One might ask why I told the defense counsel that he should register a complaint. I did it because here I still could impose the necessary reserve of a judge upon myself, and the defense counsel achieved the same and even a more far-reaching effect, because if I refused the release, the penal chamber now had automatically to decide about the complaint against the arrest. Thus if you put the question on the basis which regulations I now submitted the files to the Prosecution, so this happened in consideration of Article 33 of the German Code of Legal Procedure, in connection with , I believe Article 306 of the German Code of Legal Procedure.
Q. Do you have the regulations?
A. Oh, yes, if you could give them to me for a moment, please. Thank you very much. It is article 306 Paragraph 2 of the Code of Legal Procedure. It says: "If the court or the presiding judge whose decision is contested considers--" I may interpose that this was my warrant for arrest--"if they consider the complaint as being justified, they have to remedy the situation." Thus in my referring the matter to the prosecution I expressed, that I would sustain the complaint myself so that it would not be necessary to refer the matter to the district court. The necessity of informing the prosecution about this and of hearing the prosecution's opinion first, results from Article 33 of the Code of Legal Procedure. According to this regulation the judge must in all decisions which are made outside of a trial, listen to prosecution in advance in writing or orally. This regulation I considered when first of all I forwarded the complaint to the prosecution in order to find out its opinion. Thank you very much.
Q. Now, witness, can you remember how this forwarding order was worded?
A. This forwarding order Was supplementing an existing stamp; there was a stamp at the office of investigating judge which took into consideration a number of possibilities, which then, if parts were correctly crossed out, said: to the prosecutor for his opinion -- I added in handwriting: "I intend to remedy the complaint, "as it is expressed in article 306.
Q. When the penal files Katzenberger in this way got out of your hands, did you have anything further to do officially with this case later on?
A. No. That was the thing that was so surprising about it.
Q. You mean to say thus, that the filing of the indictment by the prosecution was for you in a certain sense surprising?
A. Yes, because it was inconsistent.
Q. Do you know how this inconsistency, as you termed it, was caused, and to whom the files were now forwarded?
A. To me as investigating judge surprisingly the news came that the indictment had been filed before the Special Court; this news I have to receive so that I know that I now am no longer competent for the further continuance of the arrest as investigating judge.
Q. Witness, did you hear that the indictment was filed with the penal chamber, or did you find out only that the complaint was put immediately before the Special Court?
A. Whether I know that for certain at the time, I don't know for sure, because I was in any case, first of all, under the effect of the shock that an indictment was filed altogether.
Q. Witness, during the entire time when you had to deal with the matters as investigating judge, did Rothaug make an appearance during this entire time? --- In this case, of course?
A. While I was dealing in an official capacity with the Katzenberger case, as far as I know, Rothaug didn't enter into it.
Q. Now, you still opened up another question, that the woman Seiler was eliminated as a defense witness. I would now like to ask you first whether you found out anything about Rothaug's behavior when he found out that the woman Seiler had been taken under oath?
A. In order that the rest will be understandable, I want to say first in advance that in the interim, I, myself, had been detailed to the Special Court, and that the taking under oath of Seiler did not please Rothaug. He even wanted first to make a reproach to me because of that; however, I only had to point out that here there was an application by the prosecution which was binding for me according to Article 66, paragraph 3, which I have already mentioned. Mr. Markl then had to listen to the reproaches.
DR. KOESSL: Thank you. I have no further questions.
THE PRESIDENT: Any re-direct examination of the witness Groben?
MR. WOOLEYHAN: No, Your Honor.
BY THE PRESIDENT: There is one question I would like to ask the witness.
Q. You stated that Rothaug was displeased that charges were filed against the Seiler girl. Did ho give you any reason why that would displease him? May be I have stated that incorrectly -- that he was displeased because she was put under examination under oath.
A. Unpleasant was the taking under oath of the witness Seiler for Rothaug for the reason that naturally in his steps he took against Katzenberger, she put the greatest difficulties in his way; because one has to consider that Katzenberger was sentenced, even though the witness Seiler, under oath, had denied having had any kind of sexual relationship with Katzenberger. If the witness had not been under oath, then Rothaug, from the point of view of the trial procedure would have had the advantage that he would not have had to deal with this very weighty fact that the witness made her statement under oath, and he would not have been confronted with the necessity to bring the Seiler case of perjury in connection with the Katzenberger case of a violation of the so-called blood protection law. And -
THE PRESIDENT: You have answered the question. It is time for recess, but could we know now whether any other witness will be called?
