With respect to the statute against economic sabotage, found on Page 16, Document Book 2, this report states:
"The main purpose of this law was to introduce the mandatory death penalty for an offense which thereto fore was hardly considered a crime."
With respect to the statute inflicting penalties up to death in excess of regular statutory limits permitted for both voluntary and negligent offenses if the sentiments of the people demanded it, which is found on page 43 of Document Book II, this report states the following by footnoted table: the report indicates that this statute has been completely superseded and abolished by Military Government action.
As Exhibit No. 251 we offer the report from which we have just been reading for judicial notice of the Tribunal.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: The prosecution regrets that it must ask for a recess until 11 o'clock sharp, Your Honor, for the purpose of making sure that we have certain things available for a witness to go on the stand at that time.
THE PRESIDENT: We will recess at this time until 11 o'clock sharp.
MR. WOOLEYHAN: Thank you.
THE MARSHAL: The Tribunal is in recess until 1100 hours.
(A recess was taken.)
THE MARSHAL: All persons in the Court will find seats.
The Tribunal is again in session.
MR. LAFOLLETTE: Your Honors please, I would like to have the witness Eberhard Schwarz brought in.
(The Marshal brought forth the witness.)
JUDGE BLAIR: Will the Witness testify in German?
MR. LAFOLLETTE: Yes, your Honor.
EBERHARD SCHWARZ: A witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat this oath after me: I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may sit down.
MR. LAFOLLETTE: First, your Honors, before questioning this witness, I would like to offer NG 414, which I understand Dr. Schilf has examined, as Prosecution's Exhibit 252, and that is in document book 3-L. There is one other document in that book, NG 398. I do not think your Honors will need the book. I am sorry I did not tell you but I want to examine this witness with reference to this document.
THE PRESIDENT: Now, there may be some confusion about this NG 414. This document, I have that marked as Exhibit 246.
MR. LAFOLLETTE: Your Honor will recall that I withdrew that the other day.
THE PRESIDENT: Yes, it has been withdrawn.
MR. LAFOLLETTE:NG 398 contains a list of tho death sentences given at the Special Court, and as I also recall, the criminal sentences of the Oberlandesgerich at Stuttgart. Now, it was not signed in the document book.
DIRECT EXAMINATION BY MR. LAFOLLETTE:
Q Now, Dr. Schwarz, you have before you a photostatic copy of a document which is labeled NG 398; that purports to contain a list of death sentences at the Court of Justice at Stuttgart. What do you know about that list?
A In the summer of 1946, I received from an assistant of the General Prosecutor in Stuttgart -- the present General Prosecutor of Stuttgart, the list which contains all death penalties which had been executed from the year 1942 until the destruction of the court house in Stuttgart, and asked me to check that list with my notes, and if necessary to supplement it. I did that. A supplement was only necessary concerning the dates in a very few cases. The list, that is to say, the notes, beginning from the year 1942, were made in the manner -- that I was on the day before the execution of death sentences -- I went into the prison where I had an opportunity to look into the official notes which were sent to the prosecution for the execution of sentences, and from these official notes I have made the notations for myself. Therefore, I was in a position to check the accuracy of the list -- of that list which was given to me by the General Prosecutor and to confirm it and to make the necessary supplements.
Q Now, the list you received from the Prosecutor's office container more names than those in the photostatic exhibit which you have there before you; is that right?
A It contains more names, and that is because in Stuttgart not only death sentences of the Special Court and Penal Senate of the District Court of Appeals in Stuttgart were executed, but also sentences passed by the courts from other cases, that is, from Baden and Alsace, and other places.
Q Now, the photostatic copy then contains only those names of people who were executed or sentenced for execution which were from the Special Court at Stuttgart and the criminal sentences of Oberlandesgericht Stuttgart; is that correct?
A Yes.
Q Now, do you have also with you a mimeograph copy of this document, NG 398?
A Yes.
Q This morning did you go over that list and mark those cases, in which you are prepared to testify under oath, that the defendant Cuhorst acted as presiding judge?
A Yes.
MR. LA FOLLETTE: I do not know of any other way to do this, your Honors, than to read this. It will take a little time, but it is the only way.
Q No. 13, Leczinski?
A Yes.
Q No. 14, Pitra?
A Yes.
Q No. 15, Strawcwski?
