JUDGE BRAND: Why should we not hear some testimony as to whether he is here willingly.
MR. LA FOLLETTE: That is what I am advising Your Honor. The Captain is here if the Court will call him as its own witness.
THE PRESIDENT: Let the physician be called as a witness. The other witness will temporarily stand aside.
CAPTAIN CHARLES J. ROSCOE: A witness, took the stand and testified as follows:
BY JUDGE BLAIR: Be sworn. Raise your right hand. Be sworn. You solemnly swear that the testimony you shall give in this case shall be the truth, the whole truth and nothing but the truth, so help you God.
A Yes. I do.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q Captain, you will state your name, please.
A Charles j. Roscoe.
Q And you are a qualified physician?
A Yes, sir.
Q What is your present position?
A Prison Medical Officer.
Q Have you examined the defendant Rothaug last night and this morning
A I saw him; I didn't examine him thoroughly. I spoke with him.
Q Did he -- does he object to coming co Court, or do you find it impossible for him to be in Court: What is your opinion?
A I think it is possible for him to appear in Court today -- if it that necessary that he appear here. I think that he is perfectly able to stand at least one session of Court.
Q You don't understand that the Prosecution orders him to appear, * that they said that if he was able to appear, he should appear. Is that correct?
A I was told that it was in his interests to appear today in Court, and that if he could be here the Prosecution would like to have him here, so think that he is able to appear today.
Q Did the defendant -- What did the defendant say -- if anything -when you told him that he could come, or that you would bring him?
A He told me that last night he did have some gastric pain and that he had some discomfort at the present time, but he is not physically incapacitated by it.
Q I still want to know whether or not he objected to coming-- or do you know?
A That I don't know; I didn't go into that. I didn't ask him that is any detail.
Q In your opinion, it will not be injurious to his health to be in the court room on this day?
A That is right.
Q If the Tribunal desires to ask -- or the Defense?
BY DR. KOESSL:
Q Doctor, during the last days I spoke quite frequently with the defendant. He was not even in a position during the few hours which I was with him to remain with me without interruption. May I ask you whether you are con vinced that the defendant can sit here without interruption -- if only for the hours?
A I think he is able to do that.
Q Did you ask him?
A No, I didn't ask him that.
Q When did you examine him more thoroughly for the last time?
A I have left the examination mostly up to the physician at the hos pital there, Dr. Windisch, and he has been advising me of his progress from day to day.
Q Thank you.
MR. LA FOLLETTE: I just want to make it clear that we do not, of course, insist that this witness stay.
THE PRESIDENT: The Tribunal will make this ruling. Let him be brought in with the understanding on his part that if he feels that his physical con dition is such that he wants to leave, he may leave at any time; in which event the rule we have heretofore made will apply, and we understand that i the wish of this defendant to be absent and for the trial to go on in his absence under the rules we have heretofore laid down.
(Witness excused)
MR. WOLLEYHAND: Would you please see if the defendant Rothaug is able to be brought in?
THE PRESIDENT: Let the defendant Rothaug be provided with ear 'phones hear what I am about to say.
MR. WOLLEYHAN: Will you test the English channel?
INTERPRETER: (Tests channel)
MR. WOLLEYHAN: Dr. Feber -
MR. LA FOLLETTE: One moment.
MR. WOLLEYHAN: I am sorry.
THE PRESIDENT: Dr. Rothaug, can you hear what I am saying?
DR. ROTHAUG (From the dock): Yes.
THE PRESIDENT: You are now advised that your presence here is desirable and -- if you are physically able to be present -- necessary. On the other * there seems to be some question as to your physical condition and your ability to be here during the course of the examination of this witness.
This witness is testifying concerning a matter in which you are personally interested. are at liberty to leave the court room at any time when you feel that your physical condition is such that you can not safely remain. Whenever (I will this to Dr. Brieger ) the witness desires to -
DR. KOESSL: Dr. Koessl -
THE PRESIDENT: Dr. Koessl... Whenever the defendant desires to leave he will communicate that fact to you and a guard will then be furnished to take him from the room.
DR. KOESSL: Thank you very much.
Dr. FEBER: a witness, resumed his place on the stand, and testified follows:
DIRECT EXAMINATION (Continued) BY MR. WOLLEYHAN:
Q Dr. Feber, continue where you left off in describing your profession al career.
