DR. GRUBE: Your Honors, up to now I neither received Supplement Book IV in German or in English and it is difficult for me, therefore, to refer to page numbers if I present them singly. I think it will be possible for me to present them if in every case I give the number of the document.
The first document which I wish to offer from this book is Document 87. It is an article from Deutsche Justiz, Dr. von Verdross, about "The Partisan". I offer this document as Exhibit 256.
THE PRESIDENT: It may be received.
DR. GRUBE: Document 297 which appears on the following page, that document I will skip. I do not intend to introduce it here.
THE PRESIDENT: That is 297?
DR. GRUBE: 297 is the Document which I do not intend to introduce since the various points with which this affidavit deals have already been covered by other affidavits by the examination of the defendant Lautz and affidavits.
The next document I offer is Document 298 on page 22 of my document book. I offer it as Exhibit 297.
THE PRESIDENT: It will be Exhibit 257, won't it?
DR. GRUBE: I beg your pardon -- 257; I believe I put the wrong figure down on that piece of paper.
The next document, 299, I am skipping again. That brings me to Document 300 on pages 33 and 34. This is an affidavit by sister Wiesner from the monastery Welz. I offer this document as Exhibit 258.
THE PRESIDENT: That is Document 300?
DR. GRUBE: That is Document 300.
THE PRESIDENT: 258.
DR. GRUBE: The last document from this volume is document 301. This is an affidavit by Rudolf Stallinger. The document has been certified by the Voecklabruck City Office. Municipal Office, and it also bears the stamp of that municipal office.
MR. WOOLEYHAN: May it please the Court, I object to this document as being improperly certified under the rules for statements in lieu of oath.
DR. KOESSL: Your Honor, I believe the oath is correct, according to the rules of Ordnance 7. It was certified at the Mayor's office and then may I point out that that is a very small place and there is no Notary and, therefore, the extraordinary provision of Ordinance 7 is applied there and, therefore, it was permissible for the affidavit to be certified at the mayor's office.
MR. WOOLEYHAN: Your Honors, neither the title nor the signature of any buergermeister appears on the exhibit.
DR. GRUBE: That stamp is there, the stamp of the parish, and the seal is there, too.
THE PRESIDENT: Exhibit 258 is not in proper form at this time to be received.
DR. GRUBE: I want to reserve the right to myself to present this document later in the proscribed form.
THE PRESIDENT: You may do so. We will reserve Exhibit No. 259 for this document.
DR. GRUBE: Thank you.
THE PRESIDENT: Defendant Cuhorst may take the witness stand. (Hermann Cuhorst, a witness, took the stand and testified as follows:)
THE PRESIDENT: Hold up your right hand and repeat 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 BLAIR: Was the entire oath repeated by the witness?
THE PRESIDENT: Yes.
DR. BRIEGER (Counsel for defendant Cuhorst): Your Honors, may I begin the examination of my client Herr Cuhorst?
So as not to keep the Tribunal unnecessarily, I shall do without asking him questions concerning the professional career of my client and so as to expedite matters I refer to the affidavit presented by the prosecution, NG-644. Document Book III, Supplement page 49, Exhibit 475, and therefore I am immediately plunging into Medias Res.
HERMANN CUHORST DIRECT EXAMINATION BY DR. BRIEGER:
Q. In the charts concerning the organization which has been presented by the prosecution the Senate President of the District Courts of Appeal were not entered. What is your position?
A. The President of the Senate at the District Courts of Appeal had the advantage of a Ministerial Counsellor. Their nominal salary was somewhere between 9,500 and 12,000 Reichsmarks but there was a bonus, a Ministerial bonus, on that.
The next rank was held by the President of the District Courts, that is to say, the President of the bigger District Courts. The next higher rank -- is that of the General Public Prosecutors.
Court No. III, Case No. III.
Q. How many Senate Presidents were there in Stuttgart?
A. At the District Courts of Appeals in Stuttgart, there were six Senate Presidents.
Q. How many Senate Presidents were there at all District Courts of Appeal in the Reich together, referring to the whole Reich?
A. In the Reich there were 181 posts for Senate Presidents in the District Courts of Appeal.
Q. Do you happen to know by comparison how many there were with the Reich Supreme Court and, later on, with the Peoples' Courts?
