A. No, I had more cases that I defended and that ended with death sentences.
Q. But you can't remember the case, can you?
A. In the meantime I have remembered, on the basis of information which I received from a friend of mine who attended a session by coincidence, where a young Frenchman, the son of a baker from Caen, was sentenced to death.
Q. Yes. Yes, you mentioned that case.
A. That young Frenchman, as my friend told me, was called Charles Blondell.
Q. I shall revert to that case. That is one of the cases which you mentioned. Then you mentioned that Oeschey always put to the defendants their previous convictions. As an experienced defense counsel before the Special Court you certainly know, and you will be able to confirm this, that the majority of cases that were brought to trial there were the cases of so-called habitual criminals, at any rate as far as general criminality was concerned? Is that correct?
A. Yes.
Q. In the case of these habitual criminals wasn't it mandatory that the list of previous convictions had to be stated?
A. Of course, but what I was going to say was more. As a rule all files of previous convictions were brought up. They were gone through and put to the defendant with all details.
Q. Yes. Then I want to speak about the case Strobel. You say here the Reich Minister of Justice had ruled that the prosecution should take place on the basis of paragraph 2 of the Law of December 20, 1934, and only on the basis of that paragraph. I want to emphasize that "only". The law mentioned is the so-called Heimtuecke Gesetz (law of malicious attacks). Is that correct?
A. Yes.
Q. Is it known to you, witness, that a prosecution on the basis of Paragraph 2 of the law on malicious attacks could only take place on the basis of a directive of the Reich Minister of Justice?
A. Yes.
Q. That directive was a requirement for the trial, in German opinion?
A. Yes.
Q. Dr. Eichinger, Strobel, as we know, subsequently was not only indicted on the basis of Paragraph 2 of the law of malicious attacks but also as an habitual criminal on the basis of other regulations. He was sentenced on the basis of all these regulations, is that correct?
A. Yes.
Q. Do you consider it in any way surprising that that directive of the Reich Minister of Justice does not mention the term "habitual criminal" or the appropriate regulations of penal law?
A. My recollection of these things today is not very good because my library was burned already in 1943 and I had to do with other books.
Q. At any rate, you frequently defended cases concerning malicious attacks?
A. Yes.
Q. Did you at any time find out from the files that the Reich Minister of Justice, when he gave the directives necessary for the prosecution, mentioned any legal provisions other than the law on malicious attacks?
A. I could not remember that.
Q. In this case two sessions took place, as you have stated. The first ended with a decision to interrupt proceedings in order to make investigations.
A. Yes.
Q. To find out whether the defendant was a dangerous habitual criminal.
A. Yes.
Q. Can you still remember that the defendant Strobel had no less than 48 previous convictions?
A. That may be.
Q. Witness, during your interrogation for this affidavit you apparently looked into the files?
A. Yes.
Q. Do you still remember the opinion by the court expert?
A. No, not at the moment.
Q. Not at the moment. During the second session which took place on the 19th of February 1944 you were the appointed defense counsel?
A. If I remember correctly, yes.
Q. In your affidavit you have stated that in that second session the prosecutor based his charges at first on the law of malicious intent, and you apparently mean to say that at the beginning of that session the prosecution had not yet termed the defendant as a dangerous habitual criminal.
A Yes, that is the way it looked to me from the record.
Q You cannot say that from your own recollection?
A No.
Q When you looked through the files, did you find out that a month before that session, the prosecutor reported to the general prosecutor that he intended to demand a death sentence?
A That I couldn't remember now.
Q May I ask you, Dr. Eichinger, when, approximately in your recollection, the case of the young Pole, which you described, took place?
A I no longer remember exactly. I believe it may have been in 1943.
Q You believe 1943?
A Yes.
Q Do you know or can you still remember what view was taken in the verdict or in the opinion about that crime? Was the decree on Poles applied or the decree on violent criminals? Do you remember anything.
A I could not remember that at the moment.
Q Furthermore, you mentioned a case of a young Frenchman, of whom you said before, in your opinion, his name was Charles Blondell?
A I believe so.
Q You state that that Frenchman together with other had committed burglaries.
A Yes.
Q Was it a case of a gang of burglars?
A That is what I assume.
Q Was Blondell the leader?
A I don't remember that any more.
