U.S. War Department
WAR CRIMES OFFICE
Judge Advocate General's Office
HEADQUARTERS EIGHTH ARMY
UNITED STATES OF AMERICA VS MASATO HADA
Review of the Staff Judge Advocate
1. The attached record of trial of Masato Hada at Yokohama, Japan, from 28 January 1947 to 3 February 1947, by a Military Commission appointed by paragraph 10, Special Orders No. 19, Headquarters Eighth Army, United States Army, dated 23 January 1947, having been referred to the Staff Judge Advocate, this review is submitted to the Commanding General.
Personal Data Concerning Accused
NAME: Masato Hada
RESIDENCE: Kyushu, Japan
MARITAL STATUS: Married
RELATIVES: Wife; children, but number not shown
EDUCATION: Primary school graduate
VOCATION: Locomotive repairman
MILITARY CAREER: Inducted in Army in August, 1942; highest rating Leading Private; received training as medical orderly; assigned Fukuoka Branch Camp No. 1, 1 December 1943.
DATE OF CONFINEMENT: 24 December 1945
DATE OF ARRAIGNMENT: 28 January 1947
PLACE OF TRIAL: Yokohama, Japan
PERIOD OF TRIAL: 28 January 1947 to 3 February 1947
DATE OF SENTENCE: 3 December 1947
SENTENCE: CHL for life
CLEMENCY RECOMMENDED BY COMMISSION: No
2. Synopsis of Charges, Pleas, Findings, Legal Sufficiency and Sentences:
3. Summary of the Evidence:
a. For the Prosecution:
As to Specification 1: Capt. Harm Ensing, a Dutch medical officer and a doctor in the camp, stated that on 16 November 1944, he requested sulfadiazine powder for a Dutch patient and Japanese Dr. Kendo ordered additional issuance of two grams and three doses of one gram every six hours. Accused, in charge of the medical stores, was issuing a smaller dosage and refused to issue additional amounts until the following morning, whereupon witness spoke to Dr. Kendo who reprimanded the accused. Accused became very resentful and after dinner witness was summoned to the dispensary and he was beaten by accused and Hashimoto. "I was beaten horribly on my back, buttocks and legs. At last I declared I could stand it no longer but still they were going on. My muscles were all bruised and the skin was discolored on buttocks and legs. I fainted during roll call parade that night and for days I was walking with the utmost difficulty." (PX 5).
(PX 10, J. F. de Wijn, a Dutch medical officer and PW Doctor) Sometimes Captain Ensing got a thrashing for complaining about accused's delay in filling prescriptions.
As to Specification 2: (PX 1, Jack Wolf, American civilian) Accused had charge of the pharmacy. He would tear up prescriptions and never issue medicine to you. Many men had died.
(PX 4, Samuel Swift, American civilian) Our medical privileges were further abused when the male nurse tore up prescriptions given for the prisoners by Dr. Kostecki.
(PX 6, Capt. William Wallace, British medical officer and PW doctor) Accused would not issue prescriptions advised by the PW medical officer although the drugs were under his care, and by his refusal he was directly responsible for the deaths of many men.
(PX 7, Frederick Chilton, British PW) Accused frequently used to tear up medical prescriptions sent to him by the four Allied camp doctors although the drugs were available, and I consider he was directly responsible for the deaths of many men through these actions.
(PX 8, Colonel William D. North, American PW) When the Japanese doctor would prescribe medicine, accused would delay filling prescriptions and issuing the medicine.
(PX 10, Jan F. de Wijn) When Japanese doctor prescribed certain medicine, due to the accused it generally took two or three day before these were obtained.
(PX 11, Peter French, British Sergeant) On one occasion I heard Captain Wallace of the R.M.C. ask accused for a supply of sulfa powder. Accused refused to give him any of the powder.
(PX 2, Major Walter Kostecki, American medical officer and PW doctor) Accused called upon him to identify specific items of Red Cross medical supplies but these were at no time issued to him or other prisoners. The doctor-prisoners pooled their own funds and gave sums to the accused with which he procured required medicines. In addition, he paid accused from ten to thirty yen per month out of his own pocket to fill his prescriptions more quickly. Before and even after this arrangement accused made it a practice to tear up a number of prescriptions daily. In June and July of 1944 accused went through Kostecki's pile of prescriptions and tore them up at will, many times acting the part of the medical authority who felt that certain items were not necessary. He saw medical, surgical, and dental items stored by the Japanese. When he requested any of these items, request was refused. Such requests went through accused.
As to Specification 3: (PX 2, Kostecki) Accompanied accused to Fukuoka in one instance and acted as carrier of cans of Red Cross milk. Another time saw accused gorging himself on Red Cross food items in plain view of prisoners of war at the camp.
(PX 9, Harry Lucas, British Sergeant) Red Cross food was stolen by the accused.