MR. WOOLEYHAN: Right after the recess. Can this witness be excused?
THE PRESIDENT: This witness may be excused. We will recess now for fifteen minutes. (A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. ERNST ESCHER, a witness, took the stand and testified as follows:
BT JUDGE BLAIR:
Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Qmnscient, that will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath)
You may be seated.
EXAMINATION BY DR. KOESSL: (Attorney for Defendant Rothaug) May it please the Tribunal, the witness Escher deposited an affidavit which is to be found in Document Book III-I, in the German on page 48, Document NG-697, Exhibit 223.
THE PRESIDENT: Proceed.
Q. Witness, please tell us your first name, and your last name, and your occupation.
A. Dr. Ernst Escher; lawyer in Fuerth in Bavaria.
Q. Witness, you have deposited an affidavit which concerns Rothaug, and largely refers to the Kleinlein - Schaller case.
A. Yes.
Q You expressed that you had misgivings about Rothaug's attitude in proceedings?
A Yes.
Q When you wrote your affidavit did you know that the prosecutor general on 13 January 1943, that is a whole week before the letter which Rothaug wrote to the Chief Prosecutor, which you criticized, had given the following instructions: The decision as to whether it is absolutely necessary to ask for the heavy sentence to be passed on the 20 year old defendant will have to be left to the tribunal, but in my view, it has to be seriously considered whether for the co--defendant Schaller, the death sentence should be demanded. In this letter there are still further directives.
A I have just heard for the first time of this letter. When I deposited my affidavit, I did not know about the existence of that letter.
Q Witness, would you have spoken of defeating the law, if, when you wrote your affidavit, you had known of the directive by the General Prosecutor?
A It seems to me that this question is difficult to answer; for it is difficult to say what one would have done if a different situation had existed, but at any rate, I believe I am bound to say that the letter from the presiding judge, Rothaug, whose routine task, it was at that time, to schedule a date, and to leave the decision to the tribunal consisting of three judges - that this letter did not correspond to the ordinary custom nor did it correspond to the code of procedure.
Q Witness, I should like to make that the subject of questions to an expert; and, furthermore, I shall submit the appropriate commentaries on this matter. So, that concerning the affidavit, I would like to restrict myself to this statement. I only wish to put one more question to you: In your recollection, did you demand reopening of a trial in cases that had been heard under Rothaug, as a presiding judge?
A I did not do that.
DR. KOESSL: I have no further questions to ask the witness. Thank you. BY DR. SCHILF (For the defendant Klemm): May it please the Court, my cross examination refers to another affidavit by the witness. This is Exhibit 188, NG-677, Document Book 3-G, page 1. That is the first affidavit in the Document Book 3-G.
May it please the Court, we wish to give an opportunity to the members of the Prosecution to get the document book; therefore, Mr. Schubert will put his questions first.
BY DR. SCHUBERT: May it please the Court, I am concerned with the same document as the one on which my colleague, Dr. Koessl, has just cross-examined the witness, NG-679, Exhibit 233, in Document Book 3-I.
Q Dr. Escher, you mentioned two cases regarding which I would like to ask you two brief questions. The Fluhrer case and the Sponsel case. Do you remember that Fluhrer was indicted for a sexual offense which he committed with five juveniles; is that correct?
AAt the moment I can not say whether it concerns five juveniles, but I have the indictment in my files here, and, I believe, that I shall be able to answer your question immediately. The indictment of 25 January 1944, does, in fact, mention five cases where Fluhrer was accused of an - and, I should like to add, he was also convicted during the trial by his own confession, of having entertained homosexual relationship with five juveniles.
Q Is it correct -
A The answer -
Q Just a moment.
AAll right, please forgive me, I thought you were repeating your question.
Q Is it correct that Fluhrer had a previous conviction and had had a penitentiary sentence for previous homosexual offenses?