Q Were the burglaries committed during the night?
A I believe so.
Q Was the sentence rendered in view of the crime committed during blackout?
A I believe so.
Q What were the sentences for the other participants?
A That I cannot remember very plainly any more.
Q I mean to say, prison terms or death sentences?
A Whether there were any other death sentences, I could not tell you. I only remember with certainty that there were also prison terms. I believe that they were the penitentiary terms.
Q Dr. Eichinger, you mentioned, as the last case, the case Zippelius which you defended before the Stangericht shortly before the end of the war.
A Yes.
Q Who was the prosecutor in that case?
A I believe prosecutor Dr. Schroeder.
Q What sentence did he demand?
A If I remember correctly, although a main witness for the prosecution in court had considerably modified her former statement, to my greatest surprise he still demanded the death sentence.
Q And what was the verdict?
A The decision was pronounced according to which the case was transferred to the regular courts.
DR. SCHUBERT: May it please the Tribunal, I have now finished the cross examination as far as it refers to the affidavit itself. Now I should like to deal with the Document, Exhibit No. 150, and I ask -- May it please the Tribunal, one of my colleggues was kind enough to bring the transcript of the day which shows when Exhibit 150 was submitted. I should like to quote two sentences briefly. It says here:
"Judge Brand (asked the prosecution): Quite independently of the manner in which this evidence has been submitted, do you agree that the defense may call and take any one of these individuals or all of these individuals into cross examination, who have made statements in this exhibit?
"(The answer by) Mr. Wooleyhan: Certainly, Your Honor."
MR. WOOLEYHAN: As long as you're referring to the record, I might also state that on numerous other occasions when the question of cross examining an affiant arose, we always understood from the Tribunal that that would occur concurrently with the defense case in chief.
THE PRESIDENT: Do we understand, Dr. Schubert, that if you can cross-examine this witness concerning that document, that will obviate the necessity of calling any other witnesses in relation to that affidavit?
DR. SCHUBERT: No, Your Honor; no other witnesses concerning that document. I do not intend, as far as Exhibit 150 is concerned, to crossexamine any other witness.
THE PRESIDENT: And you mean by that, not even when you come to your defense, will you call witnesses relating to that? Is that what we understand you to say.
DR. SCHUBERT: May it please the Tribunal, as far as that is concerned, I cannot make a statement with any amount of finality. I don't believe so. I do not have the intention so far to do so.
THE PRESIDENT: With the statement that you have just made to the Tribunal, you will be permitted to examine this witness on that document.
EXAMINATION BY DR. SCHUBERT:
Q Dr. Eichinger, I come now to the statement which you made on the 27 June 1946.
THE PRESIDENT: We will suspend just a moment until we can get that particular book from our rooms.
JUDGE BRAND: That is in Book 3-C, is it not?
DR. SCHUBERT: Yes, 30.
May it please the Tribunal, it's NG-513, Exhibit 150.
THE PRESIDENT: You may proceed.
EXAMINATION BY DR. SCHUBERT:
Q In this exhibit, there is at first an interrogation of local court councillor Dr. Eser. Then there is another transcript, the witness Mueller; and the third one is the interrogation of the witness Dr. Eichinger. May I proceed?
Dr. Eichinger, we have here your interrogation before the local court of Ebermannstadt on the 27 of June 1946. There you state in the beginning, I quote: "Therefore, I can only speak reservation that I can only say what I can remember without having any documents before me." Does that mean that what you stated thereafter may perhaps be subject to mistakes in recollection, or do you want it to mean that you only state that which you can remember well?
A. That was to mean that I had to make a certain reservation as far as general circumstances were concerned, and that because all records and files that I had were burned.
Q. Yes, I understand that, Dr. Eichinger, one of your clients was Count Montgelas.
A. Yes.
Q. Your client had made certain statements which at the time were considered objectional and even a serious crime. Can you still remember what kind of statements they were?
A. Rather severe and insulting statements against Hitler, and, if I remember correctly, against other leaders of the NSDAP.
Q. Dr. Eichinger, before the civilian court martial in the Standgericht, as we have seen, you defended a similar case of Zippelius. What statements were more severe -- those of Montgelas or Zippelius?
A. If I remember correctly, statements on account of which Montgelas was indicted were far more serious than those in the case of Zippelius.