(PX 10, de Wijn) Accused stole considerable amounts of Red Cross articles intended for the prisoners of war which were in his charge. When PW's took charge, of 112 tins of milk only 57 remained. There was also a shortage of tins of cheese or butter. Saw with his own eyes the accused's consumption of these articles.
(PX 11, French) The accused was in charge of Red Cross supplies at this camp and withheld their distribution to the prisoners.
As to Specification 4: (PX 1, Jack Wolf) Well and sick men were forced to exercise at the end of the day. If they could not carry on for thirty minutes, accused would walk around with a large stick and beat them black and blue. Many sick men died due to these punishments. Some men were forced by accused to stand in the sun holding a bucket of water over their heads with their arms extended for hours.
(PX 2, Kostecki) Prisoners of war, including patients in the hospital that were able to get up, were required to do calisthenics under accused's direction, he making the decision as to which patients were able to exercise, overruling the PW doctor's opinion. Accused would beat those exercising with a long bamboo replica of a Samurai sword about their heads, legs, and bodies.
Beatings were administered many times to weak and seriously ill prisoners. Weaker prisoners of war were required by accused to run around the compound until they fell exhausted. These calisthenics were a contributing factor in the death of some of the prisoners.
(PX 6, Wallace) Accused forced six patients to perform strenuous physical exercises with the result that three died. He beat sick men with bamboo poles on many occasions.
(PX 7, Chilton) On one occasion he remembers accused ordering sick men from the hospital to take part in physical exercises ordered for the rest of the camp, which exercises were quite strenuous and some of these patients were old men between fifty and sixty, some with hernias.
(PX 8, North) One morning at roll call without provocation he was selected out of about 800 men and given a "good slapping" by the accused.
(PX 10, de Wijn) Accused behaved inhumanly to the sick. If seven sick men turned up for examination he would consider that too many and would beat or kick three or four back to work. He hit patients at random with a cudgel and often forced sick prisoners to take part in gymnastics in the morning although they were obviously unfit, however, none of these caused any deaths. Although a doctor, he was forced to clean water closets and do washing up, although there were sufficient male nurses.
(PX 20, James Carey, American Sergeant) Accused beat, stomped upon and kicked him when he attempted to get Williams, another PW, admitted to the hospital.
(PX 21, Tanoue Kinzo, Japanese clerical employee at the camp) On several occasions saw accused giving exercises to the prisoners of war and saw prisoners forced to hold buckets of water over their head for long periods of time; also, saw accused striking these prisoners during the exercises with a cane.
As to additional Specification 1: (PX 20, Carey) On or about 10 March 1945 he had a temperature of 104 degrees and for three days tried to get accused to admit him to the hospital. This was refused, and he had to work loading and unloading boxcars. On the third day he collapsed at work and had to be carried to the hospital by some of the other prisoners.
As to Additional Specifications 2, 3, 4, 5 and 8: (PX 2, Kostecki) "In my opinion these calisthenics required of the prisoners, directed by Masato HADA and sometimes witnessed by the commanding officer, Yuhichi SAKAMOTO, were a contributing factor in the death of some of the prisoners. The weaker prisoners who were subjected to these brutal calisthenics and who later died included the following Americans: G. W. Lohman, U. S. Navy, Fernandina, Florida; Hank Gottlieb and Peter W. Hansen, both civilians, prisoners taken by the Japanese at Wake Island. All of these men after a series of these daily calisthenics became so sick that it was impossible for them to stand it any longer. They were held in the hospital a short period of time, in some cases a week, and then died. Some Englishmen who died under the same circumstances were as follows: Trooper T. Hustwick, 7877969, Wallingford, England, who died 2 August 1945; Gunner J. Dickens, 1700323, of Rushden, Northampton, England, who died February 9, 1945; Gunner A. T. Lyalle, 18333000, of Bristol, England, who died January 22, 1945; and also one Australian, S Sgt P. A. Sims, NX-50743 of New South Wales, Australia, who died July 28, 1945."
As to Additional Specification 6: (PX 20, Carey) He and Hustwick were good friends, working together at the supply depot. In May or June 1945 a train with soy bean oil came in and prisoners stole portions thereof to put in their food. Hustwick and fourteen others were apprehended in the act and they were all beaten and confined in the guardhouse for about a week. When he came out of the guardhouse he was in bad condition and some other prisoners took Hustwick to the dispensary. They were met there by accused and he refused to give Hustwick any treatment. He struck Hustwick several times across the face with a small riding crop. He had to go back to work and did so all day. He had to be carried back to camp that night and was put in the hospital and died the following morning. His death was due to the beating he received, his starvation in the guardhouse, and the fact that the accused refused to have him admitted to the hospital.
(PX 2, Kostecki) Accused forced Hustwick to engage in calisthenics while possessing symptoms of dizziness and fainting; that these calisthenics were a definite factor in causing his death three days later.