A I believe that one previous conviction was entered in the penal registry, according to which Fluhrer had been sentenced to two years in the penitentiary - two years and six months.
Q In your affidavit you said that in the indictment the expression, I will, quote literally, "As a dangerous habitual criminal," was added afterwards. Have you any reason and do you know at all, can you make a guess who made that addition and when it was made?
A I know neither who made that addition nor do I know at what date it was made, but from the indictment, which I have before me, it is evident that the words were entered afterwards. If it appears desirable, I am prepared to submit the document which I have in my hand here.
Q When you received the indictment that additional entry had already been made, had it not?
A Yes, it had.
Q Can you say when you received the indictment?
A I have not entered the date on which I received it, on the copy of the indictment, and, therefore, I am not in apposition to state the exact date on which I received the indictment. I believe that I must have received it about the 26th of February 1944, for on that day, as is evident from my files which I have before me, I have a motion for evidence, which at that time, I made to the presiding judge of the Special Court.
Q Can you say, Dr. Escher, whether you received the indictment directly from the Prosecution or whether your client handed it to you?
A In this case, I was appointed as a defense counsel by the presiding judge, and, therefore, I must assume that the court or the office of the court, sent me the indictment.
Q Dr. Escher, during your interrogation here, did you look through the court files of the Fluhrer case?
A I certainly had them in my hand, and I do believe that I read in them, but I should not like to say so with an absolute certainty.
Q Do you by chance happen to remember that the prosecution, among its files--the files of the prosecution--entered the remark on the indictment "it is intended to demand the death sentence"?
A I don't remember that.
Q, Did you appeal for a pardon yourself?
A Yes I did, and I have a copy of that appeal among my files.
Q I am now going to discuss the Sponsel case.
THE PRESIDENT: There is a question in my mind that I would like to ask the witness. He has spoken of an application for a pardon. I am wondering if that means a complete discharge from custody, or whether it is a commutation of a larger sentence to a smaller one.
THE WITNESS: The application, in my application for clemency, was to commute the death sentence to a suitable penitentiary sentence.
THE PRESIDENT: You may proceed.
BY DR. SCHUBERT:
Q Dr. Escher, concerning the Sponsel case, you mention in your affidavit that the woman, whom I think you knew personally, in the opinion of many people who knew her, was not fully responsible concerning her state of mind. Can you remember what the expert in the case of Sponsel--the court physician--said about the responsibility before the penal law?
A I can remember the case fairly well. The court physician, Dr. Schneller, in the opinion which he submitted at the trial--in his opinion arrived at the conclusion that the conditions of Article 51, Sections 1 and 2, did not apply in the case of the defendant, that to be sure a certain amount of mental deficiency did exist but that that was not adequate to assume that her responsibility was considerably lessened within the meaning of Article 51, Section 2 of the Penal Code.
Q Dr. Escher, evidently at that time you acted as defense counsel quite frequently before the Penal Chamber. Do you know that since the beginning of the war the jurisdiction in respect to the so-called field post thefts had been very severe?
A Like all defense counsel and all jurists who had to deal with penal matters, I was naturally aware of that.
Q Can you tell me what the motion was which the prosecutor made at the session in the Sponsel case?
A Without scrutinizing my notes and merely by my recollection, I have no doubt that the prosecution demanded the death sentence.
I cannot find my notes from which I could tell the text of the motion or the contents, but I have no doubt that the prosecution did demand the death sentence.
DR. SCHUBERT: Thank you.
I have finished my cross-examination.
DR. SCHILF: May it please the Court, I will now refer to Exhibit 188, Document Book III-G, NG-677. Concerning this affidavit, a technical confusion has arisen. When examining the English text, it was found that the text which was printed in the German document book is not complete, or it seems to have been mutilated. So as not to delay matters, I would like to suggest that the witness, who evidently has before him a copy of the German text, should read this mutilation or omission into the record. The last page of the affidavit, the paragraph before the last, in the German document book, consists of six lines, whereas the English version is at least twice as long. The German version--Yes, Your Honor?
THE PRESIDENT: Is there any objection on the part of the prosecution to adding these notations?
MR. WOOLEYHAN: None whatever, Your Honor, if the affiant has a German copy there.
