A I never thought of that and I did not think of it because, as I said before, in this case the death sentence was not mandatory and in my view it meant starting the wrong way around if one passed the death sentence and afterwards asked for a pardon because Cuhorst knew more about pardons that we which amounted to a maximum of ten pardons given out of a hundred death sentences and later on that figure decreased further.
Q Witness, at that time and day do you know anything about the nullity pleas?
A The institution of the nullity plea is known to me.
Q Would you conclude from that institution alone meant that the freedom of the judge was considerably curtailed? As he was limited in any case to any verdict that did not become legal? Would you not assume that such considerations should always play some part when one looked at a sentence or a pardon by a judge?
A Which are the motives of Cuhorst naturally I cannot say anything about that but on the other hand I take the view that if a judge finds the death sentence by that he has expressed his opinion as a judge and if he does not want to pass such a death sentence and perhaps he is not even permitted to pass it because otherwise a nullity plea might be made and because in another instance at a different Court possibly the death sentence would be passed after all -- a death sentence which he did not really wish to bring about -- but in my view these are elements which nobody can judge. On the other hand, the signature of a judge does stand on a verdict and one must therefore assume that that verdict contains the conviction of the judge.
Q Witness, if a judge is of the conviction that according to the facts of the case one can only arrive at one opinion, would you assume in that case that it is proper to risk passing a sentence which appears too low to the higher authority -- to risk the possibility of that sentence being quashed -- to risk that judge pass a sentence of ten years in the penitentiary and then another Court pass the death sentence on the defendant?
Don't you think it would be more likely that the judge should keep control of matters and I, myself, the judge, try and achieve a pardon for that man?
MR. LA FOLLETTE: We do object now, your honor. I think this definitely calls for an argument of the witness.
THE PRESIDENT: Anyway, it doesn't seem to me that a judge should care what happened afterwards. He should exercise his individual judgment and let the next Court do what it pleases about it.
Q. Witness, in conclusion I should like briefly to revert to your personal circumstances. First of all I should like to ask you briefly, it may be that it was mentioned in the morning but neither my colleagues nor I mentioned it. How often did you attend sessions of the Special Court at Stuttgart? About how many times?
Q From 1942 I attended almost every day's proceedings before the Special Court whenever such trials were held at all. This was possible because I was a law clerk. During my training I did not have very much work to do and I was altogether permitted to attend such sessions. On the other hand, for the reasons I have already mentioned I had a particular interest in these proceedings conducted by the Special Court. Naturally, I can no longer say how often I attended sessions of the Special Court, but I can say that I did attend the majority of cases which were tried in Stuttgart at the time as a member of the audience.
Q Was Cuhorst the Presiding Judge and were other judges presiding?
A Yes, that's correct.
Q During what period was that?
A From the beginning of 1942 until May 1944.
Q How far had you proceeded with your training at that time?
A In 1942 I had just finished the so-called small-little court sessions and in 1944, I think I had spent two years and eight months in the preparatory.
Q Do you mean to say that you had made enough progress in your training in penal cases to enable you to judge things from a legal point of view? Answer "yes" or "no."
A I think I can say "yes". Quite definitely, yes.
Q Witness, I would like to follow this up with another question since we have been discussing your training. On what basis of the previous phase of your training is it necessary for you to pass another exam or not?
MR. LAFOLLETTE: If it please Your Honor, now I am going to be just a little bit free with my friend Dr. Brieger. I believe this is the fourth time he has asked the man if he did not have to pass another examination, and I think each time the man will say "yes", so I see no purpose to the question, and I object to it.
THE PRESIDENT: That is the law anyhow, as I understand it.
DR. BRIEGER: Well, I don't like to do anything to put Mr. Lafollette in a bad mood, because I admire him, but I think previously I formulated my question in a somewhat different manner. Previously I asked whether he was still at the preparatory phase, and I had not clarified yet as to whether the witness, was already allowed to practice as a judge, public prosecutor, or attorney at all. I had not gotten quite as far as that before.
I have nearly reached the end of my cross examination, but I have two more brief questions left.
BY DR. BRIEGER:
Q. I am interested in your political career too; in addition to statements of this morning, and without disputing your membership --you mentioned your membership--you mentioned your membership in the SA at the time when you joined the Party--I would now like to ask you this. At what age did you become a soldier?
A. In 1944, when I was 25 years old.
Q. At the age of 25. How did it happen that you were not called up sooner?
A. That is quite simple, because at that time I was entirely unfit as a result of a very serious accident.
Q. You do not mean to say that it was Party support that kept you at home? Did the Party or any of its formations try to keep you at home? I would like you to interpret my question very widely.
