Q.- As far as you can remember that precisely, please tell me the following: Is it true that when you were presiding judge the decree against Poles was mainly applied only in order to find the answer to the question concerning the execution of the sentence, that is to say, whether it should be penal camp, or prison or penitentiary.
A.- In a number of cases I have already explained that on the basis of the decree against Poles, Polish defendants instead of being sentenced to prison terms or penitentiary terms, were sentenced to simple or aggrevated penal camps; for instance in the Pitra case and certainly also in the Worzinak case. I do not remember any other case at this time.
Q.- Witness, tell me the following: You have stated yourself that if a death sentence was to be expected, that is to say one counted on the possibility of a death sentence, a defense counsel had to be appointed by the court. Was that prevision also applied --when you were presiding and upon your initiative--in the case of foreigners and Poles, or, was that only of benefit for the Germans?
A.- That legal benefit served all defendants for the appointment of defense counsel; and the calling of Dr. Pfeifel in the cases of Skoflack and Josef has already been discussed here; and it will be submitted in documentary form. Before the Special Court at no time did any defendant appear without a defense counsel, that is in a case where a death sentence could possibly be expected. Before the Penal Senate of the District Court of Appeals, according to the legal provisions, all the defendants were represented by appointed defense counsel, that is to say, also the foreign defendants.
Q.- Since you just mentioned Dr. Pfeifel and Dr. Witzigmann who was another defense counsel in this particular case, I ask you first was there any possibility, and that means also before the Special Court, to use referendars, that is jurists who had not yet passed the second state examination as defense counsel appointed by the court; did that possibility exist and was it ever made use of?
A.- That possibility existed under certain conditions and the Special Court, particularly before my term in office and until the beginning of the war, did appoint referendars, because at that time in every single case, even the smallest and least important, appointed defense counsel was mandatory. From the beginning of the war on, we no longer appointed referendars. Many referendars, that is legal clerks, proved to be not quite suitable for the defense of difficult bases. In serious cases, that is cases where a long term penitentiary sentence or the death sentence was to be expected only experienced criminal lawyers were appointed. That explains why in the case of the defense before the Special Court, time and again the names of the same defense counsel appear.
Q.- With the exception of complicated offenses against the national economy, where I could imagine that specialists were appointed as defense counsel, I should like to assume that the selection of appointed defense counsel was made on the basis of the roster, that is to say that one went down the roster. Was any distinction made there as to whether the defendant were German or foreigners, or were the same principles applied in both cases?
A.- The same principles were applied in both cases. Defense counsel were appointed on the basis of the roster of attorneys. However from that list, we excepted those attorneys who were predominantly concerned with civil law and had asked that they should not be appointed for criminal cases.
Q.- Witness, I should therefore like to put the final question to you. Is my assumption correct that the selection of defense counsel in the case of foreigners and also of Poles was made with the same care as in the case of German defendants?
A.- Yes, there was no difference at all.
DR. BRIEGER: Thus, I have concluded my direct examination and in conclusion I would like to say the following: Yesterday I submitted to the witness the indictment in the Untermarchtal case. If the Tribunal attaches any importance whatsoever to having this indictment submitted in evidence, then I welcome that greatly, and I am grateful for it. I hesitated to enter it in may document book, because that indictment comprises more than two hundred pages; and, therefore, I thought that I had to take into consideration the difficulties for the translation department. As a last point, I wish to say the following: The Defense for Schlegelberger, which also submitted an affidavit by the defendant has made it possible for me to take the liberty to submit an affidavit by the defendant Cuhorst, that is an affidavit which was made out and signed by him. It deals with his activity in the Alpenverein, Alpine Organization; those are matters which have been mentioned repeatedly, but are not of such great importance that I want to waste the time of the Tribunal here by mentioning it in the direct examination. With the approval of the Tribunal, that would become Exhibit No. 22, Cuhorst Document No. 33, the affidavit by Hermann Cuhorst of the 11th of July, 1947.
I have arrived at the end of my direct examination.
THE PRESIDENT: I don't understand the necessity for offering an affidavit by this witness. He is here on the witness stand now.
