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1953 (A) 1713

1957.03.13
1953 (A) 1713
Judgment upon case of translation and publication of LADY CHATTERLEY'S LOVER and Article 175 of the PENAL CODE
Judgment of the Grand Bench, dismissed
ARTICLE 175 OF THE PENAL CODE
(Distribution of Obscene Literature, etc.)
A person who distributes or sells an obscene writing, picture, or other object or who publicly displays the same, shall be punished with imprisonment at forced labor for not more than 2 years or a fine of not more than 5,000 yen or a minor fine. The same applies to a person who possesses the same for the purpose of sale.
Appeal in this case is hereby rejected.
The substance of the appeal made by Hiroshi Masaki, Naoya Tamaki, and Shoichi Tamaki, counsels for the defendants Kyujiro KOYAMA and Hitoshi ITO, as hereinafter stated, and the decision of this court as to the defense contentions, are as follows:

I. Translation and publication of "Lady Chatterley's Lover" and Article 175 of the Penal Code.

"Lady Chatterley's Lover" is a long novel written by D.H. Lawrence, who is well known among literary circles in England; and the work is evaluated highly from the artistic point of view. In this writing, the author's artistic and literary skill can be perceived from the dialogue filled with humor and irony, amply showing the breadth of his culture; from the manner in which he manipulates the plot; and from the way in which he describes and analyses the nature, society, and characters of persons appearing in the story. The writing also encompasses criticism of various problems pertaining to ideologies and civilization. In all these, the author has frankly expressed his own conviction, which tends to be reformative and opposed to traditional concepts, particularly those prevailing in England.

The gist of the story is about the life of Clifford, an aristocrat, who became impotent due to an injury during World War I, and his wife Connie on the Rugby Estate in Middle England. It was an unnatural and lonely life for Connie. As the plot develops, Connie falls in love with Meraaz, a married man who is living away from his wife and in the employ of Clifford on the estate as a woodsman. This state of affairs soon led to carnal relationship. Both Connie and Meraaz attempt to forsake the yoke of social bondage to put an end to their respective unnatural marital life and start a new life together based upon mutual love. This briefly is the plot of the story. The plot is reinforced with the treatment of ideological, sociological, and economical subject matters. The author criticizes the atmosphere prevailing in aristocratic society, the destruction of natural beauty by industrialization, the effect of industrialization upon the agrarian populace, the miserable living condition of the miners, the degeneration of the human mind, and dehumanization of the people in general. Pointing out these social maladies, the author attempts to show what he considers a life worthy of living, and subtly indicates his own personal views on social morality. The basic and most important theme which permeates the book is a philosophy of life which places above all things the complete satisfaction of sexual desire, as if to claim that the true meaning of human existence and perfection of humanity rests with and is founded upon love.

In professing such a philosophy, the author denies the traditional, so-called puritan concepts, morals, and social orders, which are recognized and accepted not only in his motherland but throughout the countries of the world, and he recognizes free sexual relationship outside the marital bond. At the same time, however, he is critical of the tendency of uncontrolled sex life prevailing in the modern age. It may be gathered from the context of his writing, from his preface to the book, from his other writings, and from letters referenced in the decision of the case entered by the court of the first instance, that he advocated a new sex morality predicated upon the harmony and balance of spiritual and physical elements. The fact that the writing in question is a work of art, and can be contradistinguished from the usual type of pornographic literature, has been well recognized by the courts of the first and second instance as evidenced in their decisions. However, whether the sex moral and world concept advocated by Lawrence should or should not be accepted is a question which falls within the realm of morality, philosophy, religion, and education; and even if it could be concluded that such ideas are immoral and anti-educational, still publication and distribution of his work cannot, ipso facto, be penalized under existing laws. It must be admitted that this is a matter which belongs to the field of freedom of expression and publication. The issue at hand is whether or not the writing contains an element which would fall within the expression "obscene writing" as provided in Article 175 of the Penal Code. If such an element can be found therein, then the acts pertaining to its distribution and sale would constitute a criminal offense within the contemplation of Article 175 of the Code.

Thus, in the case at hand, it becomes necessary to determine what is meant by the expression "obscene writing (picture or other object)" as contained in the code referred to hereinabove. The Court of Cassation in the past has held that, "It refers to a writing, picture, and everything else which tends to stimulate and excite sexual desire or satisfy the same; and consequently, to be an obscene matter, it must be such that it causes man to engender feeling of shame and loathsomeness." (Reference the case decided by the Second Criminal Division on 10, June 1928, Case No. 1928 (re) 1465.) Subsequently, the Supreme Court has also held in a case that, "It refers to that which unnecessarily excites or stimulates sexual desire, injures the normal sense of embarrassment commonly present in a normal ordinary person, and runs counter to the good moral concept pertaining to sexual matters." (Decided by the First Petty Bench; page 1026, No. 6. Volume 5, Collection of Decisions.) The court from which this appeal was taken considered it proper to follow the principle enunciated by the Court of Cassation and the Supreme Court referred to above, and we in this instance also reaffirm the precedents so established.

In short, according to these precedents, to be obscene the literature in question must be such that it is harmful to the normal feeling of shame, it excites and stimulates sexual desire, and runs counter to good moral concepts regarding sex.