THL WITNESS: I have.
DR. SCHILF: May I make this suggestion in that case? That is, that the witness read from his original text the paragraph which begins with the words "I have been asked", and that I interrupt him as soon as his text does agree with the text of the German document book which I have before me?
JUDGE BRAND: Is that the next to the last paragraph?
DR. SCHILF: Yes.
JUDGE BRAND: About the nullification?
DR. SCHILF: Yes.
THE WITNESS: "I have been asked how the petition for nullification of the Senior Public Prosecutor at the Reich Supreme Court was obtained legally." That "legally" seems to have been put in by the typist. "In this connection, I am only able to state that, according to regular procedure, the chief of the local prosecution, thus, in Nurnberg, the Senior Public Prosecutor at the District Court of Nurnberg-Furth, in the cases with which I was concerned--Oberstaetsanwalt Schroeder--would, sent the documents, with an appended suggestion to use the petition for nullification, first to the Chief Public at the Court of Appeals, during the last years Generalstaatsanwalt Bems, and from there to the Senior Public Prosecutor at the Reich Supreme Court.
"According to the text of the law, the petition for nullification could also be applied to the advantage of the condemned. In one case, I myself filed a petition for nullification with the Chief Public Prosecutor at the Reich Supreme Court. I was informed, however, that there was no justification for the instigation of the petition for nullification."
DR. SCHILF: Witness, may I interrupt you at this point? From here on the text begins to agree.
JUDGE BRAND: That is identical to the English translation, with the possible exception of one word.
DR. SCHILF: Your Honor, it has been correctly translated in the English text, but our German document books do not contain it.
BY DR. SCHILF:
Q Now I am going to refer to the factual contents of your affidavit. This statement concerns itself exclusively with the problem of the nullity plea. Therefore, witness, I will ask you whether you consider yourself a particular specialist on this problem and fest yourself to be such an expert when, on 7 December 1946, you made that statement.
May I point out that the first part--I should like to say one half, the first half--is concerned with theoretical matters, that is to say, with the interpretation of the law. The remainder is concerned with facts. Furthermore, you refer to literature and also to decisions made by the Reich Supreme Court. May I ask you to give me your point of view.
A. On no account can I say that I am an expert or that I have special knowledge of the problem of the nullity plea. We defense counsel, generally speaking, do not have much time to devote ourselves to scientific problems. As a rule we deal with problems only when they have been brought to us by our practical work. Concerning the theoretical aspect of the nullity plea, I have never in my practice studied it, in detail, but when the nullity plea became topical, I examined the questions which a defense counsel has to investigate. When in December 1946 I was asked as to what I knew about the nullity plea, what I had to say about my knowledge of this matter, I mentioned the two cases cases which occurred in my practice. It seemed necessary to me, however, to give a brief introduction concerning the situation such as it was before the introduction of the nullity plea and such as I saw it after the introduction of the nullity plea. I read several decisions, but I would consider it conceit if I were to say that I possessed thorough knowledge of the problem of the nullity plea.
Q. Witness, in your practice you only came across two cases, isn't that correct?
A. Yes.
Q. In spite of your statement. Dr. Escher, I have to discuss one theoretical question with you. In your introduction such as you characterized it just now, on Page 2 under 2 of your affidavit, you have drawn a conclusion, that is a conclusion as to what the introduction of the nullity plea led to. You said, and I am going to quote literally: "The so-called nullity plea of the Oberreichsanwalt was created and thereby the basic legal principle, ne bis in idem, double jeopardy, was revoked and destroyed." As you made such far reaching statement on that point, I would like to hear in brief as to what at the time you deposited your affidavit you understood by the legal principle, "ne bis in idem", double jeopardy. I quoted you mentioned that principle twice. May I ask you to give a brief account to the Tribunal of your opinion as you held it at that time?
A. The principle of double jeopardy meant that a person on whom a legal verdict had been passed could not without new facts having emerged or without the conditions of Articles 359 and following of the Code of Penal Procedure applying, be retried by a court.