A. At the Reich Supreme Court I estimate there must have been about 18 and with the Peoples Court 6, but those Senate Presidents hold a different rank.
Q. Witness, were you a member of the SS?
A. No, I wasn't.
Q. From when to when were you a member of the FSS -that is to say, a sponsoring member?
A. I was a sponsoring member of the SS from approximately 1934 until the beginning of 1939.
Q. What was your monthly contribution?
A. One Reichsmark.
Q. Did you at any time become a member of the SS or did you become a candidate for membership? Please, in your answer refer to the membership book which I am handing to you.
A. By being a sponsoring member of the SS I neither became a member of the SS nor did I become a candidate member for the SS. In the membership book, of which I have a photostat before me, it says expressly -- and I quote:
"By being accepted as a sponsoring member of the SS the applicant does not become a member of the active SS nor does he become a member of the NSDAP, the Nazi Party."
DR. BIREGER: Later I shall hand to the Tribunal my document No. 76 as Exhibit No. 1, For the sake of simplicity I will at the end of my examination present all my documents together to the Tribunal.
Q. As Gaustellenleiter of the Nazi Party, were you in charge of an office? Did you belong to the Amtstraeger, to the functionaries of the Gau leadership?
A. I did not have an office nor was I authorized to sign nor did I have any subordinates.
Q. For how long had you been a Gauspeaker?
A. Since the 1st of January 1933.
Q. How many Gauspeakers were there in Wuerttemberg?
A. My guess is that there must have been at least 60.
Q. Did I understand you correctly? Did you say 60?
A. Yes, I said 60, but there may have been quite a few more than that. I didn't know all of them.
Q. Do you mean to say by that there was not very much contact between the various Gauspeakers?
A. No, the Gauspeakers were distributed all over the country.
Q. At what intervals did they use to make their speeches -- before and after 1933, that is?
A. during the election campaigns in 1932 and 1933 I spoke at small meetings fairly frequently. Up until 1938 I spoke at general political meetings about 15 or 20 times a year. From 1959 onward I only spoke very rarely. Maybe I made 10 speeches a year. In 1942 and 1943 I made even fewer speeches and in October 1943 for a reason which will be discussed later, the Party cold-shouldered me.
Q. Witness, you say that just now during the war years you made fewer and fewer speeches.
Was that due to the fact that you were kept more and more busy by your work as a Judge?
A. That is one reason. The other reason is that the political activity of the Nazi Party became limited. In particular, meetings became restricted.
Q. That is sufficient for me on that point.
What ranks were there with the Gau?
A. The highest rank in a Nazi Gau was the Gauleiter; the second rank was that of the Deputy Gauleiter; the third rank was that of a Gauhauptamtsleiter; the fourth rank was that of a Gauamtsleiter; the fifth rank was that of a Gauhauptstellenleiter, the Gau Main Department Leader; and the sixth rank was that of the Gaustellenleiter, the Gau Department Leader.
Q. Witness, what official function was yours?
A. I had the rank of a Gaustellenleiter, Gau Department Leader.
Q. May I ask you whether that was the lowest rank in the Gau?
A. If you omit the so-called Gau assistant, Gaumitarbeiter, then my rank was the lowest rank.
DR. BRIEGER: With reference to these problems, I shall present to the Tribunal Cuhorst Document No. 32 as Exhibit 2, and Cuhorst Document 63 as Exhibit 3.
Q. Would you please tell us why at the end of 1937 you again became a criminal Judge? I am referring to the personal file in Exhibit 406, Document Book VIII-A, NG-583. You may go into detail here. I think the Tribunal will agree to your doing so.
A. In 1937 I was Presiding Judge of the Fifth Civil Senate at the District Court of Appeals in Stuttgart. From the 16th of August until the 11th of September 1937 I was on leave.
I resumed my office on 13 September 1937. I resumed work on that date. When I returned to work the personal referent before the courthouse in Stuttgart got hold of me, stooped me, and told me that the President of the District Court of Appeals asked me urgently to take over the Special Court and he had been asking for me while I had been away on leave there had been an argument between the Reich Ministry of Justice and the person who was then the Presiding Judge of the Special Court at Stuttgart, District Court Director Flaxland. Flaxland, at the request of the Ministry had to be replaced by a new man. I then contacted Flaxland and afterwards discussed the matter with the President of the District Court of Appeals. After that conversation a meeting of the Praesidium of the District Court at Stuttgart was called and at that meeting, on the 21st of September 1937, I was appointed Presiding Judge of the Special Court.