Generally speaking, the fact that mankind possesses a sense of shame, regardless of race, climate, history, or degree of civilization, is one of the essential characteristics which distinguishes human beings from animals. The sense of shame is one of the most basic feelings which a human being has along with the feeling of compassion and reverence. He harbors a feeling of shame with respect to the inferior elements found within himself, just as he holds a feeling of compassion to that which is on the same level as himself and a feeling of reverence to that which is more sublime than himself. These sentiments form the foundation of morality which is universally accepted.

The existence of a sense of shame is more pronounced with respect to matters relating to sex. Sexual desire is not evil in itself. It is an instinct man is equipped with for the purpose of procreation of the species, that is for the purpose of growth and continuation of the family and human society. It is a natural aspect of mankind which men possess in common with the animals. Hence, it follows that the spiritual aspect of man, his dignity, rebels against such innate feelings. That, in essence, is the sense of shame, which cannot be found in animals. While this sentiment may be totally lacking or found only in a limited degree in a given individual who is of spiritually unsound or emotionally immature, or in a certain undeveloped society; nevertheless, it can be stated with certainty that it does exist among all mankind when viewed from a general point of view. For instance, even in an uncivilized community, the custom of completely exposing the sex organ is rarely found, and there is no society in which sex acts are performed openly in public. Thus, it may be stated that so far as it relates to mankind, the non-public nature of the sex act is only a natural manifestation of a sense of shame deeply rooted in human nature. Such sense of shame must be respected; to reject it as hypocrisy would be antagonistic to human nature. Furthermore, the existence of a sense of shame, working together with his rationality, prevents the hard-to-control sex life of man from falling into licentiousness, exercises control over the same, and contributes to the maintenance of sex morality and discipline which exists even in the most uncivilized society.

However, obscene literature excites and stimulates sexual desire and causes man to clearly become conscious of the animal side of him and thereby inflame a sense of shame. It is pregnant with the danger of paralyzing man's good conscience regarding sex and releases it from the control of reason, causes man to behave licentiously and unrestrainedly, and induces him to defy the established concept of sex morality and order. True, law is not charged with the responsibility of maintaining every and all ethics and good morals; such a responsibility falls within the field of education and religion. Law is merely expected to absorb into itself that degree of morality which lends significant meaning to the maintenance of social order, that is to say the "minimum morality". The conduct described as criminal in various provisions of the Penal Code are, in effect, the type of acts which are considered to be in contravention of the minimum standard of morality. Similarly with sex morality, law is charged with the duty of maintaining that minimum standard. It is, indeed, in this spirit that the distribution and sale of pornographic writings are regarded as criminal and are forbidden under Article 175.

This brings up the question of whether or not "Lady Chatterley's Lover", the writing in issue in this case, is obscene literature within the meaning of Article 175 of the Penal Code. In this connection, it must be clearly prefaced at this time that the determination in this case relates to interpretation of law, that is evaluation of the law as it is applied to the matter at hand, and that it is not a question of fact.

Such matters as those relating to the distribution and sale of the writing in question, the existence of cooperation on the part of the translator, the number of copies published and the manner in which they were published, or the motive behind the distribution and sale, etc. do have definite bearing upon the constituent elements of crime or in showing extenuating circumstances; and consequently these matters should be evidenced through the witnesses. As to the standing of the author in the literary circles or the literary value of the writing, it is proper and necessary that the opinion of experts be solicited. However, determination as to whether or not the original work itself comes within the meaning of obscenity under Article 175 is not a question of fact relating to the writing in question but is a question of interpretation of law. The book in question is actually in existence, and the court is only called upon to interpret and apply the law. There is no difference between this case and the interpretation of provisions concerning essential elements of crime as provided with respect to various statutory crimes prescribed in the Penal Code. It is for this reason that the court should adjudicate even the degree of stimulation and excitement the book arouses in readers in general and the feeling of shame it engenders in them. The criteria for the court in making adjudication is its conscience, that is the social concept generally accepted by society. This social concept is "not a conglomeration of individual perceptions, nor is it its average standard, but is a collective conscience of the society which transcends far above the individual perceptions; and this collective conscience cannot be negated by the fact that some persons as individuals happen to maintain contrary opinions," as already shown by the decision of the court of previous instance. As to the determination of what constitutes the social concept, it is a matter left to the judges under the present judicial system. The fact that the opinion of individual persons in society, judges of the courts of different instances, or even of the judges who constitute the same collegiate body, does not necessarily agree is only a natural phenomenon, just as in the case of rendering an opinion on any other legal question. Such is the truth in the case of interpretation of law regarding obscene literature, and it does not immediately follow that such phenomenon can be utilized to deny that the court has the power to determine what constitutes social concept. Consequently, it is unavoidable that the opinion of the court may differ from that of certain elements of the people as to whether or not the subject literature is obscene. In this instance the fact that judges are required to make determination according to their conscience as to what constitutes social justice is no different from their duty in rendering interpretation regarding any law. This type of issue is ever present in interpreting law, especially when judicial construction is sought on such a general provision as good moral concept or various other broad provisions contained in statutes. In coping with such a situation, the court takes up a concrete case and makes adjudication. Compilation of such decisions constitute a precedent.

