In the case Soell wasn't that the one where the defendant on account of his devastated state of health was released from imprisonment pending trial?
A. Yes.
Q. Then owing to a misunderstanding on the part of the prosecution it was brought about that he was arrested again? Could you tell us anything as to whether the defendant Cuhorst had any connection with that arrest?
A. About that I could not say anything positively but I do not believe that he had anything to do with it because, of course, at that time it was still in the hands of the prosecutor.
Q. You have explained it had been a matter of taste whether an indictment was charged or even a sentence was put on the basis of the decree against public enemies. Is that correct? Did you say that?
A. Yes, I have said that but from my point of view it was not a matter of taste. It was not question at all.
Q. Could you tell us something about the relation between the obligation to those charges and the extent provided for the trial? The question should clarify how to what extent the Court was caused by the law to establish the connection with the decree against public enemies.
A. In my opinion the Court was -- in no case was the Court freer in his decision than in cases concerning public enemies.-the application of the law against public enemies because the facts were evidence and remained the same and it was only a question of how these facts were charged and whether an act that is otherwise subject to penalty should also be considered under the decree against public enemies.
Q. My colleague, you have told us that a change of legal provisions was in the competency to decide upon pleas for re-opening of trials possibly was caused by experiences made with Penal Chambers in their dealing with these applications. Did I understand you correctly?
A. Yes.
Q. By these wide experiences do you mean that it was on account of the appoints of judges -- personalities of the judges -- or that the quality of their decisions was insufficient, legally insufficient, or do you mean by wide experiences that considering the new directives of the Reich Ministry of Justice the decisions of the Penal Chambers had been too lenient and in dealing with the private Court of the Special Courts they did not take that as an example?
A. The latter is correct. They were not as weak toward their superiors and not so blood-thirsty as they would have liked to have seen them.
Q. You have made these statements concerning the cases Eckstein, Winter, Koehler and Reinhard. Could you give the Tribunal the name of the Associate Judge -- the recording Judge at the Special Court?
A. No, I cannot.
Q. Could you give us the name of the judge who opened the trial?
A. Yes, that is the President Ministerialrat Mueller who is in the Government of the French Zone at Tuebingen.
Q. Do you happen to know whether Ministerialrat Mueller could have been associate Judge in the case itself? That is, at the Special Court or is that impossible?
A. In what case?
Q. In the case Eckstein-Winter, where there was a plea to reopen the trial.
A. I want you to understand me clearly. Mueller was the Special Judge at the Penal Senate No. 3 and not with the Special Court.
Q Thank you for that clarification; I misunderstood you.
A And the associated judge, in the matter of the reopening of the trial-that is, I assume therefore, that the associated judge in the past case was the later Oberlandesgerichtsrat Atzendorf, district Court of Appeals Counsellor Atzendorf.
Q I ask you to be excused if I return to the case of Soell again. You have informed us that Soell, after the sentence was pronounced, had collapsed. Did you as defense counsel, in the main trial, ask for a decision by the Court about the capability of the defendant to stand trial?
A No.
Q One moment; and if you did not do so, did you make an application for the record concerning the state of health of the defendant Did you have it entered in the record?
A No, that was not necessary because everybody could see how the man looked.
Q Wouldn't an entry of that kind in the record have been an important prerequisite for the reopening on the trial? Wasn't it your duty as a defense counsel to request that an appropriate statement be made on the record?
MR. LAFOLLETTE: Just a moment, please. I only want to know what case this is.
DR. MANDRY: It is the case of Soell.
MR. LAFOLLETTE: All right.
MR. MANDRY: In the case Soell, the witness has stated that Soell's state health was devastating.
THE WITNESS: Yes, physically, but he was still capable of attending the trial. He could pronounce his answer and, such a long time of imprisonment in that state of health, after he had been taken away from his apartment, from his home, from his wife, where he was well cared for, after he had been arrested again and again brought into the prison, he insisted personally that finally he should get through it with the trial.
BY DR. MANDRY:
Q In the other cases which you have discussed with the representative of the prosecution, in this cases too, which might easily understand, was it also the wish of the defendants that they should have their trial as soon as possible?
A That is a general wish, or the general request today and before. A man in prison wants to know as soon as possible what his after is going to be, even if he has to expect a severe penalty.
Q I the cases which you have discussed with the prosecution now, were there also defendants who informed you as defense counsel that they would like to see their trials scheduled as soon as possible, even if that schedule was a very close one, or very nearby, and therefore made it difficult for them to consult their defense counsel?
MR. LAFOLLETTE: Just one moment please. Obviously this evidence for the defense. I did not at any time ask this witness any questions about the proceeding of trials. Time element was never asked on direct examination. Therefore the cross-examination does not go to effect the credibility of the witness not to effect any fact about which he testified on direct examination.
DR. MANDRY: I have to admit that this objection by the representative of the prosecution is justified, and therefore, I will withdraws the question.
