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.
Q I will ask you whether or not in your plea you pointed out that it was not necessary to apply the law against public enemies under the facts in this case? That is, to require the death sentence.
A Yes. I have tried since this case was a minor case and in consideration of the person of the defendant, I have tried with all the means at my disposal to get away from the death sentence. That was the reason why I exposed myself as a defense counsel in that case. It was only the question for him that he noticed on a damaged letter that there was a package of cigarettes containing ten cigarettes in it. He was a passionate smoker and gave into the temptation to take that pack of ten cigarettes, and I emphasize it was a matter of letters, and to smoke them. How many packages there were altogether couldn't be established. The police put to him whether it could have been fifty, and finally he said well, yes, that might be possible. That was how the sentence was based on fifty packs, at forty pfennigs, in consideration of the war time tobacco tax, altogether a value of thirty marks. I tried then to consider the individual acts separately so that by doing so I could get away from having it considered as a continuation of offenses, and thereby necessarily get away from having it characterized as theft. I have said each individual act, in consideration of the small quantity, ten cigarettes, and the small value of sixty pfennigs is a so-called mundraub in the sense of paragraph 373; that is an offense for which the highest measure of punishment would be six weeks of arrest, or a fine of one hundred and fifty marks; in consideration of that fact there were also letters with money. I did not overlook that under existing laws of the time these different acts of mundraub, small thefts, petty food thefts did not have to be chained to the decree against public enemies. My attempts, however, in setting up this scheme was to under all circumstances save the defendants from the death penalty, which, however, was in vain.
Q Was it as a result of your defense in that case that the defendant Cuhorst reported you to the president of the lawyers association of Stuttgart?
A Yes. I know or rather have to conclude that from all which the president of the chamber of lawyers sent to me, Glueck sent to me, shortly thereafter; and in that letter Glueck refers to the fact that the presiding judge of the Special Court approached him on account of the manner in which I conducted the defense and expressed that a defense like mine had to have undermining effects.
Q Were you, in fact, disciplined by Glueck?
A I was not officially disciplined, but in order to spare me an official procedure before the chamber of lawyers, I was prohibited to conduct in the future any defense in the Special Courts and penal chambers. I was told if I would not abide by that request, then the chamber of lawyers disciplinary measures would have to be taken against me, and if I remember correctly, it was also pointed out that the matter would at any rate be sent to the next higher chamber of lawyers at Berlin, and that they with the greatest of measures, of certain they would decide to eliminate me as a lawyer.
Q How long did this request for compliance, that you not appear before the Special Court, and both senates, was it not of the criminal chamber?
A Yes, both.
Q How long did that prevail? When was it lifted?
A It lasted about a quarter of a year; then, two colleagues of mine, whom I knew well and who were members of the chamber of lawyers, very carefully approached Glueck in my favor, and it was changed again. Not officially, but after certain time I again started to practice, however not with the approval of Glueck, but with the approval of the prosecutor.
Q I want to ask you just one more question about the Schmidt case. Was the basic offense under article 370.5?
A. .5.
Q It was not under article 373?
A No, I based my plea on 370.5.
Q This was purely a matter of interpretation Dr. Diessem. I wanted to get it straightened out. I believe that is all.
MR. LA FOLLETTE: I want to point out, so I will not have to jump up and down two or three times, and I did not ask your Honors to refer to it because you should not, but there was in the document book a purported document, NG 463, which I did not introduce for the reason that objection was made that it was merely a letter and not an affidavit.
There is just one more question:
Q Do you remember the Engert case -- the pilfering case after the end of or following an air raid?
A Yes.
Q I will ask you also whether you remember the case of a foreign defendant who was from one of the countries west of the original boundries of the German Reich? Do you remember that?
A Yes, yes.
Q Do you remember what sentence he got?
A The death sentence for pilfering.
Q And, was it executed as far as you recall?
A That I do not know.
Q That was the sentence given?
A Yes.
Q Will you tell the Court briefly on what you base your opinion that this was a man from the west and some of the facts from that case, as you remember it?
A I believe I recall it was a Dutchman, the case was the following: At Stuttgart there was an air raid alarm. We had a very large air raid shelter. It was called the Wagenburg tunnel, and it was a tunnel under construction. On the occasion of that alarm that man, that foreigner, whose name I cannot recall, for his own protection, wont into that air raid shelter. There by coincidence he came to stand or sit next to an older woman who lived nearby. The woman had, apparently considering her age, and physical condition, had a great deal of baggage with her. After the alarm was over and the people left the air raid shelter, this foreigner offered to the woman, that he would try -- that he would help her to carry her stuff home. He accompanied her home. Her house was still standing, and because it had not been an air attack -- just an air alarm, but if I remember correctly it might have been slightly damaged from previous attacks, perhaps the windows and doors and so-on.
Cut of gratitude the woman, it was late at night, took that man who had helped her into her apartment, and in order to show her gratitude -- I do not know exactly whether she wanted to cock something for him or give him something to eat or something else -- at any rate the foreigner was for a certain time alone in the living room of that woman's house, I believe, because she had stepped into the kitchen and he made use of that short time while he was alone to open a drawer of the wardrobe and steal something out of that drawer, possibly a watch of little value -- I do not remember that any more -- some little thing he stole. Then he went away again and by some coincidence, which I cannot remember, it was found out, and he was discovered as having been the culprit.