As to Additional Specification 7: See Additional Specification 2, above:
Accused was responsible for physical training in the camp. During the winter months, December 1944 through February 1945, witness and other prisoners had to have physical training daily. Simms was suffering from chills in the stomach and told accused he was ill, but accused told him to go to parade, and as Simms made his way to the parade ground accused started to bash him with a stick. Simms was unable to do physical training and on numerous subsequent occasions he was bashed for not being able to perform. About six weeks after the first bashing he went to the hospital with beriberi and did not recover. (PX 11, French).
As to Additional Specification 9: (PX 20, Carey) Witness lived in the same barracks with Williams who died about the first of the year in 1945. Williams had badly swollen legs and Carey and other prisoners helped him over to the dispensary to get him admitted to the hospital. Accused struck Williams several times in the face with his fists, knocked him to the ground, and then stomped and kicked him with his hobnailed shoes. Accused also struck the witness with his fists and kicked him and stomped upon him. Williams had to be helped back to the barracks. The following day he and a group of other prisoners went back to the dispensary and begged accused to admit Williams to the hospital as they knew Williams was dying. Accused cursed them and refused admission. On the third day they went to the dispensary again and accused again flew into a rage, but a Japanese doctor happened to come in at that time and he admitted Williams to the hospital, but it was too late to save his life. Williams was admitted to the hospital at 7 P.M. and died at 11 P.M. the same night.
b. For the Defense:
Yuhichi Sakamoto, serving a life sentence, testified under oath. He was commandant of the camp involved from 1 January 1943 to 7 May 1945. Medical section of the camp was in charge of the Japanese medical officer, next in command being a Japanese medical NCO, and under him a Japanese medical orderly. He knows the accused, who arrived in October or November 1943 and who was there up until the time the witness left in May 1945. Accused worked in the camp as medical orderly. Relative to the procedure of admission of a prisoner into the dispensary or hospital, the prisoner of war NCO living nearest to the prospective patient was to be first informed. He then contacted the accused at the dispensary and had the patient examined by the Japanese medical officer, who would diagnose and decide upon the nature of treatment, giving this information to the prisoner of war NCO. Allied prisoner of war medical officers cooperated and examined patients together. Accused had no authority to issue medicine when requested by a prisoner of war doctor. During accused's tour of duty he sometimes was the only orderly. At other times there were one and sometimes two other orderlies. Accused did not have authority to admit or discharge patients from the hospital. He conducted physical exercises, the patients participating being those who were passed by the medical officer, accused not having anything to say concerning which patients were or were not to be exercised. Whenever witness was present at exercises, he never saw the accused strike a prisoner, nor were any reports made to him that such had occurred. Witness never saw prisoners standing, holding buckets of water over their head. No complaints were made that accused tore up prescriptions. Accused was diligent and worked for the sake of the prisoners. Witness knows Kostecki, but it is not true wherein Kostecki stated that the witness saw accused beating prisoners or condoned it. No Dutch doctor ever complained to the witness that accused had beaten him (R. 57-61). Upon questioning by the Commission the witness stated that the duties of accused as medical orderly were under orders of the medical officer--the giving of medicine to patients and filling out of prescription slips, that only the medical officer had authority to transfer patients from the dispensary to the hospital and accused was never delegated that authority (R. 66-67).
Tozo Maekawa, a doctor by profession, commissioned in the Japanese Army in 1942, was on duty at the camp involved for about two and one-half months from February through April, 1944 (R. 75). Accused was one of his assistants aiding in the examinations of patients, such as procuring instruments, medicines, the filling out of diagnosis reports and prescription slips at the order of the witness. Accused had no authority on his own initiative to admit patients to, or discharge them from the hospital. When a prisoner of war doctor requested medicine, the witness was first contacted and if he acquiesced, the prescription would be filled. If the witness was absent, the prisoner of war doctor requested directly to the NCO or, in his absence, accused would comply with the request (R. 69-70). Accused did not speak English, and prescriptions written in English would have to be translated. There was a shortage of medicines in the camp and accused would sometimes go to Fukuoka to attempt to get some. During witness' tour of duty, prisoners were not exercised (R. 73). Red Cross and all medical supplies were all used at all times. No prisoners died while the witness was stationed at the camp (R. 81).