DR. BRIEGER: If the Tribunal prefers then that I put the questions directly to the witness, of course I should like very much to do that. I only intended to save time, Your Honor.
THE PRESIDENT: Proceed. We were not indicating any opinion as to the relevancy of the Alpine Club matter.
DR. BRIEGER: May I briefly explain that the Prosecution in several cases referred to these matters; once it was a matter of the affidavit of Renz; and then, more particularly, it was the question of the Bieger affidavit where these matters are dealt with in great detail, so that we thought it was necessary to refer to these matters also. Otherwise, they are not clarified and the essential background is not supplied. May I, therefore, be permitted to ask the witness to make a brief statement concerning this matter.
Q Witness, will you please give us very briefly the contents of your affidavit, that is to say, what functions you had in the Alpine Club, etc.
THE PRESIDENT: Do you claim anything against this defendant by reason of his connection with an Alpine Club?
MR. LA FOLLETTE: No, Your Honor. There is an exhibit, vary late in the hearing, in which we have offered evidence that this defendant reported a man, a friend to the Gestapo, for allegedly listening to British broadcasts.
We have offered that as evidence of his general approach to the issues here, but they happened to both be members of the Alpine Club; but I don't claim that because he was an officer of the Alpine Club that he is guilty of anything.
THE PRESIDENT: The fact that he is a member of the Alpine Club, or, his activities as such, you make no claim?
MR. LaFollette: I make no claim.
THE PRESIDENT: Then we don't want to hear about it. Of course if you want to explain something about the complaint made by the witness against some other individual, you may do so; but if it has anything to do with the Alpine Club, that is an immaterial, accidental, incidental matter. He are not barring you from showing what he may have done in complaining about some other person who happened to be a member of the Alpine Club; you may do that if you desire, but as for going into the whole question of what his relationship to the Alpine Club was, the Prosecution makes no claim, and we are not interested.
DR. BRIEGER: I am not particularly interested in it either. I just want to comply with the wishes of my client.
THE PRESIDENT: Use your own judgment; use your own judgment.
DR. BRIEGER: The witness Hegele, by the way, is going to discuss these matters.
THE PRESIDENT: Arc there any other Defense Counsel who desire to examine this witness?
DIRECT EXAMINATION BY DR. KUBUSCHQK: (Attorney for the defendant Schlegelberger)
Q One question. Witness, yesterday there was a discussion about the taking over of Jewish property by non-Jews. In this connection you stated that in part that taking over of Jewish properties was carried out in an absolutely correct manner, that is to say, that the true value was paid to the Jews, and that in some cases the true value was not repaid to the Jew. The essential thing in this connection seems to me also in connection with a question put by the Presiding Judge, whether in cases where criminal acts were committed, for instance, where blackmail was applied against a Jew, these matters were prosecuted or not; that was one thing which remained open after your answer, or, at least not clear and I would like you to make a statement in this connection.
A These matters were prosecuted, and I myself experienced a case of that kind. It was the case of an SS leader, who came from the Palatinate, and who in addition to offenses against the national economy, also had committed several dishonest acts in connection with taking over Jewish properties. As far as I can remember that SS leader was sentenced to a penitentiary term of five years; that was in 1939 or 1940; I cannot be quite precise about it.
Q Was there any directive to the effect that such punishable acts committed in connection with Aryanization should not be prosecuted?
AA directive of that nature is not known to me, but I should like to add that I had no insight into the internal directives of the prosecution.
DR. KUBUSCHOK: Thank you.
THE PRESIDENT: Is there any other examination of this witness by other Defense Counsel? It appears that there is not.
You may cross examine.
CROSS EXAMINATION By Mr. LaFollette:
Q Witness, so that I will not intentionally address you incorrectly, would you tell me do you hold a doctor's degree; or, should you be addressed as doctor, or as judge; I don't know.
A No, Mr. Prosecutor. I don't have the doctor's degree.
Q I am going to hand you first a copy of a judgment which was handed down in the Special Court in 1940, I think, involving the case of Julius von Jan; that is only a copy, but I will ask you if you recognize some of the language in it.