Court No. III, Case No. III.
The notation of this appointment is included in the documents presented by the prosecution.
At the same time, effective 1 October 1937, I was appointed President of the First Penal Senate at the District Court of Appeal in Stuttgart.
Q. Unfortunately, for the moment I have to interrupt my questions. My questions concerning the rank were somewhat detailed, only to exclude all translation errors. Now my attention has been drawn to the fact that there has been an accident with the translation into English. The post of the Gauamtsleiter, the Gau Office Leader, and the post of the Gaustellenleiter have been translated in the same way. May I point out to you that that cannot be correct?
I now continue:
Did you yourself try to get to the Special Court?
A. No. The Fifth Civil Senate, in the circumstances prevailing then, was altogether to my liking. I had not heard anything of the Internal events at the Special Court in Stuttgart which led to the resignation of Flaxland, as I was away on leave in Caryhthia and in the mountains.
Q. Did the Party contact you about assuming that office?
A. No.
Q. Before the 15th of September, 1937, did anybody make contact with you in connection with that subject?
A. Nobody. The Personnel Referent talked with me after my return from leave, before I had entered the courthouse at all.
Q. In 1937, when you took over the Special Court, was there another change in the judges at the Special Court?
A. No.
Q. What caused you to take over the Special Court?
Did you have any financial advantages?
A. It was the urgent request of my superior, the President of the District Court of Appeal, Dr. Kuestner, which led me to resume that office. In particular, he told me that in the course of the disputes with Freisler and Ministerial Director Crohne at the Reich Ministry of Justice, either Freisler or Crohne had told him that if he, the President of the District Court of Appeal at Stuttgart, would not find a suitable judge for the Special Court, he would send Prussia a judge, they would manage it.
Concerning the advantages, I should like to say that by assuming the position of presiding judge at two courts I had neither financial not other advantages, but, in accordance with my nature, I had to expect difficulties with the Reich Ministry of Justice. That is what I knew from the beginning.
Q. Witness, please tell us what happened in the summer of 1944 which caused you to finish your work as a judge?
A. May I have a look at the personnel file?
(Document submitted to witness)
A. (Continuing): The personnel files which have been presented by the prosecution-
Q. Do you happen to know the exhibit number? Is it noted down there?
A. Exhibit 406, NG-627, Volume IX-A, page number unknown. It is only from these files that I can see the reasons for which my work as a judge came to an end. As the documents have already been presented, I do not need to read them out. However, I would ask you to allow me to evaluate them in brief.
On page 13 of the German book there appears a note headed, "Ministerial Director Letz; Trip to Berlin." That note points out that a certain "MD-4" has expressed himself exceedingly unfavorably about my work as presiding judge at the Special Court in Stuttgart.
That man, "MD-4", was the Ministerial Director and Chief of Department IV at the Reich Ministry of Justice, Vollmer.
The rest of the contents of this document show that my career could be considered as finished, and that the Personnel Referent, in order to get rid of me at the Special Court, was supposed to suggest to the Minister that I was to be transferred to the District Court at Heilbronn. The District Court at Heilbronn, on the Neckar, is the most unpopular district court in the area, and already my deceased father had refused to become the president of that court.
Ministerial Director Letz thereupon went to Berlin to discuss the matter. The result of his conversation with Minister Thierack appears on page 14 of the personnel files. I was to be replaced, and I was to be placed at the disposal of the Armed Forces, as, evidently, I was able to do war service.
On the 1st of September, 1944, the president of the District Court of Appeal at Stuttgart was informed that in the course of the total war effort I was to be replaced; I was to leave my office as President of the Special Court in Stuttgart and was to be placed at the disposal of the Armed Forces.
All further details can be seen from the document, which I saw for the first time here in this courtroom. The reasons for the complaint made by Department IV are obvious, and will also be seen from the other documents.