Kazuo Danno, a doctor by profession, was stationed at the camp from the latter part of February 1945 until 15 May 1945, being in charge of medical matters Accused was one of his subordinates, his immediate superior being Sergeant. Kiyohara, who was the NCO in charge of the medical department. During witness' stay at the camp accused did not have much to do with medical matters, performing liaison work between this camp and the Main Camp; was away from the camp for the entire morning every day. In addition, he also took the dental patients to Fukuoka every other day. Sick call was held about nine or ten in the morning. Prisoner of war doctors would examine first, then witness and Allied doctor would confer. If medicine was deemed necessary, the prisoner of war doctor filled out the prescription in English or Latin by means of symbols. Witness would translate into Japanese and give the prescription to the medical orderly, and the orderly would issue the medicine. Accused did not have authority to fill prescriptions, issue medicine or equipment without permission of one of his superiors. Accused had no authority to admit patients or discharge them from the hospital. Witness never saw accused tear up requests or prescriptions for medicines; never heard of it, nor was it ever reported to him. Prisoners did not exercise or do calisthenics until about April when the weather warmed, and started so doing of their own volition, under the leadership of a prisoner of war medical orderly. He never saw accused strike or beat a prisoner nor was such ever reported to him. He signed death certificates and ascertained the cause of death stated by the Allied doctors, and what appears on the death certificates signed by him reflects the actual cause of death (R 83-86). He never saw prisoners exercising on cold days nor did he ever see accused leading exercises (R 91). Between 12 February and 21 March 1945 he never saw hospital patients being exercised (R 96).
Hiroshi Nobe, the next witness, became a member of the Japanese Army in June 1943 and was assigned to the camp involved on 17 April 1944 as Pfc doing office liaison work, carrying documents from this camp to Fukuoka Main Camp. He remained at the camp for about one year and knew accused from July until August 1944. Accused conducted exercises for about fifteen minutes about nine each morning when the weather was good. The exercise grounds were located near where he passed and therefore he could see the patients engaging in calisthenics. He never saw accused strike or beat any prisoners nor did he ever see prisoners holding buckets of water over their heads. (R 100-102).
Testimony given by Dr. Kanda, from the Sakamoto Case, Docket No. 10, was read into the record by the defense. While witness was at the camp, death certificates were made out by himself and one of the prisoner of war doctors, the true cause of death being therein inserted. No prisoner of war doctor was compelled to sign a false certificate. He knew the accused, who had charge of medicine. Accused prepared the prescriptions under the doctor's instructions and, in conjunction with the prisoner of war medic, he gave it to patients. Witness stated he never ordered accused to tear up prescriptions, never saw him tear up prescriptions, nor did any of the prisoners complain to him relative to the accused tearing up prescriptions; never saw accused strike any patients or force them to hold buckets of water over their heads (R 103-104).
Accused, Masato Hada, testified under oath, and stated that he was assigned to the camp from 1 December 1943 to 30 April 1945 (R 10); received training in two Army schools as a medical orderly. When he was assigned to the camp there were about 250 prisoners. The dispensary and hospital were housed in two separate buildings. The dispensary was separated into an examination room, a treatment room and an office. Medical supplies were kept in the dispensary. The hospital at the camp was used for less seriously ill patients, those more seriously ill being sent to the Army hospital in Fukuoka City. When prisoners required dental care he took them to a local dentist in Fukuoka (R 110-112). Accused worked under the authority of the medical officer and the medical NCO, never having authority while at the camp to fill prescriptions without his superior so ordering him to do (R 115). Accused never refused to fill a prescription which had been authorized by his NCO or medical orderly. If a request for medicine which was not in stock was received, he so informed the medical officer and would go to Fukuoka City to try to buy the medicine requested, and in such cases there would necessarily be a delay in filling the prescription. It was this that was referred to in the affidavits made by the various prisoners relative to their complaints that he would delay the filling of prescriptions. The delay was caused by the necessity of his going to the city to procure the medicine. Supplies of medicine on hand were inadequate (R 115-116). He did not have authority to admit prisoners to, or discharge them from the hospital, nor did he have authority to, nor did he ever overrule, the medical diagnosis of either a prison doctor or a Japanese doctor (R. 117). He cannot speak or read English or Latin. Allied medical officers wrote out requests for prescriptions on memo paper. Accused would then take such requests to the medical officer. Symbols were used for ordinary medicine, such as aspirin or stomach medicine. At no time was he authorized nor did he fill prescriptions nor give out medicines or medical equipment without direct authority of the medical officer (R 118). He conducted calisthenics during August or September 1944, usually from 7:00 or 7:30 in the morning about twenty minutes of exercise being given, the type thereof being of the kind broadcast over the radio, that is light exercises, the flexing of legs and arms, neck exercises, and bending of the body. He carried a "shinai", a stick used for fencing, once or twice while conducting exercises. He led exercises for about two months and carried the "shinai" only once or twice. The exercises were carried out by order of the medical officer, and not of his own volition. The prisoners who exercised were all healthy. He never forced patients to leave their beds in the hospital and go out and exercise. He used his "shinai" to push the prisoners of war in the back lightly to caution them, and never struck a prisoner of war with it. Only once, when a prisoner of war was late for exercises, did he make him hold a bucket half full of water over his head for about thirty minutes (R 119-121). Later, accused stated, upon questioning by the Commission, that he had caused two prisoners of war to hold buckets in the above manner because they were late (R 135). He struck Captain Ensing because he had complained to the medical officer that accused had not given him medicine, the accused being away at the time at the local pharmacy buying medicine. He struck Ensing with a celluloid stick about a foot long, hitting him four to five times on the shoulders. He never struck him in the face nor was Ensing knocked to the floor, nor did he suffer any ill after-effects (R 122-124, 139). He never struck Colonel North (as he states in his affidavit, PX 8) (R 122-124). He never attended a roll call. At the time he took Kostecki to Fukuoka with him he had him carry a milk can but this can contained tobacco for the personnel at the dental office. He never had Kostecki carry cans of Red Cross milk for disposal in the city (R 125). In January 1945 Colonel Saunders, the senior Prisoner of war officer, issued to the Japanese of the camp Red Cross supplies consisting of milk, tobacco, chocolate, raisins, and cheese or butter . This was the only Red Cross food he ever ate and other people saw him eat this food (R 126-127). He never had a secret fund with Kostecki for procuring medicines. Whenever Kostecki wanted medicines, he bought same for him and returned to him the balance of the money (R 128).