A When, on the first of November 1940, as counsel with the District Court Nurnberg-Furth, I was transferred there, I came as a judicial member a member to the Special Court. At that time, Dr. Rothaug was the presiding judge of that Special Court. He had two deputies. At that time the first deputy was Dr. Engert and the second one Mr. Oeschey. Mr. Oeschey was, on the first of April 1941, with his promotion as Director of the District Court he became the first deputy of Mr. Rothaug. And on the first of August 1941, when Mr. Engert asked Chief Public Prosecutor Oberstaatsanwalt, was promote to the office of the Public Prosecutor Nurnberg -
Q Witness, may I interrupt a moment? Please confine your testimony your own professional career, and not that of any other.
A Yes, yes. On the first of August 1941, therefore, I became deput Mr. Oeschey should not be available. I became deputy for Mr. Rothaug. On to first of January 1943, I was promoted to Director of the District Court, La gericht Director. It became effective at the end -- It was announced at the end of February 1943 and was pre-dated.
Therefore, I could have left the Special Court in March 1943 because, however, at that time, the transfer of Mr. Rothaug to Berlin as Reichsanwalt, Reich Prosecutor at the People's Court, was about to take place. And because Landgerichtdirector Counsellor, Kock, who had been considered as successor to Mr. Rothaug, and could not take this place because of illness, from the time of the first of May 1943 on, five months following that time until the first of October 1943, I was appointed as the presiding judge of the Special Court in Nurnberg. On the first of October 1943, Mr. Oeschey took over the Special Courtand I, myself, became presiding judge of a criminal division of the court. As regards my political career, I would like to add the following: That during the time when I was Public Prosecutor in 1937, the director of the office Oberstaatsanwalt, Chief Public Prosecutor Denzler reported everybody to become a member of the party via a gau -- all those who were at that time not members of the party... In the fall of 1937, through this report, I became a member of the NSDAP, and the date of my entry was recorded as the first of May 1937... The Gau Group leader for judges and prosecutors, Mr. Rothaug, in 1941, later in the year, told the director of the Gau Legal Office at the time -- Oeschey ---- he suggested to Oeschey that I should become an associate in the Gau-Office. However, I did not receive an appointment through the Gau leader.
That, in brief, is my career.
Q It appears, Dr. Feber, that you know Oswald Rothaug; is that true? You know him?
A Yes, I know him.
Q You mentioned his being in Nurnberg in one position or another...When did Rothaug come to Nurnberg?
A Hr. Rothaug took over the Special Court Nurnberg on the first of April 1937 when he was appointed director of the district court in Nurnberg. At that time he came from Schweinfurth.
Q You were prosecutor in Nurnberg at that time, were you not?
A Yes, I was prosecutor with the Special Court. I was for the Prosecution.
Q Yes -
AAnd I knew the conditions at the Special Court. I knew them even before the time of Mr. Rothaug.
Q Do you know whether or not anyone requested that Rothaug come to Nurnberg in 1937?
A The conditions in Nurnberg were at that time as follows:
Against the presiding judges at that time of the Special Court, Mr. Rothaug, some attacks had been made, and from discussions with the Gauleader in the Rechtswahrerbund -- the Lawyers' Association -- at that time the leader of the office, Staatsekretaer Denzler, and the leader in the NSDAP -- that was the First Prosecutor, Dr. Buettner -- through them I knew and found out that wishes of the party were aimed at appointing a more politically active, more definitely political judge to the Special Court.
The gentlemen whom I have just mentioned, Denzler, Buettner, and also Public Prosecutor Engert, who was still active at the time, who knew the conditions frequently expressed the opinion that Herr Rothaug, whom I did not know at that time at all, would come and that thus a new air would blow in the Special Court.
Q. Witness, when Rothaug, as you describe, came to Nuernberg in 1937, did he come - I am merely recalling your memory - did he come as presiding judge of the Special Court in Nuernberg?
A. Herr Rothaug came through a promotion. He came to Nuernberg and took the place of the at that time presiding judge at the Special Court. His name was Kreiner. Herr Kreiner became deputy president and his task as presiding judge at the Special Court and judge of the Jury Court was taken over by Mr. Rothaug.
Q. Witness, as prosecutor before the Nuernberg Special Court in 1937 did you notice any changes in the conduct after Rothaug become presiding judge?