A The case is of the 15th of November, 1939 -- not of the year 1940. It is the case of the protestant clergyman Julius von Jan from Oberlenningen Kreis Noerdingen. The case is known to me. What do you want mo to quote from the judgment?
Q. Well, I wanted to ask you - I think there is a paragraph which begins in the translation: "The defendant has made the measures which were taken against the Jews living in the Reich because of the murder of the Legation Counsel von Rath by the Jew Gruenspan the main topic of his sermon." Do you find that in there.
A. I haven't found it yet. What page is that?
Q. I think probably it is on Page 6 of that, if there are six pages. That is what I get from the translation here. It starts a new paragraph after the "Consideration of the Facts."
A. Yes, I found it.
Q. May I read it slowly to you and then if the translation is practically what you find will you answer me if that was your statement in this judgment? I have read you the first sentence.
"Obviously, without any understanding the necessity for drastic methods against the alien Jewish race, he was not satisfied with feeling sorry about possible excesses on the occasion of the 9th November 1938 but with his remarks took stand in inciting in a debasing manner against the Jewish and racial policy of the Fuehrer and of the Third Reich. Not only did he speak from his pulpit for the Jews in the person of Dr. Baehr, whom he called a true servant of the German people, but he also declared it unlawful and contrary to the sound sentiment of the people that the government ordered the Jews in Germany to be taken into protective custody as a counter-measure to the murder committed in Paris; even though the defendant must have been aware that the Third Reich was engaged in the severest fight against world Jewry which looked for any means to hit at the German Reich."
Do you find that that has been translated practically correctly?
A. No, Mr. Prosecutor. At any rate, the German translation didn't keep up with it. I believe, though, that it will suffice if that passage is translated by the Interpreter. In case that sentence Jan is to be submitted as a document, then those matters can be cleared up.
Q. Yes. Well now, let me ask you this: Has it come to you in substance as you find it in the judgment? I was reading from the judgment. Is that substantially correct?
A. Essentially it is correct but not in detail.
Q. Well now, let's go to Point VI which is on Page 7.
THE PRESIDENT: May I ask you first who is the defendant in this case?
MR. LAFOLLETTE: The defendant is Julius von Jan.
THE PRESIDENT: Is he the preacher?
MR. LA FOLLETTE: Yes.
THE PRESIDENT: How is his name spelled, the last part of it?
MR. LA FOLLETTE: Von: V-O-N; then another name: Jan: J-A-N:
BY MR. LA FOLLETTE:
Q. Do you find Point No. VI? It should be on Page 7.
Q. Suppose you read that slowly in German down to the first sentence on the top of Page 8 beginning with Roman Numeral VI. It should begin: "The defendant's statement must be considered as dangerous." Will you begin reading the German there slowly?
A. I read this copy which I have before me, Page 7, Roman Numeral VI. It reads as follows; according to this copy: "The statements of the defendant were statements of dangerous incitement at a time when the German nation is in a severe struggle with its adversaries, in order to fight for its freedom and its basic living rights. It would have been the duty of the defendant to take the stand for peace. Instead of that he made statements from the pulpit which could only be designed to cause confusion and unrest and to deepen existing antagonisms.
"All warnings which he received from private and official parts could not keep him from doing so. All that had to be considered in his disfavor in considering his punishment. It had to be considered particularly aggravating that he showed a lack of understanding during the trial.
He stated that it was not for him to ask what he was permitted to do as a citizen. For him the only guiding principle was what he, according to the word of God (such as he interprets it), had to do."
Q. Were you the presiding at that case, do you remember?
A. In this case, yes, I was the presiding judge, shortly after the outbreak of war, the 15th November 1939.
Q. And the sentence was one year and four months?
A. One year and four months minus four months in detention pending trial.
MR. LA FOLLETTE: Yes. That is all. Thank you.
THE PRESIDENT: Do you propose to offer the document?
MR. LA FOLLETTE: No. I am satisfied, Your Honor.
THE PRESIDENT: I don't quite understand what the preacher said.
MR. LA FOLLETTE: I am sorry. The defendant has just read what he said.
THE PRESIDENT: That is what the judge said.
MR. LA FOLLETTE: He is the judge and he is fixing the determination of what the preacher said, Your Honor.