A Yes.
Q No. 16, Majcher, Stanislaw?
A Yes.
Q No. 27, Polleck, Helene?
A Yes.
Q No. 29, Krupa?
A Yes.
Q No. 36, Fritz?
A Yes.
Q No. 37, Neuschwander?
A Yes.
Q Now, I will ask you to turn to the last page of that document that you have, and you will read 113, Wagner. Did you mark that?
A Yes.
Q Did you mark Rueffer, No. 114?
A Yes.
Q No. 115, Jatzeck?
A Yes.
Q Now, will you turn to the photostatic copy and tell the Court whether or not these last three names followed the names, Fritz and Neuschwander on the photostatic exhibit?
Are they the same on the photostat?
A Yes, they are the same.
Q The same on the photostat as they are on the German copy; is that right?
A Yes.
Q I ask you whether or not the dates with reference to cases 113, 114, and 115, which appears in the German copy as 22 October 1944, should be the 22 October 1942?
A They should read 1942, because that was the trial where all the defendants were sentenced on the same day.
Mk. LA FOLLETTE: I call the Court's attention to the fact that in the English document book the year 1942 appears, and in the German book there is a typographical error, the year 1944 appears.
Q Now, then we turn again to the list. Do you find No. 39, Paetzold?
A Yes.
Q No. 41, Ezkstein?
A Yes.
Q No. 42, Winter?
A Yes.
Q No. 43, Milk?
A Yes.
Q No. 45, Margitay?
A Yes.
Q No. 51, Esterle?
A Yes.
Q No. 57, Cehlbach?
A Yes.
Q No. 58, Schmidt?
A Yes.
Q No. 65, Englert?
A Yes.
Q No. 66, Stiegler?
A Yes.
Q No. 72, App?
A Yes.
Q No. 73, Keudelka?
A Yes.
Q No. 77, Kreutle?
A Yes.
Q No. 87, Wolf, Karl?
A Yes.
Q No. 88 Wolf, Wilhelm?
A Yes.
Q And, then, No. 97, Pfaud, Karl?
A Yes.
Q No. 106, Grassman?
A Yes.
Q Now, returning to No. 73, Keudelka, can you assume as a proven fact, that Keudelka and App were tried on the same day, and that the defendant Cuhorst, as the President of the Special Court, presided at the trial of Keudelka and App? I ask you whether or not you are prepared to assume as a fact, that Keudelka was also tried by Cuhorst, and to state why you believe it?
A. Yes, that's so. If the Special Court had proceedings scheduled outside of Stuttgart and the Presiding Judge took place in that trip then it was quite impossible that, say, an efficient judge, could have taken part in the proceedings. He, as presiding Judge of the Special Court, was always Presiding Judge of the proceedings outside of Stuttgart of that Special Court.
MR. LAFOLLETTE: At this time, your Honor, the prosecution offers Exhibit No. 398 as an accurate list of the death sentences given and executed as a result of sentences given by the Special Court and at Stuttgart in Criminal Senates Nos. 1 and 2 of the Oberlandesgericht at Stuttgart. We also offer it as evidence of death sentences given by the defendant Cuhorst or the individuals named by this witness at this time. In other words, I may have other witnesses who will identify names from this list as being cases in which the defendant Cuhorst presided. I think I have established the validity and accuracy of the list; then the Court will remember that previously there has been testimony that the records of these Courts were destroyed at Stuttgart and also evidence, although it isn't material on this point, that the newspaper in Stuttgart published accounts which came with the approval of the prosecutor's office so that the list, I believe, I have established as having full probative value but I offer it for that purpose and as against -from this witness, as against this defendant. I only offer it as against those names which he has just listed.
THE PRESIDENT: Nothing was said about dates.
MR. LAFOLLETTE: If your Honor please, you have the document book. Opposite each number which I have given a name is the date.
I only thought it necessary to identify through this witness.
THE PRESIDENT: You say, we hare the document book. What document book is it?
MR. LAFOLLETTE: If your Honor please, I am sorry. I said at tHe beginning that it is in the Document Book 3-L and I should have brought this book in but this is the only document I wanted to put in and the last one from that book.
THE PRESIDENT: What exhibit number will you attach to this?
MR. LAFOLLETTE: I will attach Exhibit No. 253. It's Exhibit 253.