A. The changes were already recognizable when Mr. Rothaug was about to come. If I may use a common expression, it happened with the political accompanying music. I already mentioned the gentlemen Denzler, Engert, and Buettner, who at that time especially pointed towards this man, especially in official conversations. Soon there was talk also and after Mr. Rothaug was where this could be observed by me, too, that he was in close contact, with the leadership of the Party. At that time it was Gauleiter Streicher Gau Inspector Haberkorn, Kreisleiter of Nuernberg Zimmermann, and other gentlemen of the SA, for example, Witzbacher. There was talk that he had contact with them and social contact with them, and this also made its influence felt in conversations in other directions.
Q. Witness, this is very confusing. Wasn't Rothaug a member of the Ludendorff movement?
A. At that time people --
Q. Witness, may I interrupt once again? Would you please answer whether or not at that time Rothaug was a member of the Ludendorff Movement.
A. Rothaug always admitted that he was a member of that group and on the 1st of April, 1937, when he came to Nuernberg, Rothaug was not at all a Party member yet.
Q. Wasn't the Ludendorff Movement an opponent of the NSDAP?
A. About that I had a conversation with the chief of the office at the time, Chief Public Prosecutor Denzler. Denzler at that time pointed out to me that he had certain difficulties in high-up Party circles and that he had to clear up these difficulties - aversions - to the person of Rothaug just because he was a follower of Ludendorff. However, Herr Denzler had succeeded in convincing the Party authorities that Rothaug in spite of being a follower of Ludendorff was an absolutely reliable man working in the direction of the Party and was reliable for the Special Court in Nuernberg. That Rothaug further was active as a member of the Ludendorff Movement he never denied and through the writings which he read and which he brought into the office he emphasized and manifested this.
Q. Dr. Feber, since Rothaug, as you say, was a member of the Ludendorff Movement which, as you have further said, was an opponent of the Nazi Party, how then did he become so intimate and acceptable as you have described with Party officials in Nuernberg? How did that happen?
A. About this problem, of course, there was at the time a lot of talk and as explanation it was generally accepted that there was especially close contact of Mr. Rothaug and the then Gau Inspector Haberkorn and that this was the main cause, or was supposed to have been the main cause that the higher Party authorities did not make any objections against Rothaug. Through Haberkorn Rothaug had made contact with all important Party leaders and leaders of affiliated organizations of the Party and this was made possible because Haberkorn was an owner of a restaurant, the "Blaue Traube", which was well known at the time, and in Court No. 3 i this restaurant the important leaders of the SA, the SS, the Party itself, and of economic associations were often there and through the acquaintance with the inspector of the Gau and his followers it was very easy for Rothaug to meet leaders of the Party in higher offices outside of Nuernberg.
Q. Dr. Feber, do you know what happened to the Ludendorff Movement?
A. The Ludendorff Movement did not seem to be important enough for me personally to concern myself with its fate. I only know that essentially there was a change when in newspapers and public posters one could read that Adolf Hitler had visited Ludendorff in Munich. And from then on one could observe that the followers of the Ludendorff Movement too were acceptable in society, if I may say so.
Q. Acceptable, witness, in what society?
A. Within the Party, of course.
Q. Dr. Feber, according to your professional history which you have just related, you were prosecutor before the Special Court in Nuernberg in 1938, is that right?
A. Yes, yes, that's correct.
Q. In 1938 do you remember a case before that court; namely, the Nuernberg Special Court, involving a defendant named Heller?
A. The prosecutor seems to refer to the criminal matter, the case against the two lovers, Heller and a girl, who were charged because of a so-called automobile trap. Is that correct, that they came to court because of that automobile trap?
Q. Yes.
A. Yes, I remember that case.
Q. Did you have anything to do with that case?
A. In this case I did not take part personally. I did not work on it. However, I observed it because the prosecutor who worked on this case often asked me for advice. I also was present in the sessions of the court in the audience, and the public prosecutor, after the sentence had been executed, informed be about all the events since the pro nouncing of the sentence until he returned to Nuernberg.
Q. Dr. Feber, basing your statements on what your associate public prosecutor told you and what you saw in the courtroom during the trial of this Heller case to which you refer, can you describe what happened in that case?
A. Yes, I can sketch the case - describe it briefly. The Reich, on the special wish of Adolf Hitler, had promulgated a law according to which the putting of an automobile trap was punishable or threatened with capital punishment. This was the first case in Nuernberg which happened soon after the promulgation of the law. A driver of a taxi was asked by a couple to drive it outside of Nuernberg. On the way the fare, the taxi fare, forced the driver to stop. He wanted to rob his money from the taxi meter. The use of force consisted of a pistol, the holding up of a pistol. The driver could resist this attack. The couple fled.
