AAs I said before, Englert as chauffeur on a truck, a truck driver, which was put to use to remove rubble, used the opportunity to enter cellars of abandoned or damaged buildings and took out various objects. What they were in detail I do not know any more.
Q But this taking was after the airraid had ended and there was debris there and the truck was out on the street cleaning it up; is that correct?
A It must have been over for a long time, because the rubble was not removed immediately after an airraid and the buildings are not abandoned in that way. These offenses must have been committed during the day.
Q I will ask you one more case. Do you remember the case of Kettlitz?
A I remember the case of Kettlitz. It was tried in Stuttgart as the first great case of black marketing. In the year 1942 -- I believe it was in the fall of 1942, the indictment was submitted by Prosecutor Sattler, and apart from Kettlitz there were five or six other persons indicted. The Prosecution in this case for the first time requested for an offense of that kind, which was considered a crime against the decree concerning the war economy, the death penalty.
Q Do you remember, was there a Judge Wagner as an associate judge in that case?
A The Then Landgerichtsrat Wagner was the reporting judge, Berichterstatter, in this case.
Q And the defendant Cuhorst presided?
A Yes.
Q And what was the sentence?
A Kettlitz was sentenced to ten years in the penitentiary.
Q Were you present during that trial?
A Yes.
Q What was the treatment of the defendant in that case and his counsel, if any, as you recall it?
AAs a listener in this case, a spectator, one had the impression that the presiding judge had the intention on his part to pronounce a death sentence. That could be seen from various statements to the effect that the Special Court had to do away, to finish these parasites on principle.
Q Do you know what happened to Wagner after the sentence was handed down in that case of ten years, with reference to whether he sat on the Landgericht thereafter?
A District court counsellor Wagner a short time after the case Kettlitz, was transferred and came as a single judge to the local court Stuttgart, As for the reasons for that transfer, I had no information on that subject, but among colleagues, especially among the attorneys that had to do with that trial, it was said that Wagner, during the deliberation about the sentence, had offered a great deal of resistance and objection and that the presiding judge was outvoted by the two associate judges, which made it a prison term rather than a death sentence. Wagner also stated that at the time to colleagues whom he knew well, for instance lawyer Diessem.
MR. LA FOLLETTE: That is all. He may be cross examined. Thank you, witness.
DR. BRIEGER (Counsel for Defendant Cuhorst): Your Honors, may I be permitted to begin my cross examination?
CROSS EXAMINATION BY DR. BRIEGER:
Q Witness, you have quite in detail described your education and your training, and in that connection I should like to put a few more questions to you. Where did you pass the first law examination, the State Board examination, and with what success?
AAt Karlsruhe, with the mark "Voll Befriedigend."
Q Your second examination?
A The second examination I have not passed yet, because immediately before the examination I was called to the army, drafted into the army, and up to now I did not have an opportunity to take part in the examinations which took place at Stuttgart up to now because they required that one had to be a member of the armed forces for two years, and secondly, had passed the 28th year at the time of the examination.
Q. Do you mean to say by that that your training, as a jurist is not completed yet?
A. As far as the second examination is concerned, it is not completed.
Q. Thank you. You said in the course of your statements, that you had taken notes, You said the same thing in your earlier affidavits. May I now put this question to you, Witness? From what points of view did you make these notes?
A. Yes. After 1942, I had attended several sessions before the Special Court. I had discussed what I had seen and heard with two colleagues in particular; Hochstaetter, I saw every day. We agreed that according to our opinion, what happened before the Special Court was not in order. Therefore, we greed that all things which were not in order should be corrected by us. We wanted to note this these things so we would have a case when these things would have to be accounted for. In 1942, we said that the official records in our opinion certainly would have been destroyed before that time.
Q. Witness, may I be permitted to ask you the age of these gentlemen who had these opinions?
A. At that time they were 23 and 24 years old.
Q. Students or legal clerks?
A. Legal clerks.
Q. In what stage of their education or training-
A. We had served about half of our time as legal clerks.
Q. Had they completed their training? You do not know whether the other gentlemen had completed their training?
A. No.
Q. In other words, if I understand you correct, you do not know whether the other gentlemen had the least experience with legal procedure?