Q. Witness, if I am correctly informed, the President of the District Court of Appeal in Stuttgart, your Chief President, as we term it, on the 12th of September, 1944, told you in person that the Reich Ministry of Justice had placed you at the disposal of the Armed Forces.
May I ask you to give us an account of that conversation?
A. That conversation took place exactly seven years after I had assumed that office. This second conversation took place on 13 September 1944, and it took place in the street, outside the courthouse in Stuttgart, which was on fire. The building was almost completely burned out during that night. The Chief President, Dr. Kuestner, took me aside and told me that he had to tell me something very unpleasant. That, in view of the circumstances, seemed somewhat peculiar to me. He then told me that only the previous day, probably at the last letter from the Ministry, quite unexpectedly, he had received the information that I was to go to the Armed Forces. He asked me whether I knew what was the matter. I told him that I did not know what was the matter. Then he said to me, "You must have good friends in Berlin." My answer was, "I have known that for a long time. I am glad that I am getting rid of the Special Court in a decent way."
Q. If your Chief President used that expression "good friends in Berlin", I suppose I understand you correctly when I assume that you mean to say that he used that phrase ironically?
A. Yes, naturally he was using that term ironically, and he was referring to men who were not mentioned in the letter from the Ministry of Justice. However, I should like to add that the Chief President at that time knew as little about those events as I did, such as we can now see them from the files.
Q In this connection it seems important to me to ask, what was your military status in the summer of 1944?
A Since September of 1943, I was out of service as a reserve officer with the army; that is to say, I was no longer obliged to do military service and the armed forces would never again have called me up for service. That is evident from an entry in my military pass, which I hold in my possession. The Ministry knew nothing about that.
Q In connection with the events which you have described, do you mean to say by that that you went to the Armed Forces at that initiative of the Reich Ministry of Justice?
A Naturally it could only have been the Reich Ministry of Justice, Dr. Thierack, who had had the idea to remove me from my office as a judge by pushing me out and sending me to the Armed Forces. As for the total was effort, such removal from my office as a judge was not necessary for that total effort. The Armed Forces themselves were highly embarrassed as to how they were to employ me. I was only a lieutenant, and of course I was over age.
Q If I am properly informed, in the course of the year 1940 you had once before been called up for service with the armed forces?
A In March of 1940 I was called up, and I had already left my office. Without my knowledge, and against my will, the President of the District Court of Appeal, at the last moment before I left to join the Army, had placed me on the list of indispensible staff. According to the previsions in force, I had to resume my office as a judge.
Q Did you go to the Armed forces immediately after that conversation, or was it later? If I understood you correctly, you said immediately afterwards.
A No, no Doctor. I joined the Armed Forces on the 30th of November 1944, that can be seen from my military pay book, and I have that in the pocket of my uniform coat.
It was like this:
The President of the District Court of Appeal delayed my callup because, since the courthouse had been destroyed in an air raid, in order to restore the files, I was indispensible for putting the files in order again. Approximately at the end of October there was a telephone query from the Ministry of Justice to the Chief President asking whether I had not left yet. That query from the Ministry was apparently so violent that my Chief President no longer dared to delay my call-up any further. I myself was only interested in joining the Armed Forces as quickly as possible.
Q Witness, I am now going over to an entirely different group of questions. I now want to ask you questions concerning the organization of courts. My first question is this. What geographical area was covered by the area of the District Court of Appeal in Stuttgart?
A The District Court of Appeal of Stuttgart, and thus also the Special Court of Stuttgart, covered the Laender Wuerttemberg and Hohenzollern. That latter, however, was part of Prussia. The population of the area amounted to three million, or exactly 2.97 million. That was according to the latest census.
Q Was the area of the Penal Senat identical with the area of the Special Court?
A The two Penal Senats--that is to say, Senat I and Senat II-were competent in cases of high treason and treason in the District Court of Appeal area of Stuttgart, Karlsruhe, Kaiserlautern, and some courts in the area of toher district courts of appeal. The population of that area amounted to somewhere between seven and eight million.
I repeat, I myself was the presiding judge of the First Penal Senat, and Dr. Kiefer was the presiding judge of the Second Penal Senat. He had come to us at Stuttgart from the District Court of Appeals at Karlsruhe.