It should further be noted at this time that the social concept regarding sex is not the same depending on time and place; and even in the same society, it changes from time to time. For instance, paintings and sculptures which were forbidden from the public eyes before may be exhibited later on, and stories which were barred from publication may be permitted to be published without causing any furor at another time. Furthermore, in this day and age, the freedom of association between the different sexes has been greatly expanded and the co-educational system broadly recognized, with a consequence that the traditional concept concerning sex has had to be re-examined. Thus it is a fact that many practices taboo in yesteryears have been gradually released from social restrictions. However, in spite of the fact that the social concept concerning sex is undergoing changes, it cannot be denied that there still exists in any society a demarcation which cannot be overstepped and that the demarcation is still being honored by the general public. This limitation is the nonpublic nature of sex acts referred to hereinbefore. So far as it relates to this matter, it cannot be recognized that the social concept has changed so radically as to say that what has been regarded as obscene before is no longer obscene today. Even if it is to be admitted for the purpose of argument that the ethical sense of the mass of people has become paralyzed to the extent that they fail to recognize what is truly obscene as obscene, the court is invested with the duty of protecting society from moral degeneration, in accordance with the criterion set forth by the social concept which is the ideal of humanity possessed of wholesome and virtuous minds. In final analysis, law and the judiciary do not necessarily conform to social realities at all times; they must approach social pathological phenomena with a critical attitude and perform the role of a clinical doctor.

Now, in studying the translation in question, it may be noted that unlike the usual type of pornographic writings, it is not entirely without literary characteristics; yet, the description of the sex acts contained therein at twelve passages, as pointed out by the prosecutor, is all too bold, detailed, and realistic. Such a manner of expression is contrary to the principle of nonpublic nature as sex acts and is injurious to good moral sense of shame to the extent that one would hesitate reciting it within the family circle or at a public gathering. And as to its effect upon individual persons and society, it can readily be concluded that it would only serve to excite and stimulate sexual desire and violate the good moral concept concerning sex matters. In short, it may be restated that the translation of the passages under consideration far exceeds the bound of propriety generally accepted in society. In view of this analysis, it is adjudged that it was proper for the court of previous instance to declare that the translation itself was an obscene writing within the meaning of Article 175 of the Penal Code. The contention of the defendants, as expressed in the appellate brief, that the court ignored the standard concept generally accepted by society, and that the judge acted arbitrarily and capriciously cannot, therefore, be accepted.

At this time a few points concerning the obscene nature of the translation at hand may be considered more in detail.

As has already been stated, the book as a whole is a work of art and ideological in nature, and it has been valued considerably among English literary circles. This special artistic literary quality has been manifested not only throughout the book but can also be perceived even in the description of the sex acts at twelve places as indicated by the prosecutors. However, it must be clearly noted that art and obscenity are concepts which belong to two separate, distinct dimensions; and it cannot be said that they cannot exist side by side. If it is to be asserted that an obscene writing cannot be called true art, or that true art can never be obscene, it would merely be a matter of theoretical discussions. Such a mental manipulation is like engaging in an argument as to whether a bad law should be recognized as law. Just as the content of a positive law can be evil, it is possible to find an obscene element in a work of art which we generally accept as valid art. Because pornographic writings usually lack artistic quality. This writing which is truly a valid piece of art is not a pornographic writing, as already established by the decisions since the trial in the first instance. However, the obscene nature of the work cannot be denied solely for the reason that the work in question is artistic literature. This is so because even the finest piece of artistic product can be evaluated as being obscene from the ethical and legal point of view. Such a conclusion is not impossible because art, law and morality can exist in entirely different dimensions. We cannot give our support to the principle of "art-for-art's sake" which places emphasis only upon the artistic quality of production and denies criticism from the moral and legal points of view. No matter how supreme the quality of art, it does not necessarily wipe out the stigma of obscenity. Art, even art, does not have the special privilege of presenting obscene matters to the public. Be he an artist or a literary man, he may not violate the duty imposed upon the general public, the duty of respecting the feeling of shame and humility and the law predicated upon morality.

The same thing said with respect to art can be said in connection with various scientific and educational texts dealing with the subject of sex. An artistic production, however, differs from a scientific text book which treats a given subject objectively and dispassionately, in that it strongly appeals to the sense and emotion; and, consequently, instead of nullifying the obscene quality in the work, it may even serve to intensify the degree of stimulation and excitement.

Existence or non-existence of obscenity in a writing must be judged from a purely objective point of view, that is, by analyzing the piece of work in question itself; and in its determination, one should not be influenced by any assertion of subjective intention of the author. The attorney for the defense defines obscene literature as a "malicious writing on the subject of sex, designed and calculated to stir avid curiosity only in the mind of a minor person who is incapable of exercising mature, independent judgment; deny the true function of the sexual instinct in a human body as that which is necessary for the procreation of the species or cause him to forget the same; turn the flesh into a tool of profligation and dissipation; and bring about irreparable injury to the mind and body of the minor," and criticizes the decision of the previous court, asserting that the book in question was written with sincere intent. If we were to accept this definition, no matter how obscene a writing might be, as long as it was intended for esthetic or educational purpose, it would be excluded from the category of obscene literature; and so-called obscene literature would be limited only to an out-and-out pornographic writing. Sincerity of writing does not necessarily nullify the obscene quality of the writing. Consequently, the assertion of the appellants on this issue cannot be accepted.