A. I am convinced it was not a question of having special knowledge of criminal procedure. What we were concerned with the manner in which proceedings were carried out before the Special Courts. We were interested in the impression made. We were interested in the sentences which were pronounced in these proceedings.
Q. Witness, you said before, apart from scientific consideration, other considerations were important in your judgment and observation. What were these?
A. Generally, human points of view, first of all.
Q. What points of view, gave you so much cause to criticize?
If I understand you correctly, you say there were reasons for your observing these things more closely.
A. For instance, we could not understand why a boy of 18 years was sentenced to death because he had once had intercourse with a German woman.
Q. Purely chronologically, was that one of your first observations in the Special Court?
A. For me, that was one of the first observations.
Q. At that time, already, did you know that the Defendant Cuhorst had be in the party for a considerable time before, and that, at any rate, he had a certain position in the party?
A That was known to me at the time frem remarks mad by older colleagues. They told me he had been old fighter.
Q Did you know whether he had any office in the party?
A I do not know.
Q Did these factors essentially contribute to the fact that you observed him more closely?
A. No.
Q Did you belong to the party at that time?
A Yes.
Q Since when?
A Since the day when I passed my elimination in 1941.
Q Before that, did you have any contacts with the Party, especially the SA?
A No.
Q You mentioned, witness, that tire Defendant Cuhorst, frequently, went on official trips to conduct sessions of the Special Court. May I conclude from that, that during that time, in Stuttgart, there was somebody else in charge?
A I can only say that during his absence other judges presided over proceedings of the Special Court.
Q Do you knew what the names of these other presiding judges were?
A First of all, Amtgerichtsdirector Bohn who was deputy of Cuhorst. There was Landesgerichtdirector Haegele. There was Oberlandesgerichtsdirector Stube. I do not remember any other presiding judge.
Q Among these was Bohn frequently presiding judge?
A Yes.
Q As frequently as Cuhorst?
A That is hard to judge. I believe in Stuttgart, he had about the same number of cases as Cuhorst.
Q Did it strike you that Bohn had a chamber of his own at the Special Court.
A I did not find anything particularly interesting about his associate judges.
Q Taking into consideration that Bohn and Cuhorst were both with the Senate at the same time, had you also attended sessions of the Penal Chamber?
A I remember only one before the Penal Chamber where Cuhorst was presiding judge and Bohn participated. That was a trial against Communists.
Q If you consider the judges there, was it known to you which judge was in the fight and which was not?
MR. LaFOLETTE: I would like to hear that question again, please.
DR. BRIEGER: Taking into consideration that you have already mentioned the names of several gentlemen who were presiding judges apart from Cuhorst, may I ask you now to consider the other gentlemen who took part in the sessions and tell me if it is known to you in detail who among these were in the party, and who were not?
MR. LaFOLLETTE: I do not believe that is relevant on any ground, nor do I believe it is pertinent to anything I asked on direct examination. As I recall, I asked only one question, and that was the question with reference to the Gauleiter's house, but I do not believe that this is pertinent. I do not have any particular objection to it, but it does not bring out anything.
DR. BRIEGER: I will withdraw the question, voila.
Q. With regard to the remark of Cuhorst which you mentioned, you had said that you had not heard it yourself but another gentlemen told you about it?
A. Yes.
Q. When was that remark made?
A. I cannot say when the remark was made. I can only say when I heard about it. That was in the fall of 1942, I believe.
Q. Yes. That you stated before, Witness. Do you have an idea how long ago that may have been made? Was it a week before, months before or a year before?
A. It may have been several months.
Q. Since you were so vitally interest in these matters, that is the manner in which trials were conducted by Cuhorst, may I assume that you have discussed these matters with the other two gentlemen in detail? Do you still remember what you were told about that?
A. At the time we discussed the manner of conducting trials by Cuhorst, in that connection I was told this concerned the case of a sex criminal.
