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.
The Court assumed that it was not a case of robbery and sentenced the defendant to four years in the penitentiary. The Prosecutor had asked for six years. If a witness in an affidavit which has not been submitted here expressed the view that he had to tell me that the defendant Rene Nicaise was nothing more than a child, all I can state is that I am pretty good at estimating the age of defendants, and that --- well, I can show at hand of a case which we will discuss later --
Q. Yes, later. Later I am coming that case later. Now I am coming to case 31, the Richnowski case. I shall offer to the Court Exhibit No. 11, Document No. 5. Both documents contain the judgment against Richnowski and others. The date is 19 January 1944. Witness, may I ask you to comment on this judgment?
A. I have here the verdict passed by the Special Court at Stuttgart on 19 January 1944 in the case of Leopold Richnowski and eight other defendants, all of them foreigners. The defendants were Hungarians, Croatians, Serbs, and one Frenchman. The main Defendants, Richnowski and Popovic, had smuggled 1.6 tons of bread coupons -- that is to say, bread coupons to the value of 1.6 tons of bread. The Court found that the defendants had to be punished for trading in bread coupons. Richnowski was described as being a big Black Marketeer and the Special Court found that such people had to be stopped from engaging in their trade by sentencing them to heavy terms. The sentences were as follows: four years in a penitentiary for Richnowski; one year and six months in a prison for Popovic; and one week to five months imprisonment for the other defendants. As the witness Berthold Schwarz said, if he said that he had seen judgments where it was considered advisable to pass heavy sentences by way of making an example of foreigners, I imagine that he was having this particular judgment in mind.
Q. Witness, have you already mentioned that nationality of those foreigners?
A. Yes, I have.
Q. Think you. I am now coming to the next case, Case 32. This is a case of the Prosecution. It is the Skowron case, with which the Prosecution dealt in great detail. A Prosecution witness has testified to this, and his testimony appears on Page 2056. This Prosecution witness, Dr. Witzigmann, was cross-examined by me and he made very detailed statements, and I think they were very material statements. He made these statements on 27 May 1947, Record Page 3670. I further refer to the indictment presented by the Prosecution, NG 1253, Exhibit 465. I should now like to hear what you know about the case, and I think I may assume that the indictment signed by the then Senior Public Prosecutor Link is on your desk. I now hand you for your information a document which later I shall offer to the Tribunal. It is Cuhorst Exhibit No. 12, Document 6. The document deals with the appointment of the Defense Counsel Dr. Feifel in the Skowron penal case of 21 May 1943. Witness, please comment on the case as a whole, and also in particular on the document which I am now handing to you.
A The prosecution at Stuttgart on the 10 of May 1943 filed the indictment written by the witness, Public Prosecutor Ruemmelin. The defendants were Skowron, a Polish farm hand; Ferdinand Potschivalschek, a Slovene and Arandel Dulic, a Sorb farmhand. According to the indictment, it was intended to ask for the death sentence on Skowron and Dulic, and a defense counsel had to be officially appointed for those two defendants. The defense counsel who was officially appointed for those two defendants--and tho appointment was made on the 21 of May 1943 -was a lawyer Dr. Feifel from Blaubeuren. I have the document appointin him before me. It also contains the summons for the trial on the 9 of June 1943, nine-thirty in the morning, at the Local Court of Ehingen on the Danube. Furthermore, a copy of the indictment was given to the defense counsel and he was told that the court files would be sent to him at an early date.
The defense of the defendant Skowron was stated to be a crime against the Public Enemy Law and others. I should like to point out that that information to the defense counsel of the Polish defendant was entered on a form which even before the beginning of the war, that is to say, in July 1939, had been printed. At the same time, the defense counsel received permission to visit his client and to visit both his clients, and that permission I have before me in the original.
Q Witness, what do you mean to say by going in to so much detail? I assume that you mean to say, do you, that you did not treat the defendants--those Polish defendants--any worse than you have treated a German subject?
A The proceedings were just the same as they would have been in the case of any German. The trial was hold at the Local Court at Ehingen on the Danube. The courtroom is about a quarter tho size of this courtroom. During the examination of the defendant Skowron, an incident occurred. The co-defendant Potschivalschek flung himself on Skowron, and in order to make sure that proceedings could continue, Potschivalschek, for the time of Skowron's examination, had to have his hands mannacled.