Next, the appellants attack the propriety of the decision of the court of previous instance on the ground that the facts of the case failed to make out the criminal intent of the accused, because the translation in question was published with the "intention of giving a warning to the public."

However, in order to make out the criminal intent for the offense described under Article 175 of the Penal Code, it is necessary only to ascertain the knowledge concerning existence of the writing in question and its distribution and sale; and it does not go so far as to require that the person involved must also be cognizant of the fact that the writing in question contains obscene matters within the meaning of the provisions of the same article. Even if one sells certain literature, believing subjectively that it does not come within the purview of Article 175, it must nevertheless be said that such a state of mind would not nullify the criminal intent on the basis of mistake of law, if in fact when analyzed from an objective point of view it possesses an obscene quality. Whether the writer had a complete knowledge as to the obscene nature of his work or had only a vague recognition, or whether he had no knowledge whatsoever, merely goes to the question of mitigation under the proviso contained in paragraph 3 of Article 38 of the Penal Code; and it has nothing to do with the existence of the criminal intent. In view of the foregoing, the decision of the court of previous instance which accepted this principle as outlined hereinabove was proper, and the defendants' argument cannot be accepted.

The appellants also contended that to be obscene literature, a writing must be such that it stirs curiosity only in the minds of mentally immature minors and causes irreparable damage to their minds and bodies. Inasmuch as the dissemination of obscene literature affects the mind and body of a minor quite adversely, it is natural that its prohibition would have a great significance to the welfare of minors. However, in determining what constitutes obscene literature, consideration of its adverse effects must not be limited to any one particular class of readers, but it must be considered in respect to the readers in general. The appellants' argument which limits the consideration to minors is too arbitrary and capricious and cannot be accepted.

II. Article 175 of the Penal Code and Article 21 of the Constitution.

In the appellants' brief, their Attorney, Shoichi Tamaki, contended that the guarantee of freedom of expression contained in Article 21 of the Constitution is almost without limitation, and even if it is to be admitted that it can be limited in the name of "public welfare," the basis for the determination of restriction must clearly be established before the fact; that under the new Constitution which nullified the system of censorship, the question of whether or not any given writing is contrary to the "public welfare" clause of the Constitution must be left to the discretion of the individual persons concerned; that in the present case, the court of previous instance failed to accept the exercise of discretion by the individual persons concerned in connection with the translation in question and imposed punishment against the defendants; that therein lies the error in adjudicating the case in the instant case; and that in short, it violated Article 21 of the Constitution. However, it must be remembered that the basis for making the determination against the translation in this case lies in the social concept, the conscience of the general public. Therefore, it cannot be said that the criteria was not clear before the fact. Furthermore, whether or not a writing runs counter to the welfare of the public must be decided from the objective point of view and must not be left to the discretion of individual persons concerned. For these reasons, the contention of the defense counsel cannot be accepted.

Mr. Naoya Tamaki argues in his appellate brief that the freedom of expression guaranteed under Article 21 of the Constitution is unlike other guarantees of basic human rights contained in Articles 22 and 29 of the Constitution, in that it does not contain any restrictive clause; and therefore its expression is absolutely unlimited and even the public interest may not operate to restrict its application. However, none of these constitutional provisions which deal with various phases of basic human rights are unlimited. Whether they contain self-restrictive clauses or not, they all fall under the delimitation prescribed under the provisions of Articles 12 and 13 in the interest of the public welfare, so that no one may abuse the privileges guaranteed thereunder. This principle has been clearly established and frequently pointed out in the decisions rendered by this court (1947 (re) No. 19, decided by the Grand Bench on 12 March 1947; 1948 (re) No. 743, decided by the Grand Bench on 27 December 1948; 1949 new (re) No. 423, decided by the Grand Bench on 11 October 1950. Cases specially related to Article 21 of the Constitution are as follows: 1948 (re) No. 1308, decided by the Grand Bench on 18 May 1949; 1949 (re) No. 2591, decided by the Grand Bench on 27 September 1950; 1950 (ku) No. 141, decided by the Grand Bench on 4 April 1951; 1949 (re) No. 498, decided by the Grand Bench on 9 January 1952; 1950 (a) No. 2505, decided by the Grand Bench on 6 August 1952). When the principle established in these cases is applied to freedom of publication and other types of freedom of expression, it must be admitted that these freedoms are very important; nevertheless, they are restricted by welfare of the public. In view of the fact that the maintaining of minimum standard of sexual morality undoubtedly constitutes the substance of welfare of the public, the judgment of the court of previous instance which recognized the translation in the present instance to be obscene and adjudicated that its publication was injurious to the public welfare was proper. The argument of the appellant has no merit. The appellate brief also contended, under the argument presented hereinabove, that if there be a situation in which Article 175 of the Penal Code can be applied at all, its application must be limited to writings which are out-and-out pornographic when subjected to scrutiny from all angles; but as stated already, such an argument has no acceptable reason.