We did not discuss the individual facts. I was only told that he demanded he be sentenced to death.
Q. Were you told that that remark had actually been made by Cuhorst when the judges went to the bench?
A. He told me that in that case the public had been excluded. The judges before the trial started had been in the room next to the Courtroom. He had entered the judges chambers and asked the presiding judge to be permitted to attend the session since the public was excluded. They had just gone to the Courtroom, the remark was made on the way.
Q. If I understood you correctly, Witness, you just said that that legal clerk was to ask permission to attend the session because the public had been excluded?
A. Yes. Certainly.
Q. Accordingly, when your colleague told you that, didn't you ask him how that occured? Did you not ask him about the details? If the judges were already on the way to the Court room, he would not have had the opportunity to ask them?
A. I had no reason to ask that question because I had no reason to doubt the truth of the statement of my colleague. If he said he heard it, and told me the circumstances, that would be sufficient for me.
Q. You said you had no reason to doubt the witness. Did you know him for a considerable time already, or did you only meet him **** occasionally?
A. I knew him far several months. We met daily personally and privately.
Q. Witness, are you still in contact with that gentleman?
A. Certainly.
Q. May I ask for his address?
A. Certainly. It is Assessor Herbert Hochstaetter, Ministry for education, Stuttgart.
Q. That is sufficient, Witness.
THE PRESIDENT: Dr. Brieger, the time has come for our usual noon recess. We will adjourn therefore until 1:30.
THE MARSHAL: The Tribunal is in recess until 1330 o'clock.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 17 April 1947.)
BY DR. BRIEGER:
Q. May I continue with the cross examination? Witness, to begin with, I would like to make a technical request to you. When I ask you a question, please wait a moment before you reply because otherwise it is too difficult for the translators to follow. Wait until the English translation is finished, please.
Witness, you have made detailed comments about various criminal cases and I would like to revert to some of those cases. To begin with, may I hear you on the point as to what were the facts concerning the case where several things had been stolen from the Gauleiter?
A. Milk and Margitay during the time of several weeks had committed about 20 burglaries in Stuttgart. Some of them were committed at night; some of them they did by climbing up walls; among other things, they committed burglary in the house of the former Gauleiter. Before proceedings started before the special Court, the Stuttgart public discussed the burglary in the villa of the Gauleiter a great deal, and it was emphasized in particular that large quantities, particularly of food stuffs and luxury goods, had been taken.
Q. May I interrupt you? Who discussed it and who pointed out that the food had been stolen?
A. If I understood you correctly, you mean who it was at the trial that brought up the subject?
Q. That is correct.
A. As far as I remember, the subject was broached by the presiding judge, but it is possible that another judge was the first to mention the subject. The only thing I remember for certain is that the presiding judge emphasized that rumors which had been spread among the public about the burglary in the villa of the Gauleiter were vast exaggerations and slander.
Q. During the trial, what were the actual facts of the case concerning the objects that had been stolen from the Gauleiter?
A. The trial was very short and the case was discussed very briefly. The two offenders said nothing but that they had only taken small quantities; for the rest, they did not make any detailed statements because they had committed a considerable number of offenses and they did not remember concerning every individual offense what they had actually taken away.
Q. Was it mentioned whether household utensils or objects of that kind were stolen? If I remember correctly, you said previously that they had stolen bicycles elsewhere.
A. That was not in this case.
Q. Were household objects mentioned in this case? did the presiding judge say that a camera had been taken and some laundry, for instance, shirts?
A. That referred to the Gauleiter case, yes.
Q. If I understood you correctly, witness, at the trial no facts were established as to whether food supplies on a large scale were stolen from the Gauleiter?
A. That was not established at that trial.
Q. Do you believe that in virtue of the facts, it was altogether irrelevant when the presiding judge said it was only a rumor that at the Gauleiter's there were large quantities of food, and that there was no cause to assume that?