Upon the commencement of the trial, the charge and existing specifications were amended and the following additional specifications inserted, Defense Counsel stating that he had advised the accused of these amended and additional specifications (R 5).
Charge: Date changed from 1 May to 31 August. (The date in the charge is 1 May, however, the prosecution (R 5) erroneously stated "The date was changed from 31 March to 31 August in the charge.")
Specification 2: 31 March changed to 31 August. Words, "further injuring their health" deleted and there were substituted therefor the words, "contributing to the death of many of them".
Specifications 3 and 4: 31 March changed to 31 August.
Additional Specifications 1 to 9, inclusive, added.
The commission was constituted by proper authority and had jurisdiction of the accused and of the offenses alleged. There is no evidence that the accused was not sane on the occasions of the commission of the offenses alleged or at the time of trial.
The very able brief filed by the defense and reply thereto by the prosecution have been carefully considered, together with the points raised in the trial. It is concluded that no ruling of the commission adversely affected the rights of the accused.
It has been previously held that a commission has jurisdiction to try Japanese for offenses against Allied prisoners of war (US vs Yanaru, Case No. 184). Likewise, the reviewing authority has upheld the validity of the so-called "omnibus" specification. In U.S. vs Hashimoto (Case No. 168) it was stated:
"The Review Authority has heretofore held "omnibus" specifications in these cases were sufficient to give the Commissions jurisdiction to try the cases (Case No. 54, U.S.A. vs. Shiozawa, App. by Com. Gen.; Case No. 70, U.S.A. vs. Ogimoto, App. by Comm. Gen.; Case No. 84, U.S.A. vs. Yanaru, App. by Com. Gen.). If, because of the generality of the specification, the accused needs more specific information to adequately prepare his defense, he should apply for same by motion for a Bill of Particulars. (Billingsley vs. U.S., 16 Fed. 2nd 754; Rinker vs. U.S. 151 Fed 755).
However, in support of the "omnibus" specification, no evidence of the specific event, described in another specification should be considered (U.S. vs Nichizawa, Case No. 46).
The reviewing authority has likewise heretofore upheld the allegation in a specification that conduct of an accused "contributed to the death" of a prisoner of war. This phrase has been defined in U.S. vs Kaneko (Case No. 76), wherein it was said:
"One who inflicts an injury on another is deemed by the law to be guilty of homicide if the injury contributes mediately or immediately to the death of such other. The fact that other causes contribute to the death does not relieve the actor of responsibility, provided such other causes are not the proximate cause of the death. Criminal responsibility for inflicting an injury which is the efficient cause of death is not lessened merely because the predisposed physical condition of the decedent, without which the blow or wound would not have to be fatal....... If, at the moment of death, it can be said that both injuries are contributing thereto, the responsibility rests on both actors. In such cases, the law does not measure the effects of the several injuries in order to determine which is the more serious, and which contributes in the greater measure to bring about the death." 26 Am. Jur., Sect. 48, P. 191, 192
In the U.S. vs Nichizawa (Case No. 46), the addenda by the Judge Advocate states:
"It is apparent that asserting that one has directly and proximately contributed to an homicide produces the same legal result as alleging that he has directly and proximately caused the death. War Crimes concepts are not concerned with such over-legalistic niceties as the defense urges on this point, but only with the fundamental and fair protection that civilized nations demand for those accused of crime."
The reviewing authority has also ruled against the contention that misappropriation of Red Cross supplies does not constitute a war crime, it being stated in U.S. vs Yanaru (Case No. 84):
"It is contended that theft of Red Cross supplies or food supplies furnished by the Japanese Government is not a crime against the laws and customs of war unless the effect is substantially injurious to the prisoners of war (P. 30).