THE PRESIDENT: It will be received in evidence. I am wondering if there is any question abort the Tribunal actually receiving 252 in evidence?
THE SECRETARY: The Court ruled that it will be received. This large book.
Q. Dr. Schwarz, your name is Eberhard Schwarz and you live now at Stuttgart. Is that correct?
A. Yes.
Q. Now, you have signed an affidavit in this matter?
A. Yes.
Q. Dated 2 November 1946?
A. Yes.
Q. Before Mr. Einstein?
A. Yes.
Q. That is Exhibit -- it's been previously introduced as Exhibit 209, your Honor. I will ask you whether or not you were in any way oppressed, coerced or intimidated to sign that affidavit?
DR. BRIEGER: I should like to raise an objection to that question. Dr. Brieger for the defendant Cuhorst -because ail other questions as to how the affidavit was brought about would be made impossible for us.
THE PRESIDENT: I don't understand that.
DR. BRIEGER: Your Honor, may I say some more about that?
THE PRESIDENT: The objection is overruled.
Q. I am not trying to preclude but I am trying to prove what has happened previously. I will ask you whether or not you wrote your own affidavit, Mr. Schwarz?
A. I have dictated that affidavit myself.
Q. And the language in there states accurately the facts that you cared to state and your opinions therefrom as an attorney; is that right?
A. Yes.
Q. Now, will you tell the Court your legal training and the positions that you have held -- particularly with reference to the time that you were at Stuttgart during -- from the year 1939 up to the end of the war?
A. In the year 1939 I was still a student; after passing the first examination I came as a legal clerk to the District of the District Court of Appeals Stuttgard and in the course of my training at the end of 1941 or maybe the beginning of 1942, from then on until May 1944 I was with the Stuttgart Courts in charge of prosecution, penal chamber, civil Courts and the usual stations of training.
Q. Did you attend tho Special Court in the Criminal Senate of the Oberlandesgericht over which the defendant Cuhorst presided?
A. Yes.
Q. As often as it was possible for you to do so during that time?
A. Yes.
Q. Roughly how many cases did you hear the defendant try or do you remember? That is, how many per month or how many per week or low often were you in the courtroom?
A. That differed, greatly - it varied greatly because as I said before Special Courts in many cases, sometimes less frequently did have sessions in the District but not in Stuttgart itself and because the Presiding Judge of the Special Court frequently was in charge of this personally and during that time could not be active as a presiding Judge in Stuttgart himself.
Q. Were you present in the Courtroom during the trial of Milk and Margitay?
A. Yes, during the entire trial.
Q. Do you know Dr. Riesinger, who defended the two defendants?
A. Yes.
Q. What nationality was Milk, if you recall?
A. Milk was Baltic.
Q. And Margitay?
A. Margitay was Hungarian.
Q. What acts did they do? What were their offenses? Tell the Court about the facts of that case and the trial of that case?
A. The two defendants in the course of several weeks had committed about 20 burglaries, some in the night by climbing walls of houses.
Q. Under what section of the statute were they tried, if you recall, or under what provisions?
A. As public enemies.
Q. Now, do you know anything about defense counsel in that case being called in by the defendant and told not to take any time with the case?
A. No.
Q. I will ask you whether or not during those robberies those defendants robbed the house of the Gauleiter in Stuttgart?
A. Yes, the two of them had broken into the house of the Gauleiter. The public talked about that even before tho proceedings -- talked muck about it, and one said that on the occasion of that robbery in the house of the Gauleiter the two thieves took out a considerable measure of food and other articles that were quite rare in the population at that time.
Q. Did the defendant Cuhorst make any comment about that fact in the trial of these men?
A. Yes, mention was made of that also, and the presiding judge very definitely stated that that was a case of libel. The two had only stolen a camera which belonged to the adjutant of the Gauleiter, a few pieces of under-clothing, and a piece of pie or cake, which was left over from the birthday of the son. The son had had his birthday the day before the robbery.
Q. The defendant volunteered that statement because of the rumors or the story that was generally going around Stuttgart; is that your opinion?
A. He referred to the rumors circulating at th t time and stated that the proceedings had proved that there was not a true word about that.