A. Never.
Q. Witness, reverting back to this, apart from the fact that you were a member of the Party and of the SA, may I know to what other formations you belonged?
A. For two years, at the age of from 13 to 14½, I was a member of the Jungvolk.
Q. May I ask you in what capacity you worked at the SD?
A. Never.
Q. My question was as to whether, and if so, in what capacity? That is, whether and in what capacity you worked for the SD.
A. I never worked for the SD.
DR. BRIEGER: Thank you.
MR. LAFOLLETTE: We got the answer, but I don't know what it has to do with the case.
THE PRESIDENT: It didn't do any harm, anyhow.
MR. LAFOLLETTE: Not as it came out.
JUDGE BRAND: I should like to ask the witness one question.
BY JUDGE BRAND:
Q. Returning to the Pitra case--I think that is the name of the Pole--do you identify the case I refer to?
A. I didn't get the German translation.
Q. I am referring to the case of the Pole who was charged with improper relations with a German woman.
A. Will you forgive me, but again the translation is not coming through.
Q. I am calling your attention to the case of the Pole Pitra. I understand from your testimony what act he is accused of committing; I merely wanted to ask you if you know what statute he was accused of violating in the performance of the act that you said the evidence indicated he had committed. What law was it that he was charged with violating?
A. As far as I recollect, it was a special provision of the law concerning Poles.
JUDGE BRAND: Thank you.
BY THE PRESIDENT:
Q. Witness, in the course of the examination of other witnesses who have testified concerning Dr. Cuhorst, it has been said that he tried his cases on the basis of the indictment, and you have testified that the indictments were quite voluminous. What is the significance of that fact?
A. That means that, first of all, the indictment had not been so voluminous and that from the manner in which Cuhorst conducted the trial could be held smoothly.
I remember one case when the prosecution had prepared the indictment badly, when further details were contained in the files. At the time the presiding judge, Eschweiler, did criticize the prosecutor during the trial, and the public prosecutor pointed out that these statements were contained in the files.
Q. Who conducted the examination during the trial? That is, who asked the questions of the defendant and who asked the questions of the witnesses? Was it the prosecutor or the judge?
A. No, the questions were put mainly by the presiding judge, as is customary under German law, the associate judges too, the public prosecutor, the defense counsel, and the defendant himself were allowed to put questions to witnesses.
Q. Then the judge sometimes examined the defendant's witnesses, is that true?
A. The judge had to hear the witnesses for the defense first.
Q. I am not asking you whether he had to hear them. But somebody asked the questions; who did that, the defense counsel or the judge?
A. Every witness--it didn't matter whether he was a witness for the prosecution or the defense--first of all he was questioned by the presiding judge.
Q. And that is, perhaps, the reason why the judge wanted the indictments very full, so he could get all the facts without going to the files; is that correct?
A. That is possible.
THE PRESIDENT: That is all.
MR. LAFOLLETTE: I have no re-direct.
I will have another witness. I don't know whether it is time to recess or not. It will take a little time to get him here; perhaps we could recess.
THE PRESIDENT: This witness may be excused.
(Witness excused)
There is additional time of twenty minutes, if you can avail yourself of it, before the usual recess.
MR. LAFOLLETTE: I will only need about five minutes, or two or three minutes, to get the witness up here--I didn't know we would end that soon--and then we Can proceed to the usual recess. Or, if Your Honors desire, we may take a recess now and then go through.
THE PRESIDENT: Perhaps we might as well take the recess, since we are so close to the time.
We will recess for 15 minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
MR. LA FOLLETTE: If Your Honor please, I would like to have the witness Diessem called. The witness will testify in the German language.
DR. JULIUS DIESSEM, a witness, took the stand and testifies as follows:
JUDGE BRAND: Will you raise your right hand and report after me the following oath:
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 BRAND: You may be seated.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q. Will you tell the Tribunal you name and residence, please?
A. Julius Diessem.
Q. And where do you live now, Mr. Diessem?
A. At Stuttgart, Hohenheimstrasse 56.
Q. Will you tell the Tribunal your legal training and back ground and your profession?
A. From 1907 until 1912 I studied law. In 1912 I made the first examination. Then three to four years I was Referendor, legal clerk. That was the usual procedure. Then in the fall of 1916 I passed the second examination, the assessor examination. Then from the fall of 1916 on I worked with the prosecutions in Ravensburg and Stuttgart. Then from 1923 on I was a judge with the jury court and the penal chamber. On 1 February 1925 I settled as an attorney in Stuttgart, and that is my profession since that time.