BY DR. MANDRY:
Q I come back now to the case of the Gypsies. Did I understand you correctly that that four or five defendants, Eckstein, Winter and Koehler, and Reinhardt, were the only ones from a large number of Gypsies--I believe you spoke of a whole group of Gypsies--were the only ones who could be convicted, bu that there were ether offenders who could not be indicted together with them?
A Yes, there was quite a number.
Q Can you tell us about the conditions which were brought about the thieveries of the large number of Gypsies, or of persons who joined up with them? You mentioned Upper Wurttemberg where that occurred.
Could you tell us some more details about that; that is as far at is has been stated in the verdict or in the sentence, or was mentioned in the proceedings?
MR. LAFOLLETTE: Please, don't answer that.
I Object, Your Honor. It is obviously a matter for defense. I didn't touch on this matter at all with this witness. There is nothing; to deny the defendant Cuhorst the right to prove all these facts and then to argue to this Court that his sentences were correct. But I did not ask this witness any questions with reference to the conditions, or with reference to anything except the age of the defendant and the facts surrounding the case trial. We didn't do into conditions in Germany at the time of the trial, therefore it is not proper cross-examination.
DR. MANDRY: I put the question because the witness, if I remember correctly, motioned the conditions in Upper Wuerttenberg, or at least started to speak about them.
THE PRESIDENT: The witness may answer.
THE WITNESS: I have not spoken about the conditions in Upper Wuerttemberg, but I only mentioned Upper Wuerttemberg in order to identify the place where the offense occured.
BY DR. MANDRY:
Q You spoke about the acts committed by Eckstein and Winter, and said there were mostly simple cases theft which were committed by the group or the band. You also mentioned thefts in cellars. Could you tell us something about that; that is to say, other theft with aggravating circumstances was also committed by breaking in, letting in through windows, etc.?
A There were relatively many cases, individual cases, where the defendants were not always together, but one theft was committed by one and two, another two to five, and so forth-- meaning individuals. Among these thefts, quite numerous thefts, there were some of aggravating circumstances according to outlaws.
Q Thank you. I have another question concerning this point, and that is about the record of previous convictions of the four or five defendants.
According to your recollection, wasn't there any defendant who had already served a term in the penitentiary?
A That I would still have understood, particularly since one could not ommit considering the conditions of war time as far as legal conditions were concerned.
Q I believe I have been misunderstood.
MR LAFOLLETTE: I would like to have the Court instruct the witness that he may continue his answer if he wishes to. I thought he was cut off; I don't know.
THE PRESIDENT: I don't know. If he has any further answer, of course we will hear it. Did you have some further answer to make, Mr. Witness?
THE WITNESS: Concerning the penitentiary conditions? No, I would only like to say in order to mention the special case of Winter, I would not have considered a penitentiary term in order.
MR. MANDRY: I am afraid my question has been misunderstood. I wanted to ask whether there was not one among the four defendants who had a previous penitentiary sentence.
MR. LA FOLLETTE: If your Honor please, I object to that. I don't know what it has to do -- I asked this witness particularly about the sentence against Winter, which was a death sentence. I don't know what difference it makes whether somebody else had a previous sentence. It was only about this defendant Winter.
THE PRESIDENT: One moment, please. We see no impropriety in that question. There was same inquiry into those cases, and we think he should be permitted to further inquire about them. We have, however, arrived at the time of the usual adjournment, and we will therefore recess until nine-thirty tomorrow morning.
(The Tribunal adjourned until 18 April 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the Matter of the United States of America, against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 18 April 1947, 0930-1630, Justice Carrington T. Marshall, presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Marshal, you will please ascertain if all of the defendants are present in the Court.
THE MARSHAL: May it please Your Honors, all the defendants are present in the Court with the exception of the defendants Rothaug and Engert.
THE PRESIDENT: Those two have been excused: let the proper notation be made.
You may proceed with the cross-examination.
JULIUS DIESSEM - Resumed CROSS EXAMINATION - Continued.
DR. MANDRY (Counsel for the defendant Cuhorst): Your Honor, I should like to repeat the question which could not be answered last night.
BY DR. MANDRY:
Q. The question is whether, in the case of Winter - Eckstein, the so-called Gypsy case, any one of the defendants had previous convictions as, for instance, a penitentiary or any considerable prison term.
A. I spoke about Winter yesterday, that Winter only had a very short prison term of a few days before that case, and, on the other hand, I think he had had a fine of about ton marks, in both cases for theft.
Eckstein, who was considerably older, As I still recall, had more, and more serious previous convictions than Winter.
However, I believe I recall that these previous convictions, as far as the new case of the Special Court was concerned -- that is, those previous convictions had occurred long ago.
Q. And the other two defendants, do you know anything about their previous convictions? Do you remember anything?
A. I do not know that about the two others, or at least I do not know it any more, because I was not their defense counsel.
DR. MANDRY: May it please the Tribunal, I do not have any more questions in cross-examination.