The neighborhood where the couple was to be searched was surrounded by a police command which was called together very quickly. The couple was arrested and soon it was handed over to the Special Court for sentencing. At that time some special courts outside of Nuernberg, in an unusual need to save time, had made time records, that is, to the effect that between the seizure of the criminals, the sentencing, and the execution of the sentence, that the tine spent between them was supposed to be as small as possible.
Nuernberg now, at that time, with its chief public prosecutor Denzler, also was ambitious to demonstrate here how quickly in Nuernberg one could be put from life to death and the Special Court under the presiding judge Rothaug was put into the service of that ambition.
MR. WOOLEYHAN: One moment, witness. Does the Court wish to take the morning recess at this time?
THE PRESIDENT: We will take the recess at this time for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: (Attorney for Defendant Rothaug) May it please the Tribunal, very fortunately I am finding myself forced to state that the defendant Rothaug is not in a position sufficiently to attend these proceedings, and to remain in this courtroom, since he is suffering too much pain, having had tremendous stomach pains during the entire night as well as vomiting and having been unable to sleep; to sit down is causing him much too much trouble; and, therefore, I beg to ask you, Mr. President, to make an order to the effect that the defendant Rothaug may again return to the hospital.
THE PRESIDENT: Are you at this time requesting permission on behalf of your client, Dr. Rothaug to be absent during the further examination of this witness?
DR. KOESSL: Yes, your Honor, I am making the request to this Tribunal that the examination of the witness should be continued without the defendant Rothaug in attendance.
THE PRESIDENT: Your request on behalf of the defendant Rothaug will be granted at this time; and the cross examination of this witness will be governed by the ruling that was made last Saturday.
DR. KOESSL: Thank your.
(CROSS EXAMINATION? Dr. FEBER, continued) BY MR. WOOLEYHAN:
Q Dr. Feber, will you continue with your description of what happened in the Heller case.
A The case Heller had a special peculiarity in its proceedings before the Special Court, in as far as similarly as during the summer of 1937 and this already happened with consultation of high departments of the party, for this trial went on its way; just as in the case in 1937, which I may describe later by request of the prosecution. In this case of Heller, too, Gauleiter Streicher was invited to attend the sessions of the Court; the sessions took place on a floor above the very room in which we are now, namely, in Room 600, and Gauleiter Streicher was seated with his Adjutant Koenig in the first row, wearing a uniform, and there were several other big people from the party also in uniform who were representing the Propaganda Department of the Gau; there was a generous sprinkling of police, if they weren't concerned with the case, as spectators, and the large hall was filled to the last place.
During the proceedings there were several recesses, during which the crowd had sufficient opportunity to discover just how much Gauleiter Streicher personally was concerned himself with the proceedings and sentences in this case.
Q Dr. Feber, you speak of Gauleiter Streicher being in the audience in the Heller case.
A Yes.
Q Was that Gauleiter Streicher the same Gauleiter Streicher who was the editor of the "Der Stuermer?"
A Yes, that is correct; the same Streicher.
Q Continue.
A During the proceedings in this case it had become known that the acting county court medical officer, Dr. Kunz, had discovered that the mistress of Heller, who participated in this perpetration, was pregnant; and that, therefore, a death sentence which was to be expected could not be carried out, since it was the ruling of the penal code that this should not be carried out. Gauleiter Streicher vividly interested himself in this and attempted to influence this decision through the Chief Public Prosecutor Denzler, to the effect that the medical officer would refrain from stating that this woman was pregnant.
Q Dr. Feber, may I interrupt -- you said that there were two defendants in the Heller case; did you not?
A Yes, there were two defendants. Heller was indicted and the girl friend was involved.
Q I see. Was the defendant Heller Jewish?
A No.
Q Was his girl friend Jewish?
A No.
Q Then why -- let me withdraw that; then, how do you account for the fact that Gauleiter Streicher was so interested in the case?