A. These remarks--as to their contents--correspond with what was the result of the trial; but what was actually stolen, I could not know because I was only a member of the audience at the trial. Like everybody else who was in the audience at the trial, I had to assume that the testimony of the two defendants was correct, although I did not realize as to why people should be interested in saying that they had stolen things, even where they had actually stolen them but were not charged so. But if these things were not charged to them, why should they say so at the moment? I cannot say for a fact that large quantities of food were at the Gauleiter's house. I can only tell you here the things that were discussed among the public at Stuttgart, and those remarks in part, anyhow, were made by police officials. As to how far that corresponded to the facts, I am unable to judge.
Q. Would you not assume, witness, that a judge is under the obligation at the trial concerning a rumor which has not been substantiated--would he not repel such a rumor if the rumor concerns the Gauleiter as the highest authority in the country?
A. In my view, there was no need for a direct denial. He could have restricted himself to establishing at the trial that the offenders had admitted that they had stolen this object or the other, and I believe that only because the Gauleiter was the person from whom these things had been stolen that it was only because of that the subject was mentioned at such brief proceedings.
Q. In view of the fact that there had been a great interest on your part in Cuhorst and that you had information about him, did not because of that the thought enter your mind that Cuhorst did make the remark because he did not wish to promote the tension which was between him and the Gauleiter any further?
A. Concerning any tension between Cuhorst and the Gauleiter, I know nothing. I assumed that he, in his capacity as the highest judge of the Special Court, wished to correct matters in the way which had resulted from the trial; which purpose he had in mind, I did not know at the time. I assumed at the time that he wished to protect the Gauleiter from such reproaches, the correctness of which I could not prove at the time.
Q. Witness, I wish to be brief about this particular case, but I would like to hear from you, who was the judge who reported on the case?
A. I do not know the reporting judge.
Q. Do you still remember the name of the defense counsel?
A. It was the attorney-at-law, Dr. Ruisinger from Stuttgart.
Q. Concerning, this case, did the investigating judge submit files or other documents to you?
A. I did not receive written documents on that case from any quarter.
Q. Briefly, I would like to come to the Oehlbach case. Who was the defense counsel?
A. The trial was held in Sigmaringen, and I therefore do not know the name of tie defense counsel because I wasn't there.
Q. Who was the judge who prepared the case?
A. Landgerichtsrat and Later Overlandesgerichtsrat Atzendorfer--unless I am wrong.
Q. Do you remember the facts in the case in Sigmaringen?
A. Certainly.
Q. Can you give us an account of them?
A. Oehlbach had contacts with furniture firms, and unless I am wrong he, himself, represented a furniture firm. According to the indictment, he made offers to a number of girls and women to supply furniture to them and took part payments, and then, according to the indictment, did not carry out the orders.
Q. Why was that refuted?
A. I never considered it refuted, but I thought that the defendant Oehlbach, who was sick on his bed in his cell, told me, while I was taking down a record, that on account of his bad health he had fainted several times during the trial and had for quite a while lain in a faint on a stretcher, and had consequently been unable, concerning the statements by the prosecution's witness, to dispute them, and if necessary to make the necessary replies.
Q. Do you know, witness, whether before the trial the prison doctor was heard on the state of health of the defendant?
A. I don't know anything about that because, as I mentioned before, the trial was held at Sigmaringen. I was not present.
Q. If I understood you correctly, witness, you submitted the pardon plea for the defendant?
A. No, it was a plea for the trial to be resumed.
Q. It was that, quite correct. In that case, I may assume that the facts of the interrogation were discussed by you in detail, all the more so as a wrong had been done, according to you.
A. Yes. This case, as far as the defendant was able to report to me after the trial, he did tell me about that, but the essential part of his report was, he explained to me, that he could not tell me his views on such and such a point because at the trial he had not heard what the prosecution's witness had said against him. In any case, he disputed the evidence which the prosecution had mentioned as the testimony of the witness concerned.
Q. Witness, do you know anything, and I assume you do, in your official capacity you dealt with the case in detail; do you know anything about the previous convictions of the defendant?
A. I know that Oehlbach had several previous convictions; as to the number in the penitentiary, I don't know anything about them.