Q. Dr. Eichinger, you were not called to the session during which your client Montgelas was sentenced; at any rate, you did not receive any summons.
A. No.
Q. It can be seen from your affidavit that at that time you had bomb damage at your office. Do you still remember when your office was destroyed?
A. I could not remember the date with absolute certainty; I believe, however, that my emergency office, at that time at Fuerther Strasse 36, was hit on the 16th or 17th of March, 1945, on the occasion of an air attack and was destroyed by pressure; from that time on it could not be used any more.
Q. And then you moved?
A. Then, as far as I remember, several days later, it may have been around the 20th of March, I moved to my last emergency office, and that was the Defense Counsel Room, in the courthouse.
Q Dr. Eichinger, what did you do in order to announce the fact that you had moved your office?
AAs far as I recall, I sent to all justice authorities in the courthouse building, an announcement to the effect that my emergency office was now in the Defense Counsel Room of the Palace of Justice.
Q Do you remember quite accurately that that announcement was really distributed?
A I believe so.
Q You had that done through your office?
A Yes. May be since I was in the building myself I even distributed the announcement personally in the various rooms where these announcements were to go, to be mailed, and so on was to be accepted.
Q But quite precisely you can't remember that?
A I believe so.
Q Dr. Eichinger, what do you mean by having distributed to all justice authorities?
A I believe that I sent that announcement to the local Court, the District Court, the District Court of Appeals, and most probably also to the prosecution
Q In every case in one copy?
A Probably so.
Q Dr. Eichinger, then you mentioned the fact that the deputy Gauleiter Holz at the last moment ordered the establishment of the civilian courts martial (Standgericht), and you continued -- I quote: "Advisor in these matters was Landgerichtsdirector Dr. Oeschey, District Court, who at the same time was a member of the Gau Staff." Is it known to you, Dr. Eichinger, that the defendant Oeschey, until the 3rd April, 1945, was a soldier and was serving in the forces, and that he was transferred from the armed forces directly to Nurnberg to take over the job of Presiding Judge of the Standgericht?
A I remember having heard that the Landgerichtsdirector Oeschey a few months before the end of the war had been drafted, and I was somewhat surprised when I saw him back in office again. The details, whether he was ordered to that job or not, are not known to me.
Q Dr. Eichinger, what makes you think that the defendant Oeschey was the adviser of the Gauleiter in these Standgericht matters -- civilian courts martials matters.
A I based that on the fact that Oeschey was that for many years until he was drafted, and further more, on the fact that he certainly was the confidential adviser of the Gauleitung in legal matters, and that he was the man who had been given the job of Presiding Judge of the Standgericht.
Q You don't know any facts about that alleged activity of advisor, of Oeschey about these Standgericht matters?
A Facts, no.
Q Then, you said that the Standgericht, in your opinion, had net all been competent to deal with the case Montgelas, because the files, as the prosecutor had stated, were sent to the Chief Prosecutor of the People's Court -- Chief Reich Prosecutor of the People's Court. Isn't it known to you, Dr. Eichinger, and didn't anybody tell you at the time, that the files had been lost?
A I never heard about that.
Q You didn't?
A Prosecutor Mueller who dealt with the case Montgelas neither told me anything about that.
Q He didn't. Then you state that no witnesses were called to the main trial against Montgelas.
AAbout that I do not know anything for sure, but I believe to remember that in my subsequent discussion with the senior prosecutor Schroeder, the latter told me that no witnesses were needed because the essential facts against the defendant had been admitted by Count Montgelas.
Q From your own observations you don't know anything about that?
A No, I did not attend the session.
DR. SCHUBERT: I am at the end of my cross examination of the witness, Your Honor.
EXAMINATION BY DR. SCHILF: (Attorney for defendant Klomm)
Q I should like to put only one question to this witness concerning the Reich Ministry of Justice at that time. Witness, in your affidavit of 19 December, 1946, on the first page of the German text, you mention that apparently on principle the Defense before Oeschey, and you state literally -- was quite helpless. Then you continued -- if already the party was against the Defense Counsel, then Oeschey was as much in particular. Then comes the passage which I want to quote: "At that time I heard about a secret decree of the Reich Ministry of Justice, but had not seen it, which supposedly instructed the judges to supervise the attorneys, and to report their, "slip-ups to the proper authorities." Could you tell us in some mere detail what that was supposed to have been -- that secret decree.