THE PRESIDENT: And what did the preacher say by reason of which the judge found him guilty and sentenced him to a year and four months, according to the judgment?
MY MR. LA FOLLETTE:
Q. Herr Cuhorst, will you go to Page 3 of the original and read the two excerpts from the sermon which was made by the preacher on the 16th of November, 1938, beginning, "He, Jeremia, opposes the deceitful servants of those who, in national exuberance, proclaim salvation and victory." Do you find that?
A. Mr. Prosecutor, do you want me to read that entire sermon which is here over two pages, that is, the passage of the sermon of the 16 November 1938, held in the church of Oberlenmingen?
Q. Yes, please.
A. The text was Jeremial 22, Verse 29: "Hear the Word of the Lord".
THE PRESIDENT: What I am particularly interested in is what the preacher said about the persecution of Jews or words to that effect.
MR. LA FOLLETTE: That is just what I am asking him to read, Your Honor.
THE PRESIDENT: I thought I recognized something from Jeremial.
MR. LA FOLLETTE: Well, that is what the preacher said and that was determined to be against the mistreatment of Jews, Your Honor.
BY MR. LA FOLLETTE:
Q. Then, if you please, Herr Cuhorst, he then goes on, does he not: "He opposes the deceitful sermons of those who, in national exuberance, proclaim salvation in victory?" Isn't that in your finding there? It is on page 3.
A. "Do not mistreat the foreigners, the orphans or widows. Do not commit violence and od not spill innocent blood. God has sent us such men. Today they are either in concentration camps or they have been rendered harmless. But those who come into the princes' homes and arc still in a position to officiate are speaking lies such as the nationalist dreamers of Jeremiah's time and they can shout salvation and victory, but they cannot preach the word of the Lord.
"The men of the temporary eccesiastical leadership, of whom newspapers reported during the last week, in their new regulations for church services, have clearly expressed the word of the Lord, and in consideration of this respect towards the commandments of the Lord have apoligized to the Lord." Shall I continue?
Q. I wish you would read this. You will find it in there on Page 4: "A crime was committed in Paris-
Q. -- "The murderer will receive his punishment." Please A. "A crime was committed in Paris.
The murderer will receive his just punishment because he transgressed the command of the Lord. We are mourning with our people for the victim of that criminal offense, but who would have thought that that one crime committed at Paris would result here in Germany in so many crimes?" Shall I continue?
Q Just a little further.
A. Then there are theological statements. "Here we have the payment for our breaking with God and Christ for the organized attacks against Christianity. Passions are free of reigns. God's commandments are not respected. The houses of God which were sacred to others were burned down without punishment. The property of the foreigner has been robbed and destroyed. Men who dutifully served our German nation and always did their duty were thrown into concentration camps, only because they were members of a different race."
Q That is enough, I think.
A Now comes the reference to the sound sentiment of the people, Mr. Prosecutor. That I consider very important.
Q All right. I think so too.
A They may not admit the wrongs at this time, but the sound sentiment of the people feels it expressly, even though one does not dare to speak about it."
Q That is all I need. If you want to read any more, you may.
A I do not want to make sermons, Mr. Prosecutor.
THE PRESIDENT: Do you recognize what you have read as having been taken from a judgment which you wrote or which you signed?
THE WITNESS: Mr. President, of course, as for the contents of that copy, I can not identify it, but as far as I remember such events were the subject of the opinion, and it is quite possible that copy is in accordance with the original opinion.
BY MR. LA FOLLETTE:
Q Thank you. Now, the organization book of the Nazi Party, edition of 1943, at Page 299 - I don't have the book here in the Courtroom, but I will send you a copy of what I found in it and ask you whether or not, as a Gauspeaker, you consider that that accurately describes the position and duties of a Gauspeaker.
A Mr. Prosecutor, in this copy only three groups of speakers are listed to which I did not belong; No. 1, the Reichsspeakers of the NSDAP; No. 2, the Reichspeakers for special purpose of the Reich Propaganda Office; No. 3, the Gauspeakers commissioned by the Reich Propaganda Office. Those were Gauspeakers which were exclusively at the disposal of the Reich Propaganda Office. I was Gauspeaker, I was a Gauspeaker who, only within his Gau, was at the disposal of the Gau Executive Office, the Gauleitung, According to this way of numbering it, it would be No. 4. That is not included on that list.