Skowron, who according to the indictment--the statements of which have been largely corroborated--was a habitual criminal, incriminated Potschivalschek seriously. Neither the court nor the prosecution, however, believed the defendant Skowron, and the witness Witzigmann, who was examined here, naturally attacked the credibility of the prosecution Witness Skowron. The client of the Witness Witzigmann was acquitted. Skowron, for serious thefts while utilizing the blackout, was sentenced to death as a Public Enemy. Dulic, his assistant, was merely sentenced to a prison term. The indictment by the witness Ruemmelin is extremely detailed and he entered every little detail into the indictment; in particular, he mentioned a number of minor offenses and evaluated them as offenses under the Law Against Poles. For these offenses, the Special Court, in accordance with its old custom, did not convict, but reduced the case to its essentials, and they were continued serious thefts under exploitation of the blackout, and it was for that that Skowron was sentenced.
Q Did Skowron only harm Germans by his thefts of foreigners as well?
AAs far as I know, Ukranian farmhands also had considerable amounts of money stolen by him.
Q I wasn't referring to money. I was referring to other things.
A Well, he also stole boots from them.
Q Why did you consider that a serious offense?
A I considered that a serious offense because at the time it was difficult to got boots.
Q Would you say that foreigners, farm hands in particular, suffered from that shortage?
A They were difficult to get for everybody.
Q In this connection, I am coming to an important question. Do you think you can remember whether Skowron was sentenced to death, if not exclusively yet by applying the Law Against Poles as well?
A No, I don't believe that, for in the summons for the defense counsel we hadn't even mentioned the Law against Poles. The introduction of the Law Against Poles into this case was a presumption committed by the Prosecution.
THE PRESIDENT: Was it referred to in the indictment?
THE WITNESS: It was mentioned in the indictment among other legal provisions; that is to say, the Law Against Public Enemies, the Law Against Poles, the Law Against Habitual Criminals.
BY DR. BRIEGER:
Q The prosecution mentions a reason as to why in your view the man was definitely a habitual criminal--or to put it more definitely--a professional criminal. But the matter to which I am referring here, that you can only carefully indicate on account of the dignity of this Tribunal.
A It was found that the defendant Skowron, during one of these thefts, on account of an old superstition of thieves, left his excrements in the house where he had committed the theft. Such things allow one for certain to draw the conclusion that the offender was a habitual or professional criminal.
Q Because for them, if I understand you correctly, that is a sort of superstition?
A That is a superstition which is wide-spread in central and eastern Europe with criminals.
Q What is the superstition actually which gave a psychological explanation to the matter?
A I can't tell you that.
THE PRESIDENT: May I ask you a question? One defendant, Skowron, was sentenced to death, and one to imprisonment. Who was the one that was imprisoned?
THE WITNESS: The defendant Dulic was sentenced to imprisonment.
THE PRESIDENT: He was the other Pole?
THE WITNESS: No, he was a Serb. Yes, a Serb. The man who was acquitted was a Slovene, and the man who was sentenced to death was a Pole.
BY DR. BRIEGER:
Q What was the reason why one of the defendants--I don't want to talk about the one who was acquitted--but what was the reason why one of the two defendants was merely sentenced to a prison term; whereas the other one, and that the Pole, was sentenced to death?
A The defendant Dulic had taken part in only a few of the thefts committed by the defendant Skowron. As a rough estimate, the defendant Dulic only took part in a fourth of the offenses which Skowron committed.
Q Was there perhaps also a difference, as far as the previous convictions of the thieves go? Can you tell us anything about that?
A We could not establish anything in previous convictions.
Q In both cases?
A No, not in either case.
Q In connection with that subject, I would like to ask you a question of basic importance. Did you over convict a Pole and sentence him to death purely on the basis of the Law Against Poles? I said, did you sentence him purely on that basis?
A I do not know of any such cases.
Q Did the Special Court at Stuttgart over conduct special pro-ceedints against Poles within the meaning of the Law Against Poles of the 4 of December 1941?
A Not in one single case.
Q How was that possible? Was the application of the Code of Procedure within the Law Against Poles obligatory or was it merely a possibility to apply that?
A The provisions were optional, and the Special Court at Stuttgart had no reason whatsoever to employ special methods of procedure against Poles. That would have been impossible from the technical point of view alone.
THE PRESIDENT: After the recess, would you tell us what section of the Law Against Poles it is which gave discretion to the court to determine whether or not that law would over be applied. We will take our recess now for 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. BRIEGER: I am waiting for your permission to take up the examination of my client Cuhorst.
THE PRESIDENT: Proceed.
BY DR. BRIEGER:
Q. Witness, I have submitted to you now for the first time the so-called law against Poles in regard to what you just said, and I ask you to make further explanations provided that they are essential. Furthermore, I offer you the opportunity to correct the testimony you made so far because I am rather skeptical as to whether these were obligatory regulations as to procedure.