A Whether there was such a decree, in fact, I could not say; I have not seen any decree of that kind, but I heard people talk about it by way of rumor, that there existed a decree of that kind.
Q Was anything mentioned in that connection with the socalled lawyers letters?
A That I could not remember.
Q Do you know the socalled lawyers letters?
A I remember only very vaguely -
MR. WOOLEYHAN: I object. That is completely outside the scope of the affidavit.
THE PRESIDENT: There is nothing in there about the lawyers letters. I do not recall anything about lawyers letters in any of the affidavit.
DR. SCHILF: I put the question only because the witness just told us that he only heard a rumor about a secret decree, possibly we could get a clarification whether by the secret decree he meant lawyers letters, but he denied that, and that finished that question.
Q May I summarize and ask you: You only heard rumors without having been in a position to investigate what part was true and what part was not?
A Yes.
DR. SCHILF: I have no further questions.
THE PRESIDENT: Any redirect examination at this time.
EXAMINATION BY MR. WOOLEYHAN:Just one question your Honor.
Q Dr. Eichinger, on the 20th of March 1945, did you move into a new office in the courthouse here?
AAt about that date.
Q Now, the next month, on the 5th of April, as you later learned did the trial of Count Montgelas occur?
A Yes.
Q When did you hear about the trial of Count Montgelas for the first time?
A If I remember correctly, on Tuesday, the 10th of April 1945, when I ....
Q Excuse me, Dr. Eichinger, in other words, you heard about the trial of Count Montgelas five days after it happened; is that correct?
A Yes, indeed.
Q And, was Count Montgelas your client; were you defending him?
A Yes.
Q After you moved into your new office on or about the 20th of the preceding month, who occupied the office next door -- in general, I do not want their names; were they defense counsel, lawyers, prosecutors, or who were they?
AAs far as I can remember, on one side of the defense counsel office was the office of the president of the chamber of lawyers, and on the other side of that, defense counsel office which was an emergency office at that time. There were two more rooms, which were put to the disposal of the chamber for attorneys, and were used as emergency offices for defense counsel whose offices had been bombed out. I believe Dr. Hundrisser a friend of mine and attorney Sammetreuter were working in these rooms.
Q Dr. Eichinger, you were surrounded by all the various lawyers. Now, did you receive at anytime, on or before the 5th of April any notification of the fact that your client, Count Montgelas, was going to be tried for his life on the 5th of April; were you notified?
A I was not told a thing about it; so, that on the 10th of April I intended to visit him in the prison, and to my greatest surprise, I heard that several days ago he had been sentence and executed.
Q Now, Dr. Eichinger, the statements that you made before the district court in Ebermannstadt on the 27th of June 1946 which if I interpolate for the Court, is part of Exhibit 150--do you now affirm the facts that you there stated?
A Yes.
MR. WOOLEYHAN: That is all.
THE PRESIDENT: The witness may be excused.
(The witness was then excused and withdrew from the courtroom.)
THE PRESIDENT: At this time, ten minutes before the usual time for the morning recess, may we have the name of the next witness.
DR. SCHUBERT: May it please the Tribunal, the next witness is the witness Kroher.
JUDGE BRAND: What is the exhibit number?
DR. SCHUBERT: It is 230.
THE PRESIDENT: I would like to ask the Prosecution again whether this is among those to which you have no objection?
MR. WOOLEYHAN: No objection, Your Honor.
THE PRESIDENT: It is so near the usual recess time, that we will take our recess of fifteen minutes at this time, and have your witness ready after reconvening.
(Thereupon a recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF: May it please the Court, I have to make a request on behalf of all the defense counsel. Perhaps we will also get the support of the gentlemen of the prosecution. Next Monday is the second day of Whitsuntide. In Germany that is a very high holiday. We have just been informed -- it had been intended -- that next Monday witnesses will be called. That would mean that the Court will probably be in session on Monday. Difficulties, however, arise from the fact that it is a high holiday in Germany. Witnesses who come from other places will probably not find proper means of transportation. There is a holiday schedule on, and other limitations on traffic. As we have just been told, the Tribunal in the medical trial, and in the Flick trial, have already decided not to hold court on Monday. In consideration of the difficulties which might arise for the witnesses, I believe that I have also stated a technical reason for our request not to hold a court session on Monday.