Q I see. So that this list doesn't accurately describe what would be No. 4 as a Gauspeaker, a speaker who spoke within his Gau subject to the direction of the Gauleiter, is that correct?
Q Thank you. Now, you became a Gauredner when? In 1934? A Gauspeaker?
A 1930, Mr. Prosecutor.
Q 1930. In preparation for being a Gauspeaker nay I assume that you read "Mein Kampf" and acquainted yourself with the Party Program?
A I read "Mein Kampf." The Party Program was published in a number of law books; for instance, in the well-known collection of state laws and administrative laws by Professor Sartorius, which every judge had on his desk.
Q Now, the International Military Tribunal found that on the 12th of September, 1919, Adolf Hitler became a member of the Party and that at the first public meeting held in Munich, on the 24th of February, he announced the program. That program which remained unaltered until the Party was dissolved, consisted of 25 points. Do you recall the program, and is that a statement of the facts as you understood it as a Gauspeaker?
A Mr. Prosecutor, of course I never learned that Program by heart. I was only familiar with the basic principles of the policy of the NSDAF.
Whenever I had to refer back to the Party Program, of course, on those occasions I read it because it was easily available for me.
Q In that you are no different than most of us. We usually go back and read them. But may I read five points to you and see whether you remember those things as the things about which you spoke? Point 1: "We demand the unification of all Germans in the Greater Germany on the basis of the right of self-determination of peoples."
A That is right; that is right, yes.
Q Point 2: "We demand equality of rights for the German people in respect to the other nations, abrogation of the peace treaties of Versailles and St. Germaine."
A Yes, that is correct.
Q Point 3: "We demand land and territory for the sustenance of our people and the colonization of our surplus population."
A That is correct; that is certainly correct.
Q "Only a member of the race can be a citizen." This is Point 4. "A member of the race can only be one who is of German blood without a consideration of creed. Consequently, no Jew can be a member of the race."
A That is right. That was frequently quoted.
Q Point 22: "We demand abolition of the mercenary troops and the formation of the national army."
A Yes, I presume that is correct too.
Q And, as far as you recall, those five points were never changed from the time you started to be a Gauspeaker until the end of the war, as far as you know?
A The Party Program remained the same. I cannot remember that any change that was made.
Q Now, you testified that, "Since criminals, and especially criminals in economic classes, usually could evaluate the risk that the offense involved carefully in time of emergency, this risk has to be so high that the offense becomes too dangerous and thus it is not committed.
I was of the opinion that black market dealers, especially, had to be punished severely and I had a similar opinion in regard to the punishment of serious criminals during war time. Excesses in the sentences pronounced did not take place, neither toward higher authorities nor towards lower ones."
And then Dr.Brieger asked you with reference to a statement made in your affidavit - NG-644, Book III, Supplement, Page 49 - with reference to the extermination of criminals and you said, I understood that to mean, "That the population should be, say, cleaned of parasites by long-term prison sentences, security detention or death sentences. I should like to add that removing these criminals does not mean extermination."
Now, during your service, in the courts throughout the war, you adhered to that opinion which you stated and I have read to you. Is that right?
A Mr. Prosecutor, first the transcript did not reproduce correctly what I said. I set forth that I was against exaggerations in both directions in the extent of the sentence. Then I pointed out that by ridding society of criminals, I mean that the population had to be freed of parasites by long-term prison sentences, security detention or death sentence. I stated that quite; generally without taking into account the special circumstances of war time. The way I think about that I have expressed in the judgment in the Staudenmeier case.
Q Yes, and I think that you have said at various times up to the end of the war that so far as you could help to avoid it, there would be no repetition of the collapse of 1918?
A That is a matter of course, Mr. Prosecutor.
Q Your evaluation of your duty to pass sentences, as you have stated, was to make them consistent with the support of the war so that there could be no internal crack-up in Germany; is that correct? Was that your guiding measure and standard?