The defense contends that the introduction of testimony of the accused when a witness in the Sakamoto Case (No. 10) was fatal error, since it appears that in said case accused was not informed of his rights against self-incrimination, citing in support of its contention U.S. vs Namba (Case No. 149, Re-Trial):
Prosecution introduced this testimony in support of its case (R 36 40). The accused elected to testify in his own behalf and the testimony introduced by the prosecution was utilized to attack the credibility of the accused (R 128-135). It is familiar law that a defendant in a criminal case who voluntarily testifies in his own behalf waives completely his privilege against self-incrimination (Raffel vs U.S., 271 U.S. 494; Powers vs U.S., 223 U. S. 303; Vierick vs U. S. 139 Fed. 2d 847).
As to Specification 1: There is ample evidence to sustain the finding of guilty of this specification. The accused admitted the assault (R 122-124, 139) and whether he or Hashimoto was the principal perpetrator thereof is immaterial, for both were particeps criminis. "The gravamen of the offense is the assault and the common design renders all of the assaulting participants equally guilty" (6 C.J.S., Sec. 101, P. 959).
As to Specification 2: It is not considered that the evidence is sufficient as to that portion of the specification whereby it is alleged that the wrongful conduct resulted in the "contributing to the death of many of them." As previously stated, such an allegation has the same legal result as alleging that accused directly and proximately caused the deaths, (U. S. vs Nichizawa, supra) a grave charge requiring substantial evidence in support thereof. While the commission rightly found, on the basis of the evidence in the record, that accused was guilty of a willful and unlawful withholding and refusal, it being for the commission to determine who to believe as to the control over the issuance of medical supplies, there is a striking paucity of such a deprivation contributing to deaths. It should require no citation of authority for the proposition that whether or not deprivation of medical supplies contributed to death is a topic that laymen under ordinary experience are incapable of acquiring knowledge and forming opinions, and that such requires evidence by those learned in the field of medicine. The statement of Wolf (PX 1) reveals that he was a hut commander in the camp and fails to reveal any medical background whatsoever. He was on Wake Island at the time of capture and it can be inferred that his work was in administrative or construction fields. Likewise, the affidavit of Chilton (PX 7) reveals that he was a Lance Bombardier in the Royal Artillery. Neither of these men were qualified to state that the actions of the accused in this specification contributed to deaths and their testimony should have been totally disregarded by the commission. It is true that Wallace (PX 6) was a medical officer and he states that by the refusal of accused to issue drugs, "He was directly responsible for the deaths of many men", however, little, if any, credence should have been placed thereon. He does not mention a single patient or incident, and most significantly, the statement of Kostecki (PX 2), also a doctor, which is most comprehensive, is completely silent in this regard; as were also the statements of the other two doctors, de Wijn (PX 10) and Ensing(PX 5).
Proof beyond a reasonable doubt is such proof as precludes every reasonable hypothesis except that which it tends to support. It is, accordingly, recommended that those words following "suffering" in this specification be stricken.
As to Specification 3: The testimony of Colonel Beecher (PX 3) was valueless and should have been disregarded. However, Kostecki (PX 2), Lucas (PX 9), and de Wijn (PX 10) all mention accused by name and there is ample evidence to support the finding of guilty.
As to Specification 4: As above stated, in the case of "omnibus" specifications no evidence of a specific event described in another specification should be considered (U.S. vs Nichizawa, Case No. 46).
Kostecki (PX 2) states that the calisthenics were a contributing factor in the death of some of the prisoners and he then proceeds to name those prisoners who are the subject matter of the additional specifications herein. Wallace (PX 6) states that three men died as a result of strenuous exercises. He mentions no names, however, and since he was a fellow physician of Kostecki, it can reasonably be inferred that these three deceased are included among those named by Kostecki, and named in the additional specifications. De Wijn (PX 10), another doctor, explicitly states that none of the exercises caused deaths; and see statement of Colonel Beecher (PX 3). Accordingly, while the evidence is sufficient to sustain the finding of guilty relative to the mistreatment and abuse alleged, it is not believed to be sufficient, and it was erroneously found by the commission to have resulted in the "contributing to the death of a number of them". Those quoted words should be stricken. The duplication involved herein is contrary to good practice and should be avoided.
As to Additional Specifications 1 to 8, inclusive: One uncorroborated affidavit may be sufficient to support a specification. It rests with the commission, as a fact-finding body, to determine the credibility thereof, and the commission may, if it so chooses, base a finding of guilty thereon (U. S. vs Takahashi et al, Case No. 91) Kostecki, a doctor, engaged in ministering to PW patients, was fully qualified by background, training, and experience to give his conclusions as to the contributing factors. Accused and witnesses in his behalf testified that accused had no authority to decide upon the prisoners of war to be exercised (R 59-60, 120). Kostecki states that accused "made the decision as to which patients were able to get up from their beds and engage in the exercises". It was for the commission to determine who to believe, not only with reference to the foregoing, but also relative to the authority of accused in admitting patients into the hospital and in discharging them therefrom.