Q. Consequently you practiced in Stuttgart during all the time that the defendant Cuhorst was president of the Special Court and president of Senate No. 1 of the Oberlandesgericht, is that right?
A. Yes.
Q That was the criminal center?
A Yes Did you defened a young married man by the name of Stiegler in the special Court before the Defendant Cuhorst?
A These proceedings took place at Ulm
Q Was the defendant Cuhorst the presiding judge?
A Yes.
Q Do you recall what year that was, Dr. Diessem?
A I believe in the spring of 1943
Q Under what division of the criminal Code was he charged in the indictment?
A He was charged firstly with exhorbitant prices. He was going beyond the prices provided in the regulations
Q Under what paragraph of that regulations was he charged?
A I believe it is paragraph 5 of the decree against Public Enemies.
Q Tell the Court about the facts generally. What was the extent of his activities?
A Stiegler was a young man who was not even thirty years old I do not know whether he had an occupation. He called himself a businessman, a merchant. In the course of time, he traded all sorts of merchandise, in the end, he also traded washing material, the kind they produced during the war time. Doing so he violated the price regulations. It was alleged before that that he had been prohibited by the Ministry of Economy to trade. He also traded household articles, cooking parts combs and so forth as far as I remember, then he was drafted into the army. That was the garrison at Ulm. As a soldier he continue to do some trading from the barracks. It was a small amount though. He had a wife who helped him, and with whom he was in correspondence as much as I know She lived at Stuttgart. The case was discovered. I do not know who denounced him. Perhaps the police found out. They picked up the case. A charge was brought against him before the special Court. Since the armed forces had transferred him or rather released him to be tried before the Civil Court, the trial took place in the building of the District Court at Ulm and I was his defense counsel.
Q I will ask you whether or not, under the facts of the case, it was not possible to try this man under a provision of the German criminal code which would have permitted imprisonment and a fine?
A That would certainly have been possible. First of all, legally it would have been possible. The prosecutor and the special court in their opinion could have left out the decrees against public enemies. That was a matter of tast, whether they wanted to apply that decree. It was not a law that, as such, specified facts. It was only framework. The offender therefore, in order to be judged as a public enemy had to commit another act which was prohibited by regular laws, whether that act was mentioned in the main laws or in the subsidiary. If therefore, the application of the paragraph against public enemies could avoided, then for instance, he could have been charged with going beyond the price ceiling which would have brought a prison term or a fine or both. If the Court assumed however, that an act was committed in which the decree against enemies should be applied, and I said it was secretly a matter of taste whether they wanted to apply it, the death penalty was not mandatory.
If I remember, on the contrary, the penitentiary was mentioned as a penalty, that is from 1 to 15 years or life, then , as the last thing, the death penalty.
Q During the trial of this defendant at Ulm, I ask you whether or not the defendant Cuhorst before the trial was completed told this man one or more times that he would lose his head?
A Stiegler, according to my opinion made a fresh impress on the court. I also observed that that infuriated the presiding judge I remember very distinctly that he impressed him repeatly saying that he did not seem to, know what was a stake. To me and everybody else, it was quite obvious he meant that the acts for which he supposed to be tried might mean his head.
Q Do you remember whether or not this man had any other convistions? Was there any other charge except this obe you have mentioned?
A I believe I can recall that there was some case of fraud, but I cannot remember details, it was fraud in connection with support.
I only know that that so-called fraud in connection with claiming support, was a minor matter in connection with the act concerning the decree against public enemies.
Q Was this man a big operator? Did he make much money out of it or was his circulation small?
A No. It was "small fry" one would say. He was just an occasional business man.
Q Did you defend Butcher Soell?
A Yes.
Q How old was he?
A The man at the time of the trial was 60 or 61 years old.
Q What were the facts in that case?
A The man was married, and he some connection with another woman by the name of Ziegler who may have been his mistress before. He knew her for quite sometime. They got together and in the county of Gmuend, in Wurtenber, they established an inn and a butcher shop. The driving spirit of that business was Frau Ziegler. She was also younger than he was. She furnished the funds. Soell was a butcher by profession. Soell and Frau Ziegler with him, was charged in the course of time, and I emphasize this was before the summer of 1941, with illegal butchering. They sold some of the meat they had with receiving rations tickets in their place. They sold this meat to better customers, manufacturers in Gmuend. They sold it at what would be called black market prices today.
