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.
The protection of the German community, as well as the demand for justice required, in view of the circumstances, the death penalty."
That again is consistent with your belief that this war had to be fought to a successful conclusion; that is correct, is it not?
A Mr. Prosecutor, it is very difficult to bring these considerations concerning war policy and foreign policy into connection with the sentence and opinion concerning the App and Kreutle case. At any rate, the point of view assumed by the Special Court in that opinion was that at times of war, and in order to be able at all to survive through the war, an institution such as the German Reichsbahn had to remain entirely intact. I presume that the Magistrate who wrote down the opinion expressed such thoughts.
Q The Prosecution offers NG-710, the judgment in the case of Kreutle and App, as Prosecution's Exhibit 569, and I will now distribute it.
THE PRESIDENT:NG 710 is received in evidence as Prosecution's Exhibit 569.
We will recess until one-thirty this afternoon.
(In recess until one-thirty o'clock)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 3 September 1947)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: There appears to have been a slight disagreement between timepieces. You may wait a moment.
MR. LA FOLLETTE: Yes, Your Honor. Defendant's counsel has just come. I will wait a moment.
DR. BRIEGER: May it please the Court, due to urgent business, I have been delayed for a few moments.
THE COURT: I am sorry, the translation was not coming through.
DR. BRIEGER: Would you please forgive me? Urgent business delayed me for a few minutes. I had to issue instructions to the witnesses to report to the Marshal.
THE PRESIDENT: You are not late, so don't worry about it.
HERMANN CUHORST (Resumed) CROSS-EXAMINATION ( Continued) BY MR. LA FOLLETTE:
Q. Herr Cuhorst, you have examined this newspaper article during recess? Do you find that it substantially states the substance of what you said there, as you recall it?
A. This newspaper clipping contains a number of ideas about which I am certain I did talk. If one considers that all newspaper reports are imperfect, one nay say that this report by a rural correspondent, generally sneaking, is a reproduction of what I said.
MR. LA FOLLETTE: With that limitation on its probative value, which I accept it is universal, -- I offer NG-854 as Prosecution Exhibit 568.
THE PRESIDENT: The exhibit is received as a memorandum of the witness' testimony.
BY MR. LA FOLLETTE:
Q. Now, referring to Exhibit 569-that is NG-710, the Kreutle-App judgment--I notice, and I recall by reading it, that both Kreutle and App were sentenced to death as dangerous habitual criminals.
That is the lav of the 4th of September, 1941, Reichsgesetzblatt, Part I, page 549. I believe.
Q. The first article reads:
"The dangerous habitual criminal", and the, in parentheses, the dangerous habitual criminal is defined by parentheses as the person defines, in Article 20-A of the Penal Code.
Do you have article 20-A of the Criminal Code with you in the witness stand or available to you?
A. No, I don't have the penal code with me.
DR. BRIEGER: I can make it available for him.
MR. LA FOLLETE: We will get one in just a minute.
BY MR. LA FOLLETTE:
Q. Section 20-A of the Penal Code, as translated for me, consists of four subparagraphs, apparently. The first one says:
"If an offender, who has been twice finally convicted before, renders himself liable to a prison penalty by intentionally committing a new punishable act, and if the evaluation of all acts considered together shews that he is a dangerous habitual criminal." It then described the sentences. I shan't read the sentences because, obviously, this law of the 4th of September 1941 makes them subject to the death penalty, if necessitated for the protection of the national economy.
THE PRESIDENT: "Community".
BY MR. LA FOLLETE:
Q. (Continuing) "National Community", yes, or by a desire for just expiation.
Is what which I have read in English substantially what is in the Penal Cone that you have before you in the first section, "l"?
A. No, Mr. Prosecutor.
A. In article 28 fines are discussed
Q. No, I am talking about 20-A.
Q. Oh, 20-A, oh yes, that is what I meant to say. Article 20-A, Section 2--and that is the section with which we are concerned here-says that if a person has committed at least three deliberate offenses-
Q. Yes, that is "2", but what I read from "l" is substantially correct also?
A. Yes, that is substantially correct.
Q. And then "2".--will you read "2", then, slowly?
A. "If a person has committed a minimum of three intentional offenses, and if the total evaluation of the offenses shows him to be a dangerous habitual criminal, the Court, in the case of every offense to be dealt with, may increase the severity of the penalty even if the other prerequisites mentioned under Section I do not exist."