Q. There was nothing wrong with the Gauleiter's house, no extra food there, is that right?
A. Yes.
Q. What sort of things did these two defendants take, generally?
A. Food, underclothing, watches, jewelry, and wherever possible, money.
Q. Do you recall whether this was the first offense?
A. At that time both of them stated that they had no previous offenses, or previous convictions. That could not be checked because both were from foreign countries, and from there it was not possible, apparently, to get any information.
Q. They had no previous convictions in Germany as far as the proof was concerned, is that right?
A. No.
Q. I will ask you whether or not you recall, was this one of the cases in which the defendant Cuhorst announced to these men that they would be sentenced to death at the beginning of the trial, before the trial had ended?
A. It was not told to the defendants themselves, but the trial was very short; at most, including the deliberations and pronouncement of sentence, it took only one hour.
Q. From your observation of the trial of cases involving that number of burglaries, in criminal procedures other than those in the Special Court, what would you say would have been the normal period for trial of a case of that kind?
A. I am convinced that before a normal Penal Senate a case of that kind would have lasted at least one day.
DR. BRIEGER: Concerning this question, I want to raise an objection because tho witness is purely asked for his opinion on the basis of his limited experience as far as tho defendant Cuhorst is concerned.
In the event that my objection should be sustained, I ask that that question and answer be stricken from the record.
MR. LAFOLLETTE: I think the weight of it is for the Court.
THE PRESIDENT: Objection overruled.
MR. LAFOLLETTE: The Court is to give the weight to it.
BY MR. LAFOLLETTE:
Q. What was the sentence of those two men?
A. Both defendants were sentenced to death.
Q. Do you know whether in fact they were executed?
A. The execution took place in fact.
Q. Were you present during the trial of Oelbach?
A. During the trial against Oelbach, I was not present. It did not take place in Stuttgart.
Q. You stated certain facts in your affidavit with reference to that case. What was the source of your information about the Oelbach case?
A. When Oelbach was sentenced to death, after he had been sentenced he was brought to the prison in Stuttgart. There he made an application to be permitted to put into the record an application for retrial.
I had been with the Penal Chamber for training before, and I was told by the presiding judge of the Penal Chamber to go into the prison and take down the application made by Oelbach.
Q. And you did?
A. Yes.
Q. The facts that you have stated in your affidavit are the facts which you obtained from that interview with the defendant, I mean, with the then convicted Oelbach? Is that correct?
A. That was based on the conversation I had with the defendant Oelbach, and a further conversation with the prosecutor who dealt with the case and who also pleaded the case in the sessions.
Q. Were you present at the trial of Robert Winter and Eckstein?
A. Yes.
Q. What nationality were Winter and Eckstein?
A. The nationality -- that is, the citizenship -- is not quite clear to me. At any rate, Winter was a Gypsy, whereas Eckstein was not a Gypsy, but had traveled together, with the other defendant, with a group of Gypsies.
Q. How old was Eckstein?
A. That I do not know precisely; according to his looks I would say he was about 40 years old.
Q. And Winter?
A. About 20.
Q. What was the extent of the prison terns that Winter had before, or the sentences, if any, that Winter had before this trial?
A. Winter, as I found out at that time from the indictment, had been sentenced twice before; once with a prison term of a few days or arrested for a few days, and the second time with a fine of, I believe, 20 marks.
Q. And what did those Gypsies take? Was it valuable? Or, how much did they get?
A. First of all, food and several bicycles.
Q. What was the sentence against Winter?
A. Eckstein and Winter were both sentenced to death.
Q. Do you recall who defended Eckstein and Winter in that case?
A. Yes, it was Dr. Diessem, Attorney Dr. Diessem, from Stuttgart.
A. Was that case tried before the Special Court?
A. Yes.
Q. The defendant Cuhorst presided?
A. Yes.
Q. I won't ask you for the particulars; I just want to know, was there a proceeding filed for a reopening of that trial or for a new trial of that case?
A. It is known to me from conversations which I had at that time with Attorney Diessem, with whom I worked as legal clerk, that he had requested a trial for both of these defendants. That application was granted at first by the Third penal Chamber. In the meantime, however, the competency to grant retrials had been changed to the extent that now the Special Courts themselves had to decide about applications of that nature. I know that then the case came book to the Special Court, it was referred back to the Special Court, and the Special Court rejected the application.