A Gauleiter Streicher was interested to see to it that a Special Court was sitting in his Gau, in his district, which in rapid succession would quickly deal with the do away with such apparent criminals; and. which, between the announcement of the findings and the carrying out of the sentence, would allow the shortest possible time to elapse. Consequently, Gauleiter Streicher was here, in person, making efforts that any questions of reprieve, which of course had to be asked for, could be settled as quickly as possible so that during the same night, before midnight, the sentence would be carried out, such as a death sentence in which Streicher was interested, and which was contrary be the rules and regulations, in which he conspired with his adjutant Koening.
Q Dr. Feber, ever what district court areas did the Nurnberg Special Court have jurisdiction?
A The Special Court in Number had jurisdiction for the Supreme Court district Numberg, which comprised the county court district, Nurnberg, Fuerth, Auberg, Ansbach, Regensburg, and Rielen in the Oberpfalz.
Q. What would you estimate is the geographical portion of Bavaria represented by the towns and counties that you have just enumerated.
A. Actually the Gau of Franconia was the smallest Gau within the organization of the Reich, but the court district Nuernberg was extended to two further Gau territories, namely, in Scheinfeld, Lower Franconia, and the district of Bayreuth/Oberpfalz, so that we would be entitled to say that north of the River Danube, besides the special court Bamberg with two subdivisions at Wuerzburg and Bayreuth, Nuernberg controlled at least half of the Bavarian share north of the River Danube.
Q. Dr. Feber, did the Special Court in Nuernberg ever sit in session outside of Nuernberg?
A. The Special Court Nuernberg, after Rothaug came into office, held sessions regularly in the county court districts, which were part of the special court area, and that was not only in the seats of the county courts, but if possible in the buildings of county courts in the most far distant corners of that area, for instance, where the special court sessions were held at Rothenburg on the River Tauber just as much as in the Bavarian Forest.
Q. Why did the Special Court Nuernberg travel to these far off towns and sit in session there?
A. Although there was a pronounced wish from witnesses and defense counsel that these far travels from places like Straubing or Weiden to Nuernberg should not have to be made, nevertheless, as years went by the fact became apparent that it was a question of political tendencies which were the cause for Rothaug to travel to these far removed parts. This is shown by the fact that in places like Cham, for instance, he got into touch with political leaders, such as Kreisleiters of the NSDAP, with whom he established the most personal type of contact, by which means he achieved propagandistic effects on his trips that, of course, could not have in Nuernberg. Tor instance, the circle of visitors who would come to sessions in Nuernberg would in no way be as well informed pertinently and factually as parts of the population in the flat country.
Q. A moment ago you mentioned Cham. I take it that that is a town in Bavaria. Is that so?
A. In Bavaria. That is Cham in the eastern territory, in the Bavarian woods.
Q. In 1939 do you remember a case over which the Special Court from Nuernberg president in Cham which involved a defendant named Schlamminger?
A. In this case, which concerned the case of Schlamminger et al, who had been accused - and incidentally I myself collaborated in this case as prosecutor - that for political reasons they had acted against a local police official and a locak teacher against whom they had made an attempt by means of a rifle.
Q. What do you mean, "political reasons"?
A. During this trial, during this case, particularly from amongst people who were politically interested in this case, and by that I mean the class of officers that came particularly, shots fired at night against the apartment of the Ortsgruppenleiter in the NSHA could be attributed to the fact that the people involved were feeling that they were under pressure by those sources and felt that they were politically prosecuted.
In order to have a law against such people and in order to have a law effected which would cover such perpetrations it was necessary to establish that the deed was due to political motives.
Q Dr. Feber, you have stated that Rothaug -- Did the Tribunal knock? You have stated that Rothaug took the Special Court from Nuremberg to sit in session in these various towns and areas which you enumerated. Did you ever accompany the court on those trips?
A Not just once, but often.
Q Then what did you observe was the impression from the bench that Rothaug sought to create in these trips to other towns?
A I have already stated during my introduction when I was talking about these journeys, that to begin with, the important point was that educational measures, political educational measures, should be effected on the spot. At least that was how Rothaug understood his activity as chairman during such outside sessions. The character of these so-called political educational measures became even more obvious, and even obvious to the people, because during such outside sessions, particularly at Neumarkt or Cham, most of all, Amberg, the Kreisleiter offices and the local group leaders ' offices were represented by their chief, and as Rothaug would put it, because the point was, and because he was aiming at it, that it should, be shown to these people on the spot that a sentence from the point of view of philosophy and based on the reasons of the NSDAP should be made palusible, or the people wouldn't understand it if just for having made some statement of some sort a comparatively high sentence was pronounced. Consequently he wanted it that the connections between the Special Court, particularly his activities in the party should become prominent. 1332
Q After the beginning of the war in September, 1939, while as you have stated, you were still Prosecutor before the Nuremberg Special Court, did you notice any change in Rothaug's attitude as a judge?