THE PRESIDENT: There will be no court next Monday.
HERMANN KRONER, a witness, took the stand and testified as follows:
JUDGE BRAND: Witness, will you raise your right hand 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.
EXAMINATION BY DR. SCHUBERT:
Q. Witness, please tell your name and profession to the Court.
A. Dr. Hermann Kroher, lawyer, in Nurnberg.
Q. Witness, on the 7th of January 1947 you submitted an affidavit for the prosecution. In this affidavit you make statements regarding the Special Court in Nurnberg. May I ask you whether, before other courts also, and Special Courts, you were defense counsel?
A. I was defense counsel at the District Court, Nurnberg, the Penal Chamber; and only also before the Special Court in Nurnberg, not before other Special courts.
Q. You made certain statements about the Special Court Nurnberg without differentiating, in so doing, between the individual presiding judges and associate judges who were sitting on the Special Court. Do your remarks refer to the entire Special Court?
A. First of all they refer to the two presiding judges of the Special Court.
Q. Which two?
A. To Landgerichtsdirector Rothaug, and Landgerichtsdirector Oeschey.
Q. Did the Special Court also have other presiding judges?
A. Yes, there was also a presiding judge, Landgerichtsdirector Forber, at least during the later years.
Q. Did other gentlemen also preside?
A. Yes, certainly; before that other gentlemen also were presiding judges.
Q. And in later times, witness?
A. In later times I can really only remember Rothaug, Oeschey, and Ferber. It may be that perhaps Landgerichtsrat Pfaff was also presiding judge.
Q. Witness, you stated that once, because of a remark you made during a session, a denunciation was made against you to the prosecution, that than there was a trial because of violation of the law for punichment for malicious acts, and that finally you had to pay a fine of five hundred marks, which was imposed by the Lawyers' Chamber.
A. Correct.
Q. Who was in this session when you made the remark?
A. Landgerichtsdirector Ferber, District Court Director Ferber.
Q. Dr. Ferber was p residing judge?
A. Yes, Ferber was presiding judge.
Q. Do you know who initiated the denunciation?
A. No.
Q. In this connection, can you make a reproach against the defendant Oeschey?
A. No, not at all.
Q. Here in your affidavit you mention a case Bachhuber, in which you were defense counsel.
A. Yes.
Q. Unfortunately, I do not have the files of this case at hand, so that I cannot question you extensively about it. Therefore, I will have to refrain from my submission of evidence to that extent until I have tho file. I only want to ask you one question.
From your statements it is apparent that you considered the sentence harsh. Do you mean to say by that that it was a wrong sentence?
A. I cannot say that.
Q. You then mention a case Gruber, in which you were also defense counsel. In this case was there an examination of a woman witness cutside of Numberg? Can you remember that?
A. Yes. The witness was interrogated by a member of the Special Court in her apartment in Feucht.
Q. Witness, are you of the opinion that the proceedings were extensive and exhaustive before and during the main trial?
A. In the case Gruber, all material evidence which I offered, as far as I remember, was admitted.
Q. Dr. Kroher, you say, furthermore, that the presiding judges of the Nurnberg Special Court, during a trial, were in the habit of making remarks of this kind; "We will put your head at your foot", or, "We shall show you, you may be sure, as to how criminals are extermination."
Did you hear such remarks made by tho presiding judge Oeschey?
A. Both presiding judges of the Nurnberg Special Court liked to make remarks of that kind.
Q. Did the presiding judge Oeschey ever make a remark to the effect "We will put your head at your feet"? Can you remember that?
A. Literally, I cannot remember such a statement of the presiding judge Oeschey.
DR. SCHUBER: Thank you very much.
My cross-examination is concluded.
BY DR. KOESSL (Counsel for the defendant Rothaug):
Q. Witness, in your affidavit you say that you were treated harshly but correctly.
A. Correct.
Q. From that may I infer that you absolutely had the possibility to make requests for submission of evidence?
A. I could offer evidence, but there was very little chance that it would be admitted in any way whatsoever.
Q. Perhaps you had little chance to offer evidence because of the method of conducting the trial; that is, that during the trial all questions had been treated in such an exhaustive manner that there was little need for the submission of evidence?