In substance, the appellate brief (submitted by Counsel Hiroshi Masaki) criticizes the decision of the previous court which held that the subject book constituted an offense under Article 175 of the Penal Code, on the ground that it regarded the public welfare concept only in the light of respect of basic human rights and avers that since the book treats the problems of sex with sincerity, it is compatible with the public welfare principle. Such a concept is alien to the idea that the scope of basic human rights is not unlimited but that it is subject to the interest of the public as established in the cases cited hereinbefore. Furthermore, even if the translation was motivated by a sincere intent--and it is to be admitted that its context has some elements which are in accord with public welfare still--, it does not nullify the obscene character of the work. Consequently, this argument cannot be permitted.

In the appeal (by Counsel Hiroshi Masaki) it is critically argued that the Publication Law enacted under the old Constitution has been repealed, and since then the "writings and drawings which corrupt public morals" as provided in Article 27 of the law have not been made the object of criminal prosecution. It may be admitted, as asserted in the appellate brief, that in the past literature which affected the morals adversely was punished under the Publication Law, that that law was invoked in cases involving publication of obscene literature, and that Article 175 of the Penal Code was rejected from its application. The reason for that is, two laws maintained the relationship of a special law and a general law so far as they deal with obscene literature. Now that the special law, the Publication Law, has been repealed, it must be recognized, under the present state of affairs, that the provisions of Article 175 of the Penal Code became applicable with respect to publication of obscene writings. In view of this, the argument of the appellant has no merit.

In the appeal (by Counsel Shoichi Tamaki) it is contended that, referring to Article 21 of the Constitution which prohibits censorship, what can or cannot be done under the name of public welfare cannot be ascertained before the fact and that its determination is left to the discretion of the accused; that the previous court, however, imposed punishment for making the wrong determination; and that such decision constitutes violation of Article 21 of the Constitution. This argument is erroneous. The mere fact that the Constitution prohibited censorship before the fact does not mean that distribution and sale of obscene literature cannot be prohibited. As long as the prohibition of obscene matter is clearly in accord with the protection of public welfare and as long as it can readily be determined in the light of the general social concept as to what constitutes obscenity, the position taken by the court of previous instance cannot be said to be unconstitutional.

III. Paragraph 3, Article 76 of the Constitution and the Decision of the Previous Court.

In the appellate brief (Counsel Hiroshi Masaki) maintains that the decision of the lower court violates Paragraph 3, Article 76 of the Constitution, inasmuch as the reason for the decision is predicated upon intentional disregard of the principle of logic and therefore erroneous judgment, and is unconscionable. However, it must be remembered that the provision of the Article, which states that all judges shall be independent in the exercise of their conscience, means that the judges should follow their inner conscience and moral concept without bowing to outside pressure, physical or moral, as has been propounded in a previous decision (1947 (re) No. 337, decided by the Grand Bench on 17 November 1948). This argument, in its final analysis, is nothing more than a criticism of the decision of the lower court as being unconscionable only because its point of view differs from that of the attorney for the appellants. For this reason, the contention that the decision is contrary to Paragraph 3, Article 76 of the Constitution, is without merit. Similarly, other charges of unconstitutionality predicated upon the same contention is also without any merit.

Therefore, this court renders decision as set forth in the text in accordance with the provision of Article 408 of the Code of Criminal Procedure.

Aside from the separate opinions of Justice Tsuyoshi Mano and Justice Shunzo Kobayashi hereinafter, set forth, the foregoing is the consensus of opinion of all of the justices.
Justice Kotaro Tanaka
Justice Tsuyoshi Mano
Justice Katsushige Kotani
Justice Tamotsu Shima
Justice Yusuke Saito
Justice Hachiro Fujita
Justice Matasuke Kawamura
Justice Shunzo Kobayashi
Justice Toshio Irie
Justice Katsu Ikeda
Justice Katsumi Tarumi
Justice Zentaro Motomura retired and he did not sign and seal.
Justice Kotaro Tanaka.
THE OPINION OF JUSTICE TSUYOSHI MANO IN THE SUBJECT CASE IS AS FOLLOWS:

First: I agree with the conclusion and the opinion of the majority ruling expressed in the appellate case of Kyujiro KOYAMA, except as to the following points:

In the subject case, the most important problem involved is whether or not the translation in the case constituted an obscene writing within the meaning of Article 175 of the Penal Code. It is my belief that the question of obscenity is not an absolute one; neither is it immutable or inflexible. It is a matter which differs according to age, race, mores, customs, tradition, moral concept, national consciousness, national sentiment, religion, education, and the like; and it undergoes changes as history unfolds itself gradually. From the judicial point of view, it is a problem which must be adjudicated by the judges according to their social concept; and that concept must, of necessity, change and shift with the social condition. Consequently, it would not be necessary to explain at length that whether a given matter is obscene or not is inevitably dependent upon time and place, and it is a concept which is fluid and ever-changing. However, the majority opinion seems to indicate that there are two stages o r two types of obscenity--one that changes from time to time and from place to place, and the other which remains constant, transcending time and place; and, furthermore, it seems to indicate that the translation in this instance belongs to the latter category. Such a treatment is quite unscientific, and I can hardly concur.