As to Additional Specification 9: As the defense points out (Brief, p 36) evidence by Carey (PX 20) as to his opinion of the cause of death was ordered stricken by the commission, and properly so. As to this specification the record is barren of testimony stating that accused contributed to William's death. For the reason set forth in the discussion of Specification Two, above, it is here likewise recommended that the words following "sick" be stricken. As to the remainder, it was within the commission's province to base a finding of guilt on one statement, said statement being rendered by one in a position to know the facts, an eyewitness.
In conclusion, it is desired to state that lay witnesses are incompetent to render an opinion as to cause of death (or contributing thereto) in the absence of special study, knowledge or experience.
In the addenda by the Judge Advocate in U. S. vs Takagi, Case #170, the following is stated: "The test as to whether expert medical testimony is required is whether the matter involved is within the common experience and knowledge of a reasonable person. If it is, no medical expert is needed. The law employs common sense and is not more important than an ordinary reasonable person. In measuring the proof in the instant case, the standards of reasonable knowledge of an ordinarily reasonable and intelligent person and the common experience of mankind are employed. To do otherwise would be to throw away reason and to bring the law and justice into disrepute."
As an abstract statement, the foregoing is undoubtedly true. However, testimony as to cause of death (or contributing thereto) that is, medical matters, is beyond the common experience and knowledge of a reasonable person. (22 CJ sec 640, p 545). This is not akin to the situation where a lay witness testifies as to a person appearing ill, looked pale, was suffering, etc. These deal with external appearance and not the "internal actuality" that latter of which, involved here, requires a medical expert (Wigmore, secs 658, 1975).
Lay testimony permitted to be introduced in this case was the type which, according to human experience, is unreliable, of no probative value and should have been disregarded by the commission. In Jordan vs Glickman (N.C.) 14 SE (2) 40, it was held that a boy's mother could not testify that in her opinion his death was caused by injury sustained in a collision with an automobile (from 32 CJS sec 480, p 135, and see Anno: 136 ALR 965). Findings of guilty of contributing to deaths of "many of them", "a number of them" based upon statements of lay witnesses such as "Many men had died" (PX 1). "I consider he was responsible for the deaths of many men," by a Lance Bombardier (PX 7), particularly in a case where four doctors testified for the prosecution, would result, to advert to the foregoing addenda by the Judge Advocate, "to throw away reason and to bring the law and justice into disrepute."
The complete record shows that accused had a fair trial and that he was well represented by competent counsel. He took the stand and testified in his own behalf. A careful scrutiny of the entire record fails to reveal any error which injuriously affected the rights of the accused or any failure to accord him a fair trial. The record is legally sufficient to support the findings of the commission, except as hereinabove discussed.
5. Recommendations: The commission sentenced the accused to confinement at hard labor for life. The sentence is legal.
However, since the commission erroneously found that, for all ostensible purposes, the accused "contributed" to the death of practically every weak or ill decedent whom he exercised or deprived of medical supplies, a sentence of 20 years would be more compatible with the ends of justice.
In consonance with the foregoing opinion, the following deletions in the specifications are recommended:--
Specification 2: Delete the words following "suffering".
Specification 4: Delete the words following "pain".
Additional Specification 9: Delete the words following "sick".
Accused was confined 24 December 1945, went to trial 28 January 1947, and was sentenced on 3 February 1947. Pursuant to established policy, it is recommended that ten and one-half (10 ) months of the sentence imposed be remitted. Sugamo Prison, Tokyo, Honshu, Japan, is the appropriate place of confinement.
Attached is a form of Action designed to effectuate the foregoing recommendations.
I concur in general except as hereafter mentioned.
Overlapping allegations appear as between Specification 4 and additional specifications 2-8 inclusive with reference to deaths of prisoners. The finding of guilty as to Specification 4 insofar as it concerns the allegations of contributing to deaths should be disapproved as duplication.
The charge of contributing to the deaths of prisoners (directly and proximately contributing) laid under additional specifications 2, 3, 4, 5, and 8 is established by the evidence in the case including medical evidence from sources qualified by experience and observation to have knowledge of the facts at issue. A summarization of this evidence appears at page 5 of the foregoing review under the heading for Specifications 2, 3, 4, 5, and 8.