Q. Do you know; do you remember why he had previous convictions?
A. I remember among other things, as far as I know he had been punished for the matchmaker; that he also had other previous convictions I believe.
MR. LaFOLLETTE: I didn't quite understand the answer about the matchmaker; who made the match? I am satisfied; I have no objection.
Q. Do you remember that he had received a long penitentiary sentence?
A. I believe that his punishment to which I referred before, matchmaking, all I remember now it was something in the way of sexual crimes; whether it was a penitentiary sentence and how long before the other cases under discussion had been committed, I don't remember.
Q. Do you remember that prior to the trial he had attempted to commit suicide, but that it was unsuccessful ----correction, that he had made an attempt to escape?
A. Yes, I do know that be bad tried to escape, and also that he had tried to commit suicide by hanging; I also know that after that attempt had failed he started on a hunger strike.
Q. Witness, now that you have made such a detailed statements on these matters, would you all the same say that the suspicion of the presiding judge was altogether wrong to the effect that the witness would once again try to avoid being held at a trial by simulating a faint.
A. As far as I am concerned, it did not interest me as to whether the presiding judge had such suspicions or not because I was of the opinion that if in a case the death penalty is after all within the framework of the probable and possible question as to whether the defendant can be heard or not is of decisive importance; and since the defendant, after all, as the public prosecutor at the trial told me, had to be taken to the court room on a stretcher, in my view it was more likely that the man was not able to stand his trial trial to assume that he only wished to a void standing his trial by simulating a faint.
Q. Would you assume, witness, that it was the first time, so to speak, an institution which was created by Cuhorst, that for the first time a man was tried on a stretcher?
A. The matter of the stretcher, as such, is not decisive, but Cuhorst in another case too, of which I know, it is the Paetzold case, had fainted; he was tried by Cuhorst, so I assumed at the time that Cuhorst was definitely out at this trial which was being held away from Stuttgart to finish the trial the very same day.
Q. Witness, just now you mentioned the Paetzold case. May I ask you to state who was the reporter on the case?
A. I only know the name of the prosecutor, Amtsgerrichtsrat Schnabel.
Q. Was that trial hold in Stuttgart?
A. Yes, it was held in Stuttgart.
Q. What year?
A. The trial was held in 1943.
Q. Witness, thank you; that is sufficient for me for the Oehlbach case. I will now discuss the Pitra case briefly. If I understood you correctly, they were concerned with a young man of eighteen who was charged with having entertained relations with a German woman, being a Polo himself; and who under Cuhorst as a presiding judge was sentenced to death. If I remember correctly, you said that he was not executed.
A. No, according to the list which I made from the notes from the prison, Pitra was afterwards sentenced to eight years in a labor camp, and I do not know whether he was pardoned, or whether another nullity plea and a new trial preceded this.
Q. Witness, do you know anything about Cuhorst's attitude to the pardon?
A. No, I know nothing about that. I never saw his opinion on pardon pleas.
Q. Witness, do you know that on account of tho regulations even in force at that time, in the case of every pardon, the judge who had passed the sentence had to be asked about his views?
A. Yes, I do know that.
Q. But you don't know what opinion Cuhorst gave on the matter?
A. No.
Q. Witness, were you present at the interrogation?
A. I was present at the interrogation of Pitra.
Q. Were you present when the sentence was pronounced?
A. Yes, I was present then too.
Q. As you were so interested in that case, may I ask you to make some detailed comments as to what Cuhorst, as the presiding judge, had to say about the punishment award?
A. After all of these years it is naturally impossible for me concerning tho reasons for the sentences which Cuhorst gave orally to give any details because what was decisive for every member at that time was naturally the verdicts. As to what was said in tho reasons for that Verdict, I know nothing. All I remember is that it was established that the defendant was guilty within tho meaning of the indictment.
Q. Witness, do you remember what happened, that is first of all, to the woman whom you, yourself, said that she had made far-reaching advances to the young Pole; made it appear; made far-reaching advances towards him; that at the last moment she changed her mind and said that the Pole made the assault, and that in fact he raped her?