Q What were the competencies of the Penal Senat and the Special Court? What were their competencies under the Judicature Act?
A I should like to answer you second question first. Both courts--that is to say, the Penal Senate and the Special Court--were purely Kollegial courts, Kollegial Gerichte.
That is to say until 1940 the Penal Senat had five judges, and three judges worked at the Special Court. The competency of the Penal Senats in general included high treason and treason, appeals concerning decisions made by district courts and local courts. Those senats further dealt with cases of extradition, that is to say, extradition of criminals in virtue of the existing international treaties, to foreign countries. From 1943, as we know, the cases of underlining of military morale were also dealt with by the Special Courts, but the gentlemen from the People's Court have already discussed that matter in detail. The competency of the Special Courts changed. That has been discussed here in the main. In the political sphere they dealt mainly with offenses against the Malicious Acts Law, radio offenses, and some more unimportant offenses. In the non-political sphere, in my time, we dealt with all capital crimes at the Special Court, that is to say, murder, masnlaughter, arson, crimes against the Explosive Act, economic offenses, and other crimes, were also largely under the competency of the Special Courts dealt with habitual criminals, violent criminals, public enemies, as, for example, criminals who had exploited the blackout, looters, and people who had committed robberies on railways.
Q At what court did you hold your main function, and at what court did you work in your secondary function?
AAs Senat President I worked for the District Court of Appeal, and that was my main office. There I was the presiding judge of the First Senat at the District Court of Appeal. My secondary office was that of a member of the District Court and, as such, presiding judge of the Special Court.
As I pointed out at the beginning, I was appointed by the Presidium of the District Court, that is to say, by the Committee of Senior Judges of the District Court who were still functioning at that time. The members of the Presidium were appointed under the Judicature Act.
In order to avoid all misunderstanding, I should like to say that the Presidium of the District Court, soon afterwards, abandoned its functions and the presiding judges and members of the Special Court, after that, were all appointed by the President of the District Court of Appeal.
Q Witness, I would ask you to speak a little more slowly. I see that it is difficult for the interpreter to follow you.
After 1937, did both courts still have the same competency?
AAs I have already indicated, the competency of the Penal Senate at the district Court of Appeal as from January 1943 also included cases of undermining military morale. The competency of the Special Court was always changing. The strain on the Special Court got worse, accordingly, and became unbearable. The of the Special Court shifted towards dealing with cases of general criminality. The political cases in the years '42-'43, according to their extent, amounted to at the utmost 20% of all the cases dealt with.
Q What was the amount of work with which the two courts dealt? On the basis of those files can you give us same statistic details? Do you need any more documents?
A Concerning the cases which have been submitted by the Prosecution and which will be submitted, of all those documents I have gathered about 100 file numbers. For the years '42-'43 and the time from the first of January until the first of October 1944 I can establish that the following number of cases have been dealt with, and I can base myself on statistical certainty. The number of cases dealt with by the Penal Senate in 1942 amounted to dealing with 100 defendants.
THE PRESIDENT: You mean your Penal Senate No, 1, or do you mean both?
THE WITNESS: I am referring to the First Penal Senate, Your Honor. The Second Penal Senate also dealt with 100 cases. I simply haved the figures which I found. There th First Penal Senate dealt with 100 defendants. In '43, 120, and in the nine months of 1944, with 150 defendants. I should like to say that during the last three months of 1944 on account of the many cases which were transferred to us by the People's Court the figure rose considerably. I no longer dealt with that. And now I am coming to the number of cases which were dealt with by the Special Court. In 1942 I established the figure 933 defendants;
In the year 1943, 700; and in the nine months of 1944 there were 460. That's makes a total, that is to say, District Court of Appeal and Special Court for the year 1942,1, 030 defendants; in the year 1943, 820, and in the nine months of 1944, 6l0. I estimate from those three years and from my general knowledge of the work we had to do that the two courts during the time from the first of July, 1937, until the first of October, 1944, tried about 5,600 defendants. As I conducted the trails of the District Court of Appeals almost exclusively alone without asking the other presiding judges to conduct any trial, and as at the Special Court I tried nearly half of all cases myself, under my presidency during the seven years about 3,000 defendants were tried, and under the presidency of the various deputies approximately 2,600 defendants were tried. It was in accordance with the usage of German courts that the deputy presidents and the most senior of the associate judges frequently acted as presiding judges; the deputy presidents for the very reason that they were all high judges and the associate judges for the reasons that they had to be given the opportunity before their promotion to get practice in acting as presiding judges.