A. I have here the so-called Pick edition of the penal code of procedure. This is the form which we used at the German courts. From the law against Poles and Jews of 4 December, 1941, those provisions which arc decisive for the German courts, are Articles I, II, XIV to XVIII. These have been reprinted. Article VI to XIII--or rather IV to XIII, which are not reprinted in this appendant are regulations governing the legal procedure, which, according to Article XIV are merely applicable for those courts which arc situated in the incorporated eastern territories. From the excerpts of the law against Poles and Jews, that a.re reproduced here for the use in German courts, it can be seen that these regulations governing legal procedure are not to be applied to the courts in the Altreich. This is how it happened that the courts of the Altreich, generally, had no knowledge at all of these possibilities of procedure in the incorporated eastern territories since all courts worked from these manuals and not from the Reich Law Gazette. In any case, one thing is certain, and this also has been confirmed by the law in usage in Stuttgart, namely, that special provisions for penal procedure against Poles in Stuttgart and other places in the Altreich were not provided by law.
THE PRESIDENT; I wasn't asking what practice there was. I understood you to say that it was optional with the court to enforce the provisions of the law against Poles and Jews, and I asked you to show me what provisions of the statute there is which makes that law optional.
Of course we understand that the law gives discretion in different situation as to the punishment to be imposed, but that is a very different matter. Do you contend that it was optional with any court whether it would apply in a proper case the substantive criminal provisions contained in the law against Poles and Jews?
A. Your Honor, your question refers to substantive criminal law.
THE PRESIDENT: It does.
A. It was not optional for the German courts as to what penalties they wanted to impose. The German courts were bound by the scope of the penalty provided in the law, that is, insofar as the law against Poles and Jews was applied, they were bound by this law. As I have said, I myself do not recall any case where the penalty, except for the manner of penalty, if there was a prison term, was taken from the law against Poles and Jews , but even if one assumed such a case, the courts would have been bound by the scope of the penalty provided in law against Poles and Jews. Further discretion was not allowed to the courts. From the point of view of procedure, I was mistaken, because before the recess I did not have the full text of the law in front of me, but now I can see from the law that the procedural regulations of this law were not to be applied to the territory of the Altreich.
BY DR. BRIEGER:
Q. Witness, do I understand you correctly to say that you maintain what you said before the recess, namely, that your special court never applied special procedural regulations against the Poles, but as to the reason or the motive that was the extent of your error?
A. I erred only to that extent; the facts, as such, remained unaltered.
Q. I believe that has clarified this case. Now, I want to discuss Case No. 33, Pohilski, Arnold Pohilski.
With regard to this case I offer Exhibit 13, NG-4. It is the sentence against Arnold Pohilski of the 1st of December, 1943. Witness, please tell the Tribunal first-after I have shown you the judgment -- whether he is a German or a foreigner; and if he is a foreigner, what nationality did he have?
A. The defendant Arnold Pohilski was a Roumanian of German blood. I cannot gather from the judgment whether he had already acquired German citizenship.
Q. Do you mean to say by that, that he was born as a foreigner?
A. He was born as a foreigner in Roumania.
Q. Would you thus assume that the Roumanian government regarded him as a Roumanian or as a German?
A. I believe that he was still to be regarded as a Roumanian.
Q. What do you gather from the judgment?
A. The judgment is from the 1st of December, 1943; I was presiding judge. It was passed by the special court in Ravensburg. The facts are that Pohilski had stabbed his wife to death. The prosecution indicted him for manslaughter and asked for a long penitentiary sentence. The special court sentenced the defendant only to a prison tern; however, it stated that this sentence was supposed to serve to warn the fellow citizens of the defendant who had to assimilate themselves to the prevailing order in Germany. On the other hand, it considered in favor of the defendant, that it was merely an act of despair.
Q. May I go over to the next case, Case 34, Souechre. For this I submit Cuhorst Exhibit No. 14, NG-7, namely the sentence against Edward Souechre of the 7th of March, 1944. Witness, please first tell the Tribunal whether he is a foreigner; and if so, of what nationality.
A. The defendant Souechre was a French worker, 38 years of age. The judgment indicates that the defendant was in Germany voluntarily and that he committed his crime there. The sentence shows the offense was very mysterious. The expert physician did not want to say that the defendant had a lessened responsibility; the court was of the opinion that a man in his right senses could not commit such an offense, and the court on its part found that he had a reduced responsibility.