BY DR. SCHILF (Counsel for the defendants Klomm and Mottgenberg):
Q. Witness, in connection with the case Stiegler -- that was the black market dealer who was sentenced at Ulm -- you mentioned the decree against public enemies. In the direct examination you stated that the application of the decree against public enemies was more or less a matter of taste. In the cross-examination, however, you stated that as far as you were concerned, there was no doubt about it, it was not a matter of taste any more.
The question is, by saying "Geschmacksache", a matter of taste, did you intend to characterize the decree against public enemies as such, or did you want to have it limited to the court or to your own opinion?
A. I did not mean to criticize the law; that is not my task.
Q. Then I would like to ask you -
A. (Interposing) But I wanted to say that the courts which had to apply the decree against public enemies -- and those were the Special Courts --- could, as one may say, apply it if they wanted to, or they did not have to. I was going to say that the courts were not compelled in any way to apply that decree against public enemies. Furthermore, I wish to state that I, from my own point of view, which I have to consider an absolute humane point of view, in a large percentage of the cases, would not have applied the decree against public enemies in consideration of the enormous consequences against the defendants in proportion to the acts that they committed in the individual cases.
Q. In the manner of speaking that the courts were not compelled to apply the decree against public enemies, isn't that a rather loose manner of expressing it? Because there were definite acts which had to come under the decree against public enemies.
A. In my opinion, as I remember it and as I have stated yesterday, there were no definite acts that had to come under the decree against public enemies, but it was a framework within which the offender first had to commit some other acts.
Q. Does that apply to all acts that come under it?
A. I didn't understand that.
Q. What you said, just now, did that apply to all acts which came under the public enemy decree?
A. It would have to apply that it was a "Rahnengesetz", a framework.
Q. Between questions and answers, would you please have a longer pause?
A. I am not supposed to be examined about the law here, am I? Everybody can read that law. However, if I recall the text of the law or of the decree correctly -- it is a considerable time since I have not had to defend such cases -- then murder, arson, and a few other cases were mentioned by name, but in my opinion only as examples.
Q. I come back again to my question, which you have not answered, that the courts were not compelled to apply the decree against public enemies; whether you consider that a formal, legal statement, or whether that was just in the vernacular of the layman.
A. I believe that I am a witness here and 1 have to speak about facts and not give any legal opinions.
Q. Witness, I do not want to instruct you, but you have made two statements: First, that it was a matter of taste to apply that decree; and second, that the courts were not compelled to apply the decree. It is my duty to ask you only how you understand that in detail.
In other words, you are just asked to explain your two statements.
A. Concerning "a matter of taste", I have already said I am of the opinion that the courts were not compelled to apply the decree against public enemies.
Q. If the courts were confronted with the facts, which they had from the main trial, weren't they compelled to apply the public enemies decree?
A. If the judge came to the result, as it was called, that the offender was a type of public enemy, then, of course, on the basis of his conviction, he had to come to the application of the decree against public enemies.
Q. Do you know anything about the jurisdiction of the Reich Supreme Court at that time concerning the type of offender?
A. Yes, that is know to me.
Q. Can you tell us something about the type of offender, of the public enemy, and what point of view or what attitude the Reich Supreme Court had?
A. That I do not remember.
Q. I have one last question. You said yesterday that war-time conditions, of course, could not be without influence on criminal legislation. I would like to ask you whether the decree against public enemies was a measure of war-time legislation exclusively or not.
A. Yes.
Q. Exclusively?
A. Yes, a. measure which had been issued on account of the war.
Q. And which should only be valid for war-time?
A. That I don't know.
DR. SCHILF: I have no further questions.
THE PRESIDENT: Do any other of defendants' counsel desire to cross examine this witness?
(No response)
Has the prosecution further examination in re-direct?
MR. LAFOLLETTE: If Your Honors please, technically I have about two questions which possibly should have been direct. In view of the fact that I don't think they will hurt anyone, I hope I shall be permitted to ask them. If the Court, on hearing them, does not care for me to do so, I will refrain.
REDIRECT EXAMINATION BY MR. LAFOLLETTE:
Q. You were living in Stuttgart at the time of the big air raid in 1944 that injured the courthouse?
A. Yes.
Q. I ask you whether or not the records of the Special Court and the Criminal Senate of the Oberlandesgericht wore destroyed in that raid.
A. At that time much was destroyed by fire.
Q. And what happened to that part of the courthouse in which the records were contained?
A. The main building burned down completely.
Q. Did that include the part in which the records of the courts were contained?
A. I could not say that with certainty. However, I know that records of the Special Court, and probably also of the Penal Chambers, had been kept in the collar. I believe that quite a number of those records were saved.
Q. Do you recall the occasion of the occupation of Stuttgart by the American troops on one side of the river, and the French on the other, in this last war?
A. Yes.
Q. Was it on that occasion , or approximately at that time, that there was bonfire in which prisoners destroyed arm-loads of records?