BY DR. BRIEGER:
Q Witness, the witness Doebig in the session before this Tribunal on 9 April 1947--1 shall later refer to the passages in the transcript-asserted that it seamed peculiar to a German judge that a German court should have been bound by the decision of the Supreme Reich Court. Will you please comment on that statement?
A During the time I was training as Referendar in 1923 my superior, who was training me, told me that according to theory, Referendar, you need not adhere like a slave to the de cisions of the Supreme Reich Court.
In practice, however, it is different. The egg must not be more clever than the hen. I should like to add, the authority of the Supreme Reich Court has for generations been such that no expert can say that the opinion of the Supreme Reich Court were applied far beyond the mere individual case. That, I believe, for example, the presiding judge of the Sixth Penal Senat of the Reich Penal Court, Senate President Doebig, I believe wanted to say who decided about many cases which had been tried by a Special Court.
Q Did you as a judge have anything to do with legislation or administration of justice?
A No.
Q Did you as a judge have anything to do with prosecution?
A No, as the judge cannot be a prosecutor.
Q If I understood you correctly, Witness, You had nothing to do with instituting penal proceedings?
A No. That was the task for the Prosecution.
Q Did you have anything to do with the execution of punishment?
A No. That, too, was a matter for the Administration of Justice.
Q What spheres of general criminality were dealt with at the Special Court? You have already said something about that.
AAs I have already stated, the Special Court had to deal with almost all fields of criminality. Already in 1937 the jury courts and the penal chambers, only in exceptional cases tried any grave offenses. Murder already in 1937 was in principle dealt with by the Special Courts. For the rest, the Special Court was a specialized court to deal with profiteers and black market operators, and therefore the judges who worked there were the best criminologists.
However, that is true only for the area of the District Court of Appeal at Stuttgart. I cannot say anything about the other Special Courts.
Q Did. the Penal Senate also deal with special cases in the second instance?
A No.
Q Why already before 1937 was it the Court of Assizes which tried many serious offenses, even before 1937?
A We had Courts of Assizes until 1939, but in Stuttgart already in 1937 crimes where it was possible that the death sentence might be pronounced were, without exception, tried by the Special Court. May I say here that as early as 1938 I tried quite a number of murder cases at the Special Court.
Q Witness, before I start on the next question, before you answer it please give the translator a chance to finish the question before you answer. From 1937 to 1944 did other courts than the Special Court in Stuttgart deal with capital crimes?
A No. I should like to say, more precisely, that from 1937 to 1944, death sentences in the area of Stuttgart, apart from the Penal Senate, were never passed by the penal chambers or other Courts, but only by the Special Court. The opinion voiced by the Witness Diessem who said that the Penal Chambers were not quite so much out for blood and were not quite so tame vis-a-vis higher authorities, that is erroneous. For as long as I can remember conditions as they were in Stuttgart as far back as my childhood, no penal chamber ever passed the death sentence. Naturally, the defense counsel know that, too.
THE PRESIDENT: I don't get that answer. I merely didn't understand you. Do you mean to say that the penal chamber, the First Penal Chamber, while you were a judge presiding on that chamber, never pronounced a death sentence?
THE WITNESS: Your Honor , I was speaking of the penal chambers and the Special Court. The penal chambers were the criminal senates of the District Courts.
THE PRESIDENT: I understood that, but you didn't mean to say that the penal chamber of which you were the presiding judge never pronounced a death sentence?
THE WITNESS: Your Honor, I was never the presiding judge of a penal chamber. I was the presiding judge of the Special Court.
THE PRESIDENT: The First Penal Senate is what I meant to say.
THE WITNESS: The Penal Senate is the Penal Court of the District Court of Appeal--the penal division of the District Court of Appeal. The peacetime organization was this --at the District Court of Appeal there are the penal senates, and at the District Court there are the penal chambers, or , for serious offenses, the Court of Assizes.