Defendant: Kimura, Yasushi, Civilian Guard, Omori PW Camp

Docket No./ Date: 50/51/ July 20-23, 1946, Yokohama, Japan

Charge: Violation of the Laws and Customs of War: 1. Did willfully and unlawfully mistreat, abuse and torture American PWs.

Specifications: beatings using rifle butts, barrel of a gun, hands, fists, hob-nailed shoes, pliers; forcing PWs to strike each other, torture

Verdict: 5 years CHL

Reviewing Authority's Recommendations: Accused was a civilian guard known as "Horse Face." Accused had told others in the PW camp that he had beat prisoners for not working. Accused was the individual responsible for the beatings, mistreatment and torture of individuals for infractions such as stealing, suspicion of stealing and doing something other than what they were supposed to be doing.

Reviewing Authority: Denied all the specifications. However, on several occasions, accused beat prisoners by direct order of a higher ranked officer: he had no right to punish a prisoner unless ordered by a higher officer. One several occasions, he admitted striking or slapping individuals for stealing but not hard and not many times: he knows he should not have done this without orders from superiors. He looked after the welfare of the prisoners, even so far as to risk getting punished by his superiors.

Prosecution Arguments: The record is legally sufficient to support the findings. The evidence supports the findings. The Prosecution "introduced testimony by means of sworn statements of prisoners who had been interned in the camp" and by means of a witness present in court" who "were in a position to know the facts of the matter." There is no evidence that the accused was not sane at the time that the acts were committed and at the time of trial. The sentence of the accused is inadequate even by the standard of what an American court might give to a prisoner guard over American penitentiary prisoners for light offenses, especially considering that the accused committed these acts on men who were helpless and did not dare offer any resistance or defense. Punishments for violations of the rules set down by "agreement of civilized nations" must be of "sufficient severity as to be a deterrant against the commission of similar crimes in any future war." Paul E. Spurlock, Reviewer, Judge Advocate Section Reviewer discussed the issue of overruling by the commission of an objection by the defense concerning the issue of the character of the accused. The defense was correct in stating: "the only time the man's character is in evidence is such time as the defense desires to put that character into evidence." Furthermore, the reviewer cited from Wharton's Criminal Evidence Vol I that , "the state...cannot show the bad character of the accused until the accused has raised the issue by offering evidence of good character." Bad character is not the charge: character matters are irrelevant to finding accused guilty or not guilty of the charges. This did not became a fatal error because of what amounted to a verbal directive to disregard the characterization by the commission.

Defense Arguments: Admitted to having struck the American POW but denied the scope of their beatings. Also denied participation in the conspiracy to kill the prisoner.

Judge Advocate's Recommendations: "Jointly and in pursuance of a common intent" was taken out of the original charge. It is interesting because of the difference between the idea of conspiracy in Tokyo and in the lesser trials.