Defendant: Tsuda, Koju, civilian guard, Sendai Branch Camp No. 1, Fukushima-Ken, Honshu, Japan

Docket No./ Date: 65/ Sept. 18 - Nov. 27, 1946, Yokohama, Japan

Charge: Violation of the laws and customs of war: 1. Did willfully and unlawfully, mistreat, abuse and "contribute" to the death of one British PW. 2. Did willfully and unlawfully abuse, mistreat and beat PWs (specs 2-8, 12). 3. Did willfully and unlawfully mistreat, abuse and humiliate PWs (specs 9, 11). 4. Did willfully and unlawfully abuse, mistreat and collectively punish PWs.

Specifications: refusal of medical treatment; beating using among others sticks, hoes;beating of sick prisoners; kicking; forcibly pushing Pw's head into filthy drain; forcing PWs to stand at attention for unreasonable length of time; forcing PW to do work which was "degrading and humiliating"

Verdict: Life imprisonment

Reviewing Authority's Recommendations: Accused punished, disciplined and beat PWs severely for what the accused perceived as minor infractions of rules (walking out of step, missing name at roll call, having a broken tool, dissatisfaction with the work) or for conditions out of the PWs control, such as illness, being unable to work fast due to illness, or being unable to understand Japanese. Accused forced PWs to do humiliating and degrading work such as removing excrement by hand, scattering fertilizer and doing accused's personal washing. The accused beat, slapped and punished prisoners at will despite camp commander's policy of restraint.

Reviewing Authority: No complaints were received about abuses of PWs by Tsuda: however, complaints were received about mistreatment by company guards at the mines. The accused denied that he had ever struck or beat or humiliated any PWs. He denied that the incident involving the dead PW ever took place; he also denied that the incident involving the PW who received a head injury from a broken hoe was intentional. He stated that the one time he kicked a PW was accidental, due to him stumbling on a stone while walking. Accused stated that he did slap some PWs on occasion but had never beaten or kicked any PWs.

Prosecution Arguments: The reviewer advocated the "best evidence rule" because the excessive amount of evidence, which did not contribute to establishing the guilt of the accuse, "lacks all probative value, it hinders rather than expedites procedure, and it may conceivably prejudice the accused." In this case, this did not happen. The overwhelming direct evidence is in such conflict with the testimony and explanation of the accused that it "leaves no doubt of his guilt as charged." Specification1 "both as written and as altered by the findings includes the allegation of some degree of homicide less than murder. The alteration of the wording of the Specification by the Commission did not change the nature or gravity of the offense in the least...The grammatical error of the substituted words when inserted in their context is unimportant for the meaning and intent are perfectly clear." For spec.11, only the part of the charge pertaining to the accused ordering a PW to perform humiliating and degradating work should be approved since the PW was not forced to perform the work himself as shown by the fact that others performed the work for him.

Defense Arguments: Edward A. Doering, Reviewer, Judge Advocate Section

Judge Advocate's Recommendations: Lr. Col. Allan R. Browne, in response to the words of the reviewer concerning the issue of secondary evidence wrote, "It cannot be categorically stated that no secondary evidence is admissible where primary evidence is available. Such secondary evidence may have some corroborative value, and if so, it has probative force and is admissible under the SCAP rules." Lt. Col. Browne also addressed the discussion about the difference between homicide and murder: "the statement that the specification alleges some degree of homicide less than murder, is not concurred in, because it is considered that the gavamen of the specifications in war crimes cases are atrocities or other violations of the laws of war, adn the fact that they consisted in an assault or murder goes to the degree of enormity of the violation affecting the punishment involved."