A It is possible that the guiding principle in some cases was mentioned by the judge who wrote the verdict down and I myself, when the opinion was submitted to me for signature, under the circumstances of that time, saw no cause to delete such passages from the opinion, - that is to say, in order to express it quite clearly, I approved these passages by affixing my signature.
Q You had no doubt, did you, in your own mind, that the war was being fought to carry out the fiver purposes of the Party Program which I have read to you?
A Mr. Prosecutor, I had good reasons for that. At the time when the war broke out, the Party Program no longer played any significant role in consideration of the necessity to save the entire German people. The courts in general, did not have any considerations of a foreign political nature, because they were not in a position to do so.
Q You did go to the Ukraine in '43, didn't you?
Q And when the war broke out in 1939, you firmly believed, did you not, in the Party Program point 3, "We demand land and territory for the sustenance of our people and the colonization of our surplus population"?
A I was convinced that that was necessary for tho German nation, even without the Party Program.
Q Yes; and you were convinced that the war would attain that end, and gain that part of the Party Program, if successful, were you not?
A I did not have that conviction. At any rate, that conviction was not in my mind at the beginning.
Q As Prosecution's Exhibit 568, I wish to have identified Document NG-85A, Will you hand that to the witness, please?
If your Honors please, I am temporarily embarrassed in that I have English but no German translations. Something happened to the German translation. The witness has in his possession, an excerpt from the original newspaper of a speech about which I wish to ask him, and which is this document.
Unless there is objection, I offer the document as Prosecution's Exhibit 568, with the understanding that I will furnish German copies as soon as I can got a mimeograph cut and stencilled.
THE PRESIDENT: You can present the English copy now if you have the original of the document.
MR. LA FOLLETTE: The original document, your Honor, consists of the clipping from a newspaper of a speech which the Defendant made.
I would like to offer it now.
Q Is that a substantial recording of a speech which you made, Judge Cuhorst?
A I have not had an opportunity to identify that document yet, because I do not see the entire page of the newspaper, but what I can say is, that at the end of October, that was the day before the trial before the Party Program against me in connection with the Wolf case, I spoke for the last time at Oetlingen. That is the last speech which I have made altogether.
As for the report I can only scan through it now. Of course, since I was in the habit of speaking without a typed manuscript, I cannot say to what extent the reporter succeeded in reproducing my thoughts correctly. That that meeting took place is beyond any doubt.
Q I find in it always this sentence: 'Always and all over one would have to think that the giving away of a secret would betray the father or brother at the front; just as detestable would be to listen to foreign broadcasts which are only trying to mislead the German people with their poisonous propaganda." Do you find that in there?
A Yes, I find it.
Q You find nothing inconsistent in that with your feeling at the time you made this speech at Oetlingen?
A Mr. Prosecutor, to answer that, I have to have a little more time to go through that article.
- 8l34 It is not easy to read that off-hand in the witness box.
What you have quoted to me just now, must have been essentially in accordance with my thoughts at the time. I do not want to dispute that, whether I made those statements, literally, as they are presented here, that I could no longer tell today.
Q I wish there would be made available to you when you come back here, that excerpt, so that you may read it when you coma back into the court room. I will ask you about it, but I will withhold the formal offer of this exhibit, your Honor, until after the witness has had a chance to road it.
A May I ask you for a copy, Mr. Prosecutor, so that I do not have to take the original with me?
Q I am in the unfortunate position, Herr Cuhorst, that the German copy has boon mislaid, and I do not have one. That is the only text in German that I have, but I will ask the Secretary General to make it available to you as soon as you come bock into the courtroom and before we begin this afternoon. That is the best I can do.
A Yes, I am very glad that you trust me with the original.
Q Now in the Kreutle and App case, which was tried at Ulm, I believe in 1943, or early '44, late '43 or early '44, is that correct?
A May 5, 1943.
Q I find this in the judgment which was signed by you, "Capital punishment had to be inflicted on Kreutle and App in spite of their hitherto clear criminal record. Their greedy actions were calculated to cause the utmost uneasiness and jeopardize seriously the confidence of the German Reichsbahn's reliability.