According to the marriage customs and practices of old Japan, as may be perceived from such classic literature as Kojiki, Nihon Shoki, Manyoshu, Fudoki, etc., the method of selecting one's mate apparently was extremely liberal and completely incompatible with the punctilious method adopted later in the feudal period. In one particular, according to an ancient custom called "utagaki" or "kagai," it is said that a group of young men and women went, hand in hand, up into a mountain, normally regarded as sacred, and there they feasted, sang, and danced; and at the height of pleasure, they engaged openly in indiscriminate group sex acts and indulged in the state of ecstasy.

It is reported that not only unmarried people, but married men and women also participated in this affair. In regard to this "utagaki " there is a song in Manyoshu which goes, "In kagau-kagai", may I also participate in intercourse with another's wife, and let others commune with my wife." However, it must be remembered that these functions were regular affairs practiced in the spring and autumn in the sacred compound with divine permission. Consequently, it cannot be adjudged simply by the concept of eroticism or obscenity as we understand it today. They must be considered as revealing a glimpse of ancient marriage customs based upon group sentiment and group conscience of that time, which must be viewed beyond the present day feeling. At the same time, these practices are indicative of an ancient festival tinged deeply with religious, emotional, and agrarian atmosphere. Without displaying an array of examples from various countries, this one sample seems to amply illustrate that a way of thinking like that of the majority opinion which attempts to set up an absolute bound for obscenity irrespective of time and people cannot escape criticism that it is a theory which disregarded clearly established historical facts. It is my opinion that whether a matter is obscene or not must be determined on the basis of the social concept prevailing at a given time in a given society in their mutual interrelationship. It is noteworthy that, in a similar case in the United Sates, Judge Hand has stated in effect that it is unthinkable that, in actual practice, the sense of shame should forever bar expression of the most beautiful and important aspect of human nature.

According to the Protocol of 12 November 1947 to amend the International Treaty concerning Prohibition of Traffic in and Distribution of Obscene Publications, concluded at Geneva on 12 September 1923, it seems that the question of whether the term "obscene" should or should not be defined for international application became an issue; but it was finally decided that such an attempt would be difficult and unnecessary since the customs, moral standards, and national consciousness of various countries are so radically different. This one fact should serve to impress us with the fact that there can be no fixed or absolute obscenity transcending time, race, or society.

Generally speaking, the way of thinking, concept, sense, and feeling of an individual concerning sex are subject to change as the environment around him changes and fluctuates. Such changes may be rapid or slow, but in any event the situation would not remain static. This is more so in this day and age when the world tends to shrink smaller, with more pronounced opportunity for the various peoples, customs, and social practices to come in contact with one another, each exerting its influence upon the other, and scientific research progressing by day and by month. It seems possible that a radical change in the concept of sex may be realized in a much shorter time than heretofore when viewed from a historical point of view.

In the so-called literary-legal complication (literatura protuce) like in the present case, it may be possible that obscene elements may be cancelled, purified, cleansed, or negated if there is present literary or artistic worth, value, consideration, or sincerity in the motive: and such matters would constitute important aspects which should be taken into consideration. However, such would not be the case as a rule in every instance. The description of the scene of sexual intercourse which constitutes so-called "hot" passages in the translated work in question is excessively sensuous, and the physical sensation experienced in the act is too frankly described. Judged in the light of current moral concept, it must be stated that our society is not yet liberal enough to accept such depiction. The description does come within the purview of the legal definition of the term obscene, and the work must be adjudicated as being obscene literature.

I feel constrained to touch upon two or three more points which I cannot agree with the majority opinion.

The majority opinion expounds that, "However, in spite of the fact that the social concept concerning sex is undergoing changes, it cannot be denied that there still exists in any society a demarcation which cannot be overstepped, and that that demarcation is still being honored by the general public. This limitation is the private nature of sex acts referred to heretofore." As to the private nature of sex acts referred to heretofore, it merely states that, "It can be stated with certainty that 'the sense of shame' does exist among all mankind when viewed from a general point of view. For instance, even in an uncivilized community, the custom of completely exposing the sex organs is rarely found; and there is no society in which sex acts are performed openly in public. Thus, it may be stated that so far as it relates to mankind, the covert and private nature of the sex act is only a natural manifestation of a sense of shame deeply rooted in human nature." Consequently, what the majority opinion terms "private nature of sex acts" merely means that sex acts are not performed publicly. The expression "the principle of private nature of sex acts" is a high-sounding expression, but the substance contains nothing more. On one hand, the majority opinion recognizes that the social concept regarding sex is "not the same depending on time and place, and even in the same society it changes from time to time," but on the other hand, with regard to changing social concept, it states that there is a "principle of private nature of sex acts" which is a universally accepted standard transcending time, people and society, "a demarcation which cannot be overstepped."

Standing upon this premise, the majority opinion goes on to state, "Now in studying the translated work in question it may be noted that . . . the description of the sex acts contained therein at twelve passages as pointed out by the prosecutor is all too bold, detailed, and realistic. Such a manner of expression is contrary to the principle of non-public nature of sex acts." If I may be permitted to speak frankly, all I could say is that such a conclusion is extremely illogical and has the sequence of things sadly confused.