Q. And was that Special Court presided over by the defendant Cuhorst that rejected the application?
A. Yes.
Q. You state in your affidavit that "Perhaps the most significant expression of the tendency of the Special Court was reflected in a remark reported to me where Cuhorst was to have said to his colleagues of the Bench, when leaving the conference room to enter the Courtroom, 'Viola, gentlemen, let us go to the slaughter bench.'" Will you tell the Court whether or not a death sentence would follow those remarks, if you recall, and what were the circumstances under which you heard them?
A. As I have already stated in my affidavit, I did not hear those personally.
I was told about that, in 1942, by a colleague, the legal clerk Hochstaetter, in Stuttgart. Hochstaetter said that remark had been made on the occasion of a trial at Sigmaringen, where he had been for training. It was the case of a sex criminal who then, after that remark had been made, actually was sentenced to death.
Q. Do you recall the case of a young polish boy named Pietra?
A. Yes. Will you tell the Court some of the facts -- I withdraw that.
Did you witness that trial, as you recall?
A. Pietra was a young Pole, less than 20 years old. I think he just have been about 18 years of age. The charge was that as a Pole he had intercourse with a German woman, which was prohibited by the then existing laws. Pietra confessed th t fact in the trial and stated furthermore, that had been the first time in his life that he had had intercourse with a woman.
The witness who was heard during the trial was apparently not of a high moral level, which could be seen from the fact that she had been confined to a correction institution in her youth. She had to admit, on the questions put to her in the trial, that the initiative for the acts with which the defendant was charged had come from her. One night she went to his room after he had gone to bed.
Q. And what was the sentence of the defendant Cuhorst against that defendant?
A. Pietra was sentenced to death.
Q. Do you recall, was that sentence actually carried out, or was there a remission? I don't know.
A. No. I remember that later I heard in the prison that Pietra got only eight years of prison. What court it was which commuted the sentence I could not tell.
Q Do you recall the case of Leszinski some time in the late spring of 1942, a Pole?
A Yes.
Q Did the defendant Cuhorst try that case?
A Yes.
Q Was it tried in Stuttgart?
A Yes.
Q Do you remember, were you a witness and present at the trial of that Pole?
A Yes.
Q What was the sentence?
AA death sentence.
Q Was he executed?
AAccording to my notes, yes.
Q Tell the Court the facts of that case as you recall them.
A Leszinski, if I remember correctly, was an agricultural laborer with a peasant near Leonberg, and for reasons which I do not know, together with other Poles who were there and who were dissatisfied, he had various conversations and among other things ho said they should damage their tools so that they wouldn't have to work so much. Apart from that, if I remember quite precisely, in a room of the farm house he took a postal card with Hitler's picture from the wall and touched his body in an indecent way with it.
Q Will you help the interpreter and tell him approximately what part of his body he touched with it?
A His seat.
Q And he was sentenced to death, this Pole?
A Yes.
Q Now, you remember the case of Englert?
A Yes.
Q What was the Englert case about?
A Englert was indicted as a looter.
Q What and when were the acts of looting performed by Englert?
A I do not remember it precisely, but I know that it was not during or immediately after an airraid, and that because Englert as a chauffeur worked in Kannstadt, and his job was to remove rubble from houses that had been damaged by airraids. Therefore it must have been a considerable time after an air attack.
Q Was he convicted under the decree against public enemies, do you recall?
A Yes. Looting is a fact that belonged under that public enemy decree.
Q I will ask you whether or not in interpreting that law it was not in accordance with proper and good legal procedure to hold that looting which was punishable by death was a looting which existed during the time of an airraid, or while the inhabitants were recovering from the immediate shock of the airraid or during blackout or even after blackout only while there was the shock of the airraid still on?
A The wording of the law, as much as I remember it, does not say anything about that. But as one could see from publications at that time, the fact was at first that sentences for looting were only pronounced if the criminal offense had been committed during the airraid or immediately thereafter.
Q What was the year of the Englert case if you recall, if you have any way of refreshing your memory?
A From memory I cannot remember the year right now.
Q Do you find Englert on the list that you have there?
A Yes. Under name 65. The date of the trial was the 24th of March 1943, and the death sentence was executed at Stuttgart on 17 April 1943.
Q If you recall, when did Englert take whatever it was he took with reference to an airraid, or what were the circumstances, the facts in his case?