Q Proceed, doctor. In retrospect this was allegedly the selling of large quantities of cattle that had been butchered illegally. It was supposed to have been 10,000 kilograms. They were arrested by the police. I have stated they had not butchered animals which according to the charge amount to 4000 kilogram weight. They bought these animals and resold them I did not gain the conviction from the trial that the essential quantity was proved to have been illegaly butchered.
I have said already that they, separately, have mentioned that, and both mentioned the same person who bought it from them near Stuttgart. One tried to locate that customer but one could not find him.
Q. How long before the indictment and before the trial had t is alloyed butchering taken place, if you remember?
A. It took place a considerable time before because Soell and Ziegler, at least one year before that, had discontinued that kind of business, both the inn and the butcher shop, and Soell with his wife had moved to a Bavarian lake where he had either bought or built a bungalow, and he lived there in retirement.
Q. What was the condition of Soell's health at the time he was convicted?
A. The condition of Soell's health was devastating. The man already in his imprisonment pending trial was so ill that even the prosecution could not avoid to recommend that he be put in freedom, that is on the basis of a medical certificate. He went to a hospital in Stuttgart as a free man still. Either because he didn't like it there or because the hospital was too overcrowded, he went to his home in Bavaria. By some misunderstanding, the prosecution got the idea that he had fled from the hospital, although he was free after he had been released from the prison and as a free man went to the hospital, and immediately they arrested him again and brought him back to the prison. There he stayed until the trial. It was necessary for the wardens to support him all the way up the staircase because he could not walk by himself. He suffered from diabetes. After the death sentence had been pronounced, the man collapsed and had to be carried out to the prison on a stretcher.
Q. Was he executed?
A. Yes.
Q. Did you defend Eckstein and Winter?
A. Yes.
Q. Did you also, on a plea, reopen the proceedings of that case after the first trial?
A. Yes, a plea for reopening of the trial.
Q. And before what court was that filed at the time?
A. To the Penal Chamber of the Langericht, Stuttgart.
Q. What was the sentence in the first trial?
A. Both were sentenced to death.
Q. Was your plea before the criminal division of the district court pending there when there was a change in the proceedings giving jurisdiction over such pleas?
A. Yes, while tie penal chamber dealt with the question of retrial which they had approved, the legal change in procedure occurred which provided that the penal chambers did not have that competency any more and that the competency about retrial after sentence had been passed by special courts was also gratuitous of Special Courts themselves.
Q. Who tried the case in the special court? Who was the special judge?
A. Cuhorst.
Q. What was the sentence against Eckstein and Winter?
A. Death sentences in both cases.
Q. Were there any other defendants tried under the same indictment at the same time originally?
A. I think there were two or three more. I remember one by the name of Koehler. I did not defend this man; and I believe a man by the name of Reinhardt was also there. I cannot remember the name of the fifth one.
Q. Was there any difference in the sentence against these defendants, if you remember them?
A. Yes. Koehler was not sentenced to death, but he got a comparatively lenient sentence. I believe he was still a juvenile, or hardly above that limit in the sense of the law.
Q. And what sentence did the other two receive, besides Winter and Eckstein, if you remember?
A. I could not say; at any rate, they were prison terms.
Q. Now, this granting of jurisdiction to the special court to try the plea for reopening proceedings, it was actually a decree of the Ministry of Justice and was not for speeding up proceedings in special courts, was it not?
A. I don't know. I assume that it may have been in law, and not simply a decree by the Ministry of Justice-- and I don't know the reasons either. I assume that the reasons may have been that the competent gentlemen, so to say, were not satisfied with the penal chambers and had many bad experiences with penal chambers which were not so fully infected by national socialism as far as the retrials were concerned. And by bad experiences I mean that the penal chambers, in many cases, had a somewhat more lenient judgment and did not pronounce death sentences.
Q. Do you believe that you have information which convinces you that the criminal division of the district court contemplated reopening the trial of that case when the jurisdiction was taken over by the defendant Cuhorst?
A. Yes. After I made my application for a reopening of the trial, the penal chamber, on the basis of my application, revoked the execution of the death sentence, and in principle it granted the reopening of the trial.
They appointed an associate judge and assigned him to investigate the new facts which I had offered in favor of my client.
Q. On that condition of the record, the right to pass upon this plea was taken from the criminal division of the Landgericht and placed back in the special court at Stuttgart, is that right?