A If I were to be in Rothaug 's position in the Special Court, and if I were to imagine it at the moment when war broke out, then I would have to state that at that instant, at that moment he already had officially as well as based on the reactions outside of his official sphere that the laws based on the emergency situation only added to the means he already had in order to try out his work, as ho put it, in the interests of the political movement of the Party and on behalf of the mission. I should only like to say in this connection that at the beginning of the war he had been the chairman of the Court of the Assizes. He was President of the Special Court, and he was the President cf a penal court, a criminal court, when war came, laymen were removed from the juries, so that the jury court was dropped, the work transferred from his hands by his request to another lay member of the Party, and he retained for himself his work in the Special Court as being some such type of work within the war work which was going on. bar brought with it a wealth of laws and extentions of penalties, particularly the death penalty, which was made possible at the beginning, that is September 1939. he were, of course, concerned with a change of course of the Special Courts which both to the Special Court in general, but also as far as Rothaug's personality is concerned, got them the worst possible reputation.
Q After the passage in 1939 of these now laws in the field of criminal law that you have mentioned, did Rothaug ever voice an opinion to you about these new laws?
A Yes, official contact with Rothaug because I was returned from prison duties to prosecution duties and until the end of 1940 I was a prosecutor, thus being once again in a position to observe Rothaug and his attitude toward law, particularly the manner in which he handled them. And, on that occasion I remember as far as laws were concerned, particularly those decrees for the combating of enemies of the people, the law against special criminals and such, which at that time in 1939 when the war decrees appeared, he was favorably disposed toward them. For instance, he had the essential means at his disposal in order to proceed against criminals and the paracites of war crimes in the manner that was best. His inclinations were always toward the more severe and never toward the more mild handling.
Q Do you know the purpose of the law against undermining German defense (Wehrkraftzersetzung)?
A Yes, I know that.
Q What was the purpose of that law?
A That law which the prosecutor is referring to is in a special publication for laws of war emergencies, and is here concerned with a rule in paragraph 4 -- correction paragraph 5, which listed punishment for such persons who dodge the emergency calling up and those who evaded the armed service, which also included punishment for those who by either word-
Q (Interposing) May I interrupt. True, you are enumerating things which the law says on its fact, however, that is not the question I asked you; I asked you what the purpose was of that law? What did it seek to accomplish?
DR. KUBOSCHOK: I object to putting this question to the witness. The witness is not going to speak about facts, but he is going to produce an argument.
THE PRESIDENT: The objection made and the reason for it seems to the Court to be sound.
Q Dr. Feber, enumerate briefly the laws passed after the beginning of the war in 1939, that expanded the Special Court's jurisdiction in the criminal cases?
A Right at the beginning a number of laws were brought upon by the war, such as the war economy decrees, the decrees against a nation the decrees on the guilty criminals, keeping occupied at the beginning of war, and which gave cause that indictments were predominately made by tho Special Courts, exclusive jurisdictions for all Special Courts was not contained in these decrees in as far as in accordance with the severe criminal decree. Those were only to be brought before the Special Courts.
Q In these laws that were actually passed in 1939, that you have just mentioned, was the death penalty mandatory in any of them?
A The laws which I have just referred to, the death penalty is mandatory to a rather modest decree. The criminal and the public enemy had to be dealt with as for looting was concerned and as far as larceny was concerned, under paragraph 3. For this reason in accordance with all laws, the situation of the case was decisive. In other words in very serious cases, under paragraph 2 of the Public Enemy Code, it was left to the Tribunal whether they were to impose the death penalty or not.
Q In other words, with the exceptions that you made a moment ago, Rothaug was not forded to pronounce the death sentence under these statutes, is that true?
A Rothaug, as a matter of principle, was free to act with the Tribunal even when the death penalty was compulsory or the extent of it.
DR. KOESSL: Your Honor, I object to that question, and I move to have the question and answer stricken from the record because the testimony of this witness is not based on facts, but on a very general opinion, and even sufficiently limited in order to be called irrelevant.
THE PRESIDENT: It seems that the law to which we have access to indicate that this speaks for itself.