The principle of private nature of sex acts, upon which the majority opinion is predicated, merely means, as already explained heretofore, that sex acts are not performed publicly. Consequently, to violate the principle would merely mean that sex acts are performed openly. (The translated work under consideration is not, of course, a living being; consequently, it cannot of itself engage in sex acts in open or in secrecy.) The description of the sex acts related in the present book is not a depiction of an open scene of sexual performance. In this respect, there can be no violation of the principle of non-public nature of sex acts. The majority opinion states in the first half of its opinion that the principle of private nature of sex acts is a universal standard which does not change by reason of time, place, or society. Consequently, to say that the description of the sexual scene in the present work violates the principle of private nature of the sex act is tantamount to saying that it violates the universal standard which is not affected by time, place, or society. It is hard for me to understand how such a radical statement can be made. As a matter of fact, in France the original work, as well as an unabridged translation, has been published; and in Italy the original work, and in Germany, its translation, are being published. To bring the matter closer to home, ten persons, to wit, Rintaro Fukuhara, Ichiko Kamichika, Kenichi Yoshida, Otoya Miyagi, Seiichi Yoshida, Kanji Hatano, Tatsuo Iwabuchi, Tosaburo Minegishi, Yoken Nojiri, and Chiyoko Sone, who were called as witnesses at the trial in the first instance, testified that the work in question is not obscene; six persons, Tokujiro Kanamori, Tetsuichi Sawato, Kinichi Komada, Maki Miyakawa, Mitsukazu Tsuchiya, and Yutaka Moriyama, testified that they were not certain whether the book is obscene; and only eight persons, Tsune Guntlet, Atsuo Mori, Shinnosuke Abe, Masa Higashi, Isamu Saito, Tetsuzo Watanabe, Naokuni Miyaji, and Sho Kodama declared it to be obscene. It is my opinion that that portion of the majority opinion which states that the description in the translated work is of obscene nature, which will remain unchangeable irrespective of time or people, should be deleted.

Next, the majority opinion states that, "determination as to whether or not the original work itself comes within the meaning of obscenity under Article 175 is not a question of fact relating to the writing in question, but is a question of interpretation of law," and in subsequent paragraphs it uses the expression "interpretation of law" at several places. This is also a discordant expression.

As applied to this case, Article 175 of the Penal Code penalizes "a person who . . . sells . . pornographic writing." The issue confronted in the present case is the meaning of the term "obscene". Cases clearly define the term as used in the Article as, "It refers to that which unnecessarily excites or stimulates sexual desire, injures the normal sense of embarrassment regarding sex commonly present in a normal ordinary person, and runs counter to the good moral concept pertaining to sexual matters." Up to this point, it is a question of legal interpretation.

In view of the foregoing, it is not necessary to rely upon the testimonies of witnesses or other evidential matters to determine whether or not a description in a given writing comes within the purview of the clearly defined legal interpretation. This matter should be left to the legal evaluation of judges. Consequently, determination as to whether or not the writing itself comes within the term "obscene literature" is a question of application of law to a concrete fact and is not a question of legal interpretation as explained in the majority opinion. Application of law and interpretation of law are two different functions in the operation of the court, and it is important that these two things should be distinguished from each other. (Ref. Article 394, Code of Civil Procedure; Paragraph 1, Articles 405 and 406. Code of Criminal Procedure.) Since, however, interpretation of law and application of law are functions so closely interrelated with each other, both are, at times, referred to as application of law in its broad sense. For instance in Article 380 of the Code of Criminal Procedure, the provision "When there is an error in application of laws and ordinances" includes both the error in interpretation of laws and ordinances as well as the errors in the application in its narrow sense. However, in a converse situation, application of law is not and cannot be included in the expression "interpretation of law." There are also situations in which both are included. Such expressions as "infringement of law etc." and "contravention of law, etc." are good examples. (Reference Article 394, Code of Civil Procedure; Article 458, Code of Criminal Procedure; Articles 409 and 520, Old Code of Criminal Procedure.) In connection with the procedure relating to emergency appeal, there is used the expression "violation of laws and ordinances," and in interpreting this provision there is a case decided by the Grand Bench of the Supreme Court which adjudged that this expression refers only to errors in interpretation and does not include errors in application (page 685, No. 4, Volume 6, Collection of Supreme Court Decisions). At the time of the decision in that case, in a dissenting opinion, I expressed in detail its impropriety, which later drew much support. In the light of these examples too, it seems obvious that it is necessary that there is a clear understanding regarding differences between the application of law and interpretation of law. Because of these reasons, I cannot accept the majority opinion which treated the legal determination in the instant case in the manner explained above.

Speaking in general, it is indeed a difficult task to establish an accurate interpretation which clearly defines the legal meaning of the term obscene; but regardless of what definition is adopted, it would still be a harder task to apply the same in the next stage in the process to see whether or not a given set of facts would come within the contemplation of the definition. This is the duty assigned to the judges. This is so because the judges are required to render judgment, not in accordance with their individual subjective point of view, but objectively in accordance with the social concept representing the good conscience of the normal healthy citizenry of society. It is a matter to be determined not upon a purely subjective point of view nor upon a purely objective point of view (as in the case of ascertainment of facts), but upon, so to speak, a subjective-objective point of view.