Neither the prosecution nor the defendant after legal sentence had been passed could demand a new trial unless the conditions such as they are laid down in the law were fulfilled. That is, for example, perjury on the part of a witness, the finding of new documents or similar fundamental new aspects. By that principle the possibility of the nullity plea was eliminated. And that and not more is what I believe to have stated in my affidavit.
Q. Dr. Escher, concerning the problem which, of course, is very involved, you have now given a brief statement about your personal interpretation of the principle of double jeopardy. That is your personal opinion, is it not? May I put to you the opinion of another legal expert on this principle, particularly with reference to the nullity plea , who said this -
MR. WOOLEYHAN: I object to the introduction of this document in the prosecution's case in chief. If the defense wants to introduce it, that is fine, but why read it into evidence now? A hypothetical question can be asked the witness if counsel so desires, but why put this evidenciary defense material in before the Prosecution has rested?
THE PRESIDENT: Let's hear your question stated again, please.
DR. SCHILF: The witness, though very briefly, which is difficult in view of the problem, has stated his opinion as to what he understands by the principle of double jeopardy. I want to put to him that another legal expert concerning in particular the nullity plea held the view that for the maintenance of that principle, for the protection of that principle, for that very reason the nullity plea was introduced, and that was prived by passages from documents -
MR. WOOLEYHAN: I have no objection now, Your Honor.
THE PRESIDENT: We are prepared to say that is not cross examination, telling what some other author has said. That wouldn't be proper cross examination. It seems to me, speaking for myself, that it is a legal question that you can argue to the court without consulting this witness about while he is on the witness stand.
DR. SCHILF: Your Honor, may I say one word on this point. The witness deposited an affidavit purely on a legal question. For four pages he commented on the problem of the nullity plea. It was the prosecution who caused that. For the prosecution he is obviously the expert on the nullity plea. If the prosecution regards him as such, the cross examination ought to provide the opportunity to put to him a different opinion held by a different legal expert.
JUDGE BRAND: You have already asked this witness what his present view is on the nullity plea, and now you are merely seeking to tell him that some one disagrees with him. In that respect you are not cross examining at all. It would be my view that it is improper cross examination, r improper purported cross examination. I don't think any one questions your right to present, in a proper way, the view of your expert, in your own case, to be sure.
If you will pardon the suggestion, I assume that it would not be improper cross examination for you to ask this witness if he agrees with some principle which has been asserted by some other person. Perhaps if you follow that procedure you may got to the end result which you seek. But a mere statement to the witness of what someone else claims to be the law is still, in my opinion, quite improper.
DR. SCHILF: I would now like to put the question, and I would ask whether the prosecutor has an objection to my question. I have not yet put my question.
MR. WOOLEYHAN: I merely suggest, in line with what the Tribunal said, that you ask the witness what he thinks of what this man said.
DR. SCHILF: Witness, concerning your opinion on the principle of double jeopardy, your view that principle was eliminated by the nullity plea, will you maintain your opinion in the face of what I am going to read to you now? It is a paper by Oberreichsanxalt Retzer, Leipzig, published in Deutsche Justiz, Volume 1941, No. 20, Page 562. I quote:
"It is doubtful whether the nullity plea is possible if the violation of the law which occurred refers to a condition of tho trial. It is undisputed in the case of a violation of the principle of double jeopardy. The Supreme Reich Court in a great number of cases revoked sentences where the principle f double jeopardy had been violated."
That is the end of the quotation. To make it clearer, the Supreme Reich Court revoked those decisions by way of the nullity plea, and four cases are quoted and the file numbers are given. My question: now that I have read this to you, do you maintain your opinion?
A. May I say briefly: the nullity plea could only bo made by the Oberreichsanwalt, but not only against the defendant but also in favor of the defendant. It was, therefore, altogether possible that the Oberreichsanwalt, if he considered a verdict unjust, should use the nullity plea in favor of the defendant. Such a case does exist, even if through certain circumstances or errors a man is sentenced twice for the same crime by different courts, which happened occationally because, for example, it wasn't known in the case of a Nurnberg case that this man had already been sentenced in Berlin. When that was revealed, the Oberreichsanwalt naturally could make use of the nullity plea in favor of the defendant. Such cases evidently are discussed in the decisions which my colleague has just put to me. In those cases, the nullity plea was a blessing and worked in favor of the defendant, but in most cases, or at least in very many cases, the nullity plea was used without any new facts or conditions, according to Article 359 by the Oberreichsanwalt against the defendant.