Q. Yes. So that even though a man has not been sent to prison, if he has committed three punishable acts he nay come within the definition of article 20-A, is that right?
Q. Now, in the case of Kreutel and App, how did you arrive at the conclusion that they came within the provisions of article 1 of the law of 4 September 1941?
A. The Court arrived at the conclusion that the prerequisites for Article 20-A, Section 2, of the Reich Penal Code, did exist, no matter whether the individual acts of theft had been committed one after the other as a continious offense or whether each of them, legally speaking, constituted an independent punishable act. That legal view was in accordance with the prevailing jurisdiction of the Reich Supreme Court.
The offenses committed by Kreutle are listed in the German text on page 4 and following pages. You can see there that he had committed more than three independent punishable acts.
The first was committed in the autumn of 1940, and these punishable acts continued until January 1943. I estimate that he committed a total of 20 such punishable offenses.
Q. You had to make that finding from the facts in order to bring him within the provisions of article 1 of the law of 4 September 1941?
A. I don't quite understand that question. I believe I have already replied to the effect that the Court was of the opinion that the two defendants, Kreutle and App, could be sentenced under the prerequisites of Article 20-A, Section 2 of the Reich Penal Code, because both of them had committed a number of individual offenses, and because, from the legal point of view, it did not matter whether, in the judgment, 20 individual thefts, or one theft consisting of 20 individual offenses, were considered to be the facts of the case, and that was in accordance with the prevailing jurisdiction of the Reich Supreme Court.
Q. Yes. You were outvoted in the original consideration that case by your two associate judges, were you not, and finally prevailed that the death sentence should be given?
A. The associate judges, whose names cannot be seen in the judgement, were Oberlandesgerichtsrat Dr. Stuber and Dr. Azensdorfer. Before the trial opened the case was discussed at length, because it was the first more important case of a railway robbery in which six defendants had been indicted. Naturally, it was also discussed whether the main defendants had committed an offense which merited the death sentence or not.
Q. Yes, but before the sentence was finally agreed upon, do you not remember that the Associate Stuber and the Associate Azensdorfer expressed the opinion that a death sentence should not be given in the cases of either Kreutle or App? Is that not correct?
A. I cannot testify about that, but I can gather this much from the judgment, that the majority of the judges, when we voted, were in favor of the punishment which was decided upon in the judgement. I cannot imagine that things might have been different.
Q I beg your pardon. Finish.
A In particular, I cannot imagine that at the voting another sentence might have been decided upon than the sentence which is pronounced in the judgment itself. In such a case the two judges who voted differently certainly would have signed the judgment, and they would have had every reason to do so, that is to say, not sign, for in that case the judgment would not have been a judgment, but it would have been a unilateral act contrary to law. Such a thing i never knew to have happened.
Q Yes, but on the question of whether a death sentence was demanded, there was a pardon and both of those death sentences were reduced to penitentiary terms, more they not?
Q That all. Thank you. On this question of a bilateral act that had no legal.value, did you know a Herr Wiskott who sat with you, while you were in the Ukraine, in a case involving a German in Shitomir in the Ukraine?
A I don't know a Herr Wiskott.
Q Would you say that he was wrong if he states under oath that you and a man named Funk, together with him, sat as judges in the Ukraine, without appointment and sentenced a German to death for undermining military morale?
A I remenber this incident. For purposes of information for period of about a fortnight I had been assigned to the President of the District Court, Dr. Funk, who at that time was in Rowno. While I was assigned to him, the President of the District Court, in a perfectly legal manner, asked me to take part as associate judge, without waiting the opinion in penal proceedings against a German. As to what was the name of the judge who wrote the opinion of that case, that I cannot remember. The presiding judge at that trial was Dr. Funk, the President of the District Court. I no longer remember any details of that case.
Q Isn't it correct to say that you went to the Ukraine to see whether or not you wanted to take a judgeship, and that you were not a legally appointed judge when you sat on this case?
A That is not correct. This is how it was: I tried to get away from the Special Court at Stuttgart, and when the Reichministry of Justice was looking for a judge who would take over the Justice Department in the Ukraine, I applied, and for purposes of information I was assigned to work with the Justice Commissar in the Ukraine. When that period during which I was to obtain information had elapsed, I returned, because I did not think I would like that now office. As to the length of my stay in the Ukraine, I, as a judge with all the rights of such was assigned to the President of the District Court, Dr. Funk, and as such I could fulfil all functions of a judge which the Justice Commissar in the Ukraine asked me to fulfil. As for absence of competency in connection with my work as associate judge in criminal proceedings, that is out of the question.