A. I don't want to say that, but rather, matters were as follows, namely, that requests for the submission of evidence on the part of defense counsel were refused as being unnecessary in the case, even thought defense counsel, as such, considered this evidence as being necessary for the trial; otherwise he would not have asked to have it submitted.
Q. In such a case, witness, you of course had the possibility of appealing against the sentence if you had a well-founded supposition that your offer of evidence was refused unjustly.
A. Yes.
Q. In the Malicious Acts case against Korher, did you--
MR. WOOLEYHAN (Interposing): May it please the Court, I don't like to interrupt, but the answer to that last question, as I got it, was that the witness had the right to appeal a sentence. Now, if they are talking about the Special Court, that clearly is erroneous because, as a matter of law, there was no appeal.
THE PRESIDENT: The observation of the prosecutor is certainly true, so please specify which court you have reference to when you ask him if he could appeal.
DR. KOESSL: May it please the Court, from the law we can prove that all of the sentences of the Special Courts could be contested, on the basis of Article 26, Section 2 of the Code of Legal Procedure, by means of reopening a case.
THE PRESIDENT: Do you refer to extraordinary appeals and nullity pleas in your last statement?
DR. KOESSL: No, to the method of reopening a case, according to Article 26, Section 2 of the competence order. This regulation offered the possibility to have all sentences by the Special Courts contested, and not only for legal reasons, but also for factual reasons, because, by a circumstance in the meaning of this regulation, legal as well as factual points of view were considered.
JUDGE BRAND: By what Tribunal is it you claim the application for a reopening of the case was to be decided when the case had been tried in the Special Court?
DR. KOESSL: The facts were as follows:
The application for the reopening of a case could be made so that the Penal Chamber, in a regular procedure, could reopen the case -until 1943. That is, during the whole time when Rothaug was presiding judge of the Special Court. If the reopening of the case was refused, a possibility for complaint existed. The Senate of the Oberlandesgericht, of the District Court of Appeals, decided about this complaint. Members of this Senate at the District Court of Appeals at that time are still today holding high offices in the Administration of Justice. Thus, there was a very great possibility to reexamine all sentences.
JUDGE BRAND: You refer to the period up to 1943?
DR. KOESSL: Yes.
JUDGE BRAND: What happened after that?
DR. KOESSL: After 1943 there was only a small difference, because from that time on this procedure was carried on by the Special Courts themselves, and no longer by the Penal Chamber. However, it is not a significant difference, because the possibility of complaint to the District Court of Appeals was maintained.
THE PRESIDENT: One moment, Dr. Koessl. You have used the word "reopen". I think I am pretty familiar with the procedure during that period, and I have never seen the word "reopening". I have seen the word "revision." Is that the word you refer to?
DR. KOESSL: No, Your Honor. In Germany we differentiate between different types of possibilities of contesting a judgment. All of these possibilities of contesting a sentence are called legal recourse. One of the subdivision of legal recourse are the so-called legal remedy. There are three types of legal remedies, according to the German code of legal procedure. First, the complaint; second, the appeal against sentences. The appeal made it possible to examine the facts as well as the legal reasons. Third, the revision. The revision could only examine the legal grounds.
THE PRESIDENT: Now, Dr. Keossl, surely neither the ordinary appeal nor the revision could be employed concerning sentences rendered by the Special Court.
DR. KOESSL: These legal remedies could not be used. However, the legal aid of the reopening of a case was there. If the Court permits, I shall conclude the matter in brief sentences. If the legal remedies were used, the decision was first tested by a higher court. In the case of the legal recourse, by using the legal aid of reopening a case, etc., the examination was first principally done by the same court, the same instance. The trials by Special Courts, however, during the whole time when Rothaug was active there until 1943, the special circumstance existed that here regarding the reopening of the trial and the carrying out of the reopening was not done by the same Special Court but by means of a regular procedure outside of the Special Court, in the penal chambers of the District Courts. And this regulation was, unfortunately, relative little known in the circles of lawyers in its true significance. However, it was repeatedly applied with success, and I shall prove this.
MR. WOOLEYHAN: Well, I hope he can prove it, Your Honor. This does not constitute proof.