Q. Witness, the essence of what I put to you is this: you said by the nullity plea, the principle of double jeopardy has been destroyed, and the other author says that the nullity plea was in fact to protect that principle. I wanted to ask you whether you maintain your opinion, and you have not answered that question as yet.
A. I am of the opinion that the question, the way it is put, contains a little misunderstanding in so far as the Retzer Exxay deals only with one special case of the nullity plea where it was made in order to revoke decisions which had been made by violation of the principle of double jeopardy. Naturally, the principle of double jeopardy was not expressly eliminated, by so many words, but the effect of the introduction of the nullity plea was that a man on when a legal sentence had been passed without new facts or circumstances having come to light could be retried by a court. Sometimes it could operate in his fever, but in the majority of cases it wont against his interest, in my experience, that is.
Q. Witness, we will leave the subject. Evidently your opinion differs from Mr. Retzer's riews on the principle of double jeopardy. And not I have a last question.
MR. WOOLEYHAN: It pushed me so far, but this is argument.
THE PRESIDENT: Yes, that last statement.
MR. WOOLEYHAN: I'd like that to be stricken.
THE PRESIDENT: Yes, it will be stricken. That is an affirmative statement by way of argument and not a question.
DR. SCHILF: Your Honor, I would ask you to forgive me. I know it was in fact an argument, but I wanted to conclude the subject with an argument.
BY DR. SCHILF:
Q. Witness, a last question, which does not affect me personally, but which I think is necessary for the purpose of clarification. Did the Oberreichsanwalt at the People's Court have an opportunity to make the nullity plea?
A. As far as my information goes, I believe that the Ober reichsanwalt at the People's Court, contrary to the Oberreichsanwalt at the Supreme Reich Court, had nothing whatsoever to do with nullity pleas.
But I would like to say that I have no experience at all with the people's court because I never acted as a defense counsel before the people's Court. But from my general knowledge of affairs, I believe I can say that the Oberreichsanwalt at the People's Court had nothing whatsoever to do with nullity pleas.
THE PRESIDENT: The witness may be excused. Is there any further business before the court? If there is no other witness available we will therefore adjourn at this time until next Tuesday morning at none-thirty.
(The Tribunal adjourned until 27 May 1947, 0930 hours)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 27 May 1947, 0930-1630, Justice Marshall presiding.
THE MARSHALl: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Marshal, you will please ascertain if the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused temporarily at his own request. Please make the proper notation.
Produce the witness, Mr. Marshal.
THEODOR PFAFF, a witness took the stand and testified as follows:
JUDGE BRAND: Will you raise 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 BRAND: You may be seated.
DR. KOESSL (For the defendant Rothaug): May it please the Tribunal the witness Pfaff is to be heard on the affidavit which can be found in Document Book 3-E as NG-634 and Exhibit No. 187; that is in the German Document Book on Page 138.
THE PRESIDENT: Proceed.
EXAMINATION BY DR. KOESSL:
Q Witness, will you please give your full name and your occupation?
A Pfaff, Theodor, Amtsgerichtsrat, retired, at Nurnberg.
Q Witness, in your affidavit you mention that Rothaug did not tolerate any criticism of measures taken by the leadership of the State, and that in that regard he was unrelenting. Did you experience one case where Rothaug had denounced anybody on account of a matter of that kind or would have initiated proceedings?
A No, I do not know of any such a case.
Q You mention that Rothaug's manner of conducting proceedings was not objective. Did you make any observations to the effect that the irritability of Rothaug was caused by his condition of health and by the fact that he was overburdened with work?
A Well, Rothaug at times had toothache because he had very bad teeth, and he had a swollen face from this. At times I had the impression that the fact that he was particularly severe to defendants during the session at such times could be explained by that.
Q Did the thoroughness of the investigation suffer from that?
A No, Counsel.
Q Do you know of a case where Rothaug would have put different facts as the basis of the judgment than those that evolved from the trial?
A No, Counsel, no case of that kind is known to me.