A. I didn't quite understand the question.
Q. After this examining judge had been appointed to investigate, and after the sentence had been suspended, it was then that the case was sent back to the special court at Stuttgart?
A. Yes. I can only say that in fact it was returned to the special court. Who decided it, that I could not tell. I assume that the penal chamber got in touch with the special court or the special court with the penal clamber, and that a legal change had been the cause for their getting in touch with each other. On the basis of that conference, both courts, that is to say the special court on one hand and the penal chamber on the other, became convinced that according to this law -- or rather legal change -- now a case which had already been pending with the penal chamber had to be returned to the special court for the final decision.
Q. Was there anything in the language of that special provision which referred to pending cases at the time it became effective?
A I do not know the actual text of that provision.
Q Do you recall whether there was a question of law as to whether or not the criminal division of the Landgericht, whether it was made mandatory that it return this case to the Special Court?
A That I don't know, but I assumed that it was mandatory; it may be that they asked for that authority, but I could not say that for sure.
BY JUDGE BRAND:
Q Was it the first sentence in the Special Court?
A Yes.
BY MR.LA FOLLETTE:
Q The first sentence was in the Special Court under Cuhorst, was it not?
A Yes.
Q But at that time the plea to reopen proceedings had to be filed or could be filed; is that right?
A Yes, and I was glad that that possibility still existed at the time.
Q Now then, what was the disposition made of your plea when the case went back to the Special Court?
A The plea for reopening was rejected, as not based upon sufficient reason.
Q Now, will you please tell the Court something about the facts in that case; how old was Winter?
A Winter was twenty or twenty-one.
Q I will ask you whether or not he was a gipsy.
A He was a gipsy.
Q And Eckstein was about sixty, I believe? Or forty-five; which was it?
A Eckstein was considerably older and he was not a gipsy.
Q What had they done, these people; how much had they taken?
A Well, I couldn't really speak about the total value, but I know the details. There was a group of gipsies who were at a time south of the Danube, in the upper parts of Wuerttemberg with their trailer.
Eckstein had joined these people and in various instances, may be mostly two or three together, they stole from farm houses, mostly in a similar manner, that is they did not break in; it must be a question of cellars; it was mostly a question of cellars which had been built outside of the main buildings, and there was just one trapdoor to get into them; and they took foodstuffs, loaves of bread, butter, eggs; they also took poultry; and then another complex of facts was that there and there they stole bicycles.
Q Now, did you talk to your defendant Winter in that case?
A Yes.
Q In the first trial did he assume responsibility for acts which ho later denied; do you know anything about that?
A I believe, yes.
Q Was the leader of this group, other than Eckstein related to Winter, this young man; do you know?
A Related?
Q Was he related; I am asking if he was kins-folk -
A No, no, no. Eckstein just joined up with them.
Q Was Winter related to one of the older men?
A With the others, the older ones yes; Winter was certainly a gipsy, and Koehler and Reinhard were; and there was quite a number of gipsies who were in the thing but they were not found and, therefore, they could not be brought before the court.
Q Do you remember what previous convictions or sentences Winter had received?
A Winter, as much as I can remember, had a very modest record; twice I think for thieving; once a few days of prison; the second time a very small fine of about ten marks.
Q What were they charged with; what division of the code were they charged under?
AAlso on the basis of the law against public enemies in connect ion with the thefts.
Q I ask you if in your opinion; I will withdraw that. Was it absolutely necessary under the law to charge Winter with a crime under a law against public enemies under the facts of this case?
A Never; that goes on the simple consideration that the Reich Supreme Court had explained the type of public enemy and our courts followed that, and Winter, according to his view and his small previous convictions never could be a public enemy in that sense of the law.
Q Now, did you defend a defendant named Schmidt?
A Yes.
Q To go quickly over this, this was an older man who took cigarettes, packages of cigarettes, from the army postal service?
A Yes. At the time of the trial he was sixty-two years old, if I remember correctly; at any rate he was more than sixty; he was sort of mentally limited, and that could also be seen from the fact that in the army postal service they couldn't find another job for him but to carry mail packages, mail bags, from one story to the next.
Q What was he charged with?
A He was charged with theft, with abuse of his official job, and that in connection with the decree against public enemies.
Q Was it necessary to charge this man under the statute against public enemies?
A In my opinion, not.
Q Had he any previous convictions and, if any, how long before this?
A I do not remember any previous convictions, and I believe there weren't any.
Q Did you plead this man's case before the defendant Cuhorst?
A Yes.
Q The death sentence was given, was it not?
A Yes.
Q Was it executed?
A Yes.