The proof of the allegations under Specification 2 is adequate. This evidence including the statement of a physician is summarized on page 3 and at the top of page 4 of the foregoing review. It must be remarked generally that the evidence of non-medical witnesses as to the apparent fatal effect of mistreatments need not necessarily be disregarded if the surrounding facts indicate that it has probative value to a reasonable person. It may well be of such character as to be sufficient upon which to base a proper finding that wrongful actions were the direct and proximate cause of death. For examples and instances, compare those referred to in the review of U.S. versus Nichizawa, Case Docket 46 and U.S. versus Murakami, Case Docket 55, page 45. From the review in the latter case, the following is quoted:
"A reasonable person not possessing specialized medical knowledge but employing only that common knowledge with which all reasonable persons are endowed would be able to determine beyond a reasonable doubt from the evidence properly admitted that the deaths mentioned above directly and proximately resulted from acts charged in which the respective accused were participants. Although death resulted from a combination of causes, it is plain that the acts charged were efficient producing ones which directly and proximately caused the fatalities. ***It is common knowledge that forcing persons in the physical condition of those prisoners mentioned *** to do manual labor would be likely to result in such an aggravation of their sickness as to produce death. In the case of ***, it is clear that his recovery was halted and his demise precipitated by an arbitrary and willful withdrawal of vitally needed available food. In the case of ***, the callous disregard of his compelling need of treatment added to his enforced employment for a period undoubtedly accelerated his death"
See also the review, U. S. versus Takagi, page 18, Case Docket No. 170 cited in the foregoing review in the instant case.
The review by the Board of Review in the office of Brigadier General Franklin P. Shaw, Judge Advocate, Far East Command, in U.S. versus Nakajima, Case Docket 128 contains the following pertinent discussion:
"The evidence is legally sufficient to sustain the Commission's findings of guilty *** (several death sentences). Teas's death was proximately caused by a deliberate, brutal and demoniacal course of conduct which included repeated inhumane beatings and abuses over a period of time, personally administered by the four accused *** and when the victim was in a weakened physical state caused by malnutrition and disease. That the resulting death *** was foreseeable and intended was obvious from the course of conduct described by the evidence. *** the deaths of Burks, Francis (etc) *** follow in the pattern of Teas's death. Each of the accused *** participated in one or more vicious beatings of the victims as alleged with the deaths following soon thereafter without independent intervening causation."
The following is quoted from the review of the Staff Judge Advocate, 8th Army in the above case 128, page 43: "Careful examination of the facts*** compels a view that certain deaths *** were directly and proximately caused by the mistreatment *** alleged. In considering the proof, the law does not restrict itself to such refinements of proof as would make the proper accomplishment of justice impossible. It does not throw away its own common sense. It retains and uses the knowledge that ordinary reasonable persons have. It utilized the common experience of mankind. To do otherwise would justify the charge of the Dickens character when he said: 'The law is a idiot, a ass.' In cases in which a death occurs from a cause which cannot be determined by use of the above reasonable tests of common experience and common knowledge of mankind, expert testimony to aid the court is ordinarily required; otherwise it is not. '*** where the facts are sufficient that they can be place before and understood by the jury, and where there are such matters of common observation and experience that the jurors are just as competent to draw inferences therefrom as the witness, there is no necessity for receiving the opinion of either an ordinary or a skilled witness ***'. (23 CJS Section 858 pp 64,67, citing cases from 21 States)."
With respect to Specification 9, it is believed that the proof was adequate to support the finding of guilty. The evidence by a Staff Sergeant of the United States Army (Ex 20, page 2) was as follows:
"Williams was suffering from malnutrition, his legs were badly swollen and he was unable to get around by himself. I believe Williams had taken pneumonia. Several other prisoners and myself helped Williams over to the medical dispensary at the camp in order to get him admitted to the hospital. When we got to the dispensary, we told HADA that we wanted to get Williams admitted to the hospital. HADA flew into a rage and struck Williams several times in the face with his fists. HADA knocked Williams to the ground and then stomped and kicked Williams with his hobnail shoes. HADA then turned and struck me in the face with his fists and kicked me. When he kicked me, I was knocked down and then Hada stomped and kicked me. Both Williams and I had to be helped back to the barracks by the other prisoners that were with us. The next day a group of we prisoners went back to the dispensary and begged Hada to admit Williams to the hospital as we knew Williams was dying. Hada cursed us and refused to admit Williams to the hospital and slapped one of the other prisoners several times in the face. On the third day another group of prisoners and myself went to the dispensary to try and get Hada to admit Williams to the hospital. Hada again flew into rage but a Japanese doctor happened to come in at that time and he admitted Williams to the hospital but it was too late to save his life. Williams was admitted to the hospital at 7:00 PM and died at 11:00 PM the same night. I was present on all three days when we tried to get Williams into the hospital and saw what happened."
Evidence like this requires no expert to establish that the cause of death were the wrongful actions of the accused as alleged.
It is apparent from the foregoing that the Commission was extremely lenient in assessing only life imprisonment in the face of a clear record of direct responsibility on accused's part for the deaths of many prisoners.
To summarize, it is recommended that the findings be approved less that part of Specification 4 which relates to contributing to the death of a prisoner; it is recommended that the sentence of imprisonment for life at hard labor be approved. A proposed action to implement these recommendations is attached.
(Orginal microfilm images in PDF file for Hada, from page 9 -- NARA Record Group 331)