MR. LA FOLLETTE: The Prosecution offers as Prosecution's Exh. 570 the Document NG 893. Do you want to see it? The original is up there. I wish you would distribute these in English and bring me the English back.
BY MR. LA FOLLETTE:
Q On March 18, 1943, in this document, NG 893, I read; "To the Senate President Hermann Cuhorst, Stuttgart: In agreement with the Reich Minister of Justice, I hereby assign you to the Reichskommissar for the Ukraine in Rowno for a period of approximately two weeks, effective 15 March 1943, in an advisory capacity with the Main Department for Legal Matters. You are requested to report to the Reichskommissar for the Ukraine in Rowno to receive further instructions. Your salary will continue for the time being to be paid by the office from which you are now receiving it."
Is that the document, the letter which, in your opinion, gave you the authority to act as a judge in the Ukraine?
A. I have not yet looked through the whole of this document, but from this instruction I gather that it probably is included in my personnel file.
Therefore, I gather that in agreement with the Reichminister of Justice as from 15 March 1943 far a period of approximately two weeks I was assigned to the Reichkommissar for the Ukraine at Rowno for purposes of information with the Department for Legal Matters. That is all I can gather from this document, but the decisive point in this document is that it was the Main Department for Legal Matters to which I was assigned for work, and such work the Commissar for legal matters, President of the District Court, Dr. Funk, considered included my work as associate judge at a criminal trial. And that as the general custom, also, elsewhere in the justice administration.
Q Did you try any cases against Ukrainians while you were out there under this authority?
A I only took part in this one case, and as far as I know, that trial took place in Shitomir. That can also be seen from a private letter from Dr. Funk, the President of the District Court, in which he mentions photographs which were taken on a trip to Shitomir and Kiew. I never dealt with any cases against Ukrainians. For that my stay in the Ukraine was much too brief.
Q In the case Wasmer, who was a Catholic priest sentenced by you in 1940 for two offenses against Article II, paragraph 1 and 2 of the Decree against Malicious Attacks, he received three years and six months. In discussing the award of punishment you stated: "In the case of the leaflets, the defendant Wasmer has carried out his act with exessive obstinacy, for he would not be dissuaded from it being carried out although he had been urgently warned by the incidents at the vicarage of Siegmaringen and again when Dean Schach, as his superior, had advised him against the further pursuit of the project."
What were the incidents at the vicarage of Siegmaringen?
A.- Mr. Prosecutor, you have the judgment in your hands. A few weeks ago I had the opportunity to look at it briefly. In effect, that was a double case. It was the case of Wasmer and the case of Blattmann and other persons. Wasmer, I believe, came from Siegmaringen village, unless I am mistaken. No, no, he came from Binsen, Siegmaringen District and his superior, Franz Schach, at the first trial had been indicted for an offense against the Malicious Acts Law. The defendant Wasmer was sentenced be a total term of three years and six months in prison. The defendant Schach was sentenced to a prison term of eight months. Wasmer, after the treaty between Germany and Russia had been concluded in 1939, from Hitler's book "Mein Kampf" and, I believe, from other publications as well, had compiled a pamphlet agitating against that treaty. He had a few hundred copies produced of that pamphlet. Some of those pamphlets he sent to people he knew and also to people who were unknown to him. Hot only his father confessor had warned him against producing such pamphlets, but his superiors, too, and a number of clergymen who were among his acquaintances in Siegmaringen. All the same, in suite of the fact that he had been warned urgently, he continued his work, and as far as I know, Clergyman Blattmann of Todtnau, unless I am mistaken, was used by him for the production of further pamphlets.
MR. LA FOLLETTE: The Prosecution offers Prosecution Exhibit NG-909, which is the verdict against Paul Wasmer and also the sentence against Stephen Blattmann as Prosecution's Exh. 571.
THE PRESIDENT: Did you offer Exhibit 570? You haven't offered it, have you?
MR. LA FOLLETTE: What is 570?
THE PRESIDENT: 893. I don't think you have offered it.
MR. LA FOLLETTE: I mean to offer it, if Your Honor please, NG-983.
THE PRESIDENT: No. 893.
MR. LA FOLLETTE: 893? I think it is 983, Your Honor. I am sorry -I should have -- It is 983, as Prosecution Exh. 570.