Q What was he charged with?
AAs a pilfer.
Q That was a pilfer after an air raid; is that correct?
A No, it was not an air raid but an air raid alarm.
Q But, that is what he was charged with?
A He was charged as a pilfer. The law only knows the simple expression of pilfering. The interpretation was a matter for the court, and it was left to the court as to what they considered pilfering.
Q In your opinion, was this act in taking whatever was taken under these circumstances an act which was covered under the pilfering statute or was it a simple larceny?
A Never on the basis of the pilfering act, in my opinion.
Q This man was a foreigner?
A I believe, if my recollection is correct, that he was a foreigner.
MR. LA FOLLETTE: That is all.
CROSS-EXAMINATION BY DR. MANDRY (for defendant Cuhorst): Your Honors, may I begin my cross examination?
Q Witness, in the first case you spoke about the case Stiegler; who was the presiding judge?
A I do not remember that any more.
Q. And who was the prosecutor?
A. I don't remember that.
Q. Could you tell us whether the record of either the sentence of the indictment is in existence? Whether you have seen it?
A. I don't have the files about the case either any more. I don't have the indictment any more. I looked it up and as far as the sentence, we never received that any way.
Q. In the meantime in Stuttgart at the Ministry of Justice or at the prosecution or here in Nurnberg was that sentence ever shown to you?
A. No, I should have liked to read it.
Q. Colleague, you have said you remember with certainty that the Presiding Judge Cuhorst frequently pointed out to the defendant what punishment he had to expect and that it seemed that he did not understand what a serious penalty was possible?
THE PRESIDENT: One moment. The translator does not have sufficient time between the questions and the answers. A short pause there would very much aid the translation. The translator is having some difficulty because of the speed of the examination. If we had just a short pause between the question and the answer it would very much aid the translation.
Q. Does not the Code of Legal Procedure provide that in the indictment already the case has to be characterized according to its legal points and the defendant has to be explained in the indictment already what possible penalties there exist?
A. That I don't know. In the provisions for legal procedure there was nothing mentioned concerning the fact that the Presiding Judge has to tell the defendant what he has to expect.
Q. Does not Paragraph 265 of the Code of Criminal Procedure provide that any change of the legal point of view has to be brought to the attention of the defendant?
A That was not a change of the legal point of view at all because if that would have been the question it could only have been a change in favor of the defendant but the question was like that, how one can make it clear to a defendant what he has to expect.
Q. In the second case Soell, which you discussed, is the sentence still in existence?
A. I don't know. I believe I had a copy. I still have a copy of the indictment but about these unimportant details I could not say anything.
Q. Could you name the Associate Judge?
A. No.
Q. The Prosecutor?
A. With certainty I couldn't tell you his name. I only know that black-butchering was the special assignment of Prosecutor Kleinknecht and therefore I assume that he was the prosecutor in that case.
Q. In the case Soell wasn't that the one where the defendant on account of his devastated state of health was released from imprisonment pending trial?
A. Yes.
Q. Then owing to a misunderstanding on the part of the prosecution it was brought about that he was arrested again? Could you tell us anything as to whether the defendant Cuhorst had any connection with that arrest?
A. About that I could not say anything positively but I do not believe that he had anything to do with it because, of course, at that time it was still in the hands of the prosecutor.
Q. You have explained it had been a matter of taste whether an indictment was charged or even a sentence was put on the basis of the decree against public enemies. Is that correct? Did you say that?
A. Yes, I have said that but from my point of view it was not a matter of taste. It was not question at all.
Q. Could you tell us something about the relation between the obligation to those charges and the extent provided for the trial? The question should clarify how to what extent the Court was caused by the law to establish the connection with the decree against public enemies.
A. In my opinion the Court was -- in no case was the Court freer in his decision than in cases concerning public enemies.-the application of the law against public enemies because the facts were evidence and remained the same and it was only a question of how these facts were charged and whether an act that is otherwise subject to penalty should also be considered under the decree against public enemies.
Q. My colleague, you have told us that a change of legal provisions was in the competency to decide upon pleas for re-opening of trials possibly was caused by experiences made with Penal Chambers in their dealing with these applications. Did I understand you correctly?
A. Yes.
Q. By these wide experiences do you mean that it was on account of the appoints of judges -- personalities of the judges -- or that the quality of their decisions was insufficient, legally insufficient, or do you mean by wide experiences that considering the new directives of the Reich Ministry of Justice the decisions of the Penal Chambers had been too lenient and in dealing with the private Court of the Special Courts they did not take that as an example?
A. The latter is correct. They were not as weak toward their superiors and not so blood-thirsty as they would have liked to have seen them.
Q. You have made these statements concerning the cases Eckstein, Winter, Koehler and Reinhard. Could you give the Tribunal the name of the Associate Judge -- the recording Judge at the Special Court?
A. No, I cannot.
Q. Could you give us the name of the judge who opened the trial?
A. Yes, that is the President Ministerialrat Mueller who is in the Government of the French Zone at Tuebingen.
Q. Do you happen to know whether Ministerialrat Mueller could have been associate Judge in the case itself? That is, at the Special Court or is that impossible?
A. In what case?
Q. In the case Eckstein-Winter, where there was a plea to reopen the trial.
A. I want you to understand me clearly. Mueller was the Special Judge at the Penal Senate No. 3 and not with the Special Court.