The majority opinion states that, "Even if it is to be admitted for the purpose of argument that the ethical sense of the mass of people has become paralyzed to the extent that they fail to recognize what is truly obscene as obscene, the court is invested with the duty of protecting society from moral degeneration, in accordance with the criterion set forth by the social concept which is the ideal of humanity possessed of wholesome and virtuous minds. In final analysis, law and trial do not necessarily conform to social realities at all times; they must approach pathological degeneration with a critical attitude and perform the part of a clinical doctor." This expression is very significant, not only in connection with this case, but also in connection with all types of cases, inasmuch as it deals with the basic mission of trial and the mental attitude of the judges. It is to be expected that a case should be disposed of as obscene when it is truly recognized as obscene from the legal point of view, but such thinking as "protecting the society from moral degeneration " or "they must approach pathological degeneration with a critical attitude and perform the part of a clinical doctor," over and above the legal consideration is, judicially speaking, an evil course. That is my usual understanding. It is the mission of the judge to interpret and apply the law faithfully, calmly, and justly. This is the most important basic attitude that the judge should assume. This is exactly what the Constitution means when it provided that the judges are bound by law. However, if the judges are to perform the judicial function with oddly affected notions that they are the guardians of good morals, practices, and customs, trials in which the objective attitude is intrinsically respected may be conducted on the basis of strong subjectivism which may differ radically from person to person, and cases adjudicated in such extra-judicial consideration as simple intuition or prejudice and dogmatism emanating from personal desires and purposes. Such evils are felt more strongly in cases involving matters related to ideology, morals, or customs. Furthermore, it must be remembered that this evil course may lead to other paths of depravity, such as the tendency to over-emphasize the necessity of control and slighting or ignoring the principle of nullum crimen sine lege, nulla poena sine lege, in the operation of law. This evil may be particularly pronounced in a criminal case in which special full attention must also be paid to the protection of accused's basic human rights. (Reference page 1988, Volume 4, and pages 1591 on; No. 7, Volume 7 of Collection of Special Cases.)

Second: Regarding Hitoshi ITO's appeal, I object to the conclusion reached by the majority opinion. There is a grave error of law, as will be explained hereinafter, in the decision of the court of last instance, concerning this appellant; and it is clear that a miscarriage of justice would result unless the decision is quashed. Consequently, it is proper that the decision be quashed ex officio according to the provision of Item 1, Article 411, of the Code of Criminal Procedure, and the case remanded to the court whence it came without passing upon the reasons for appeal.

In the first instance, the trial court failed to establish the existence of facts constituting the criminal offense, and declared the defendant not guilty on the ground of lack of evidence. The appellate court quashed the decision of the trial court and, without itself conducting any investigation, recognized the existence of facts only on the basis of the trial record and the evidence as adduced by the court of first instance and found the defendant guilty of the offense charged. Such a practice cannot be condoned under the interpretation of the provisory clause of Article 400, Code of Criminal Procedure. This conclusion has already been reached by the Grand Bench as shown in its decisions on numerous occasions. (Decision of 18 July 1956, page 1147, No. 7, Volume 10, Collection of Decisions; Decision of 26 September same year, page 1393, No. 9, Volume 10, Collection of Decisions.) The reasons given in these cases are that; "Even when the prosecutor appeals from the decision 'of the court of first instance which exonerated the defendant from the criminal responsibilities', and the case is continued in the appellate instance, the accused is entitled to the guarantees of the provisions of Articles 31 and 37 of the Constitution; and in the hearings on appeal it must be said that the principles of oral pleadings and direct inquiry must be applied in the same manner as it is in the trial in the first instance. It, therefore, follows that the accused has the right to have the findings of guilty pronounced only after due hearing conducted according to law in open court, in their presence, and accorded opportunity to defend and plead their cases and the facts constituting alleged criminal offense clearly established. Consequently, where, such as in the case at hand, the court of first instance did not establish criminal facts and returned the judgment: of not guilty, it would be in violation of the above mentioned constitutional rights guaranteed to the accused if the court of appeals were to quash the decision of the court of first instance, make the finding of criminal facts and determine the guilt of the accused only on the basis of trial records and the evidence found by the trial court. Such practice would also violate the principle of direct inquiry and oral pleadings. Because of these reasons it must be construed to be not permissible under the provisions of proviso of Article 400 of the Code of Criminal Procedure." These decisions are concluded with a special notice to the effect that, "So far as it relates to the interpretation of Proviso of Article 400, anything to the contrary found in the decisions rendered heretofore shall be considered changed to the extent they differ from the opinion expounded herein."

The interpretation of the provisory clause of Article 400 of the Code of Criminal Procedure, as it relates to Article 31 of the Constitution, has been something of a problem for quite some time. The discussion was accelerated since the decision in the so-called Mitaka Incident, and finally the attitude of the court regarding fact finding in the appellate instance was changed, resulting in a holding of the Grand Bench as mentioned above.

Now, in the instant case, Hitoshi ITO was declared not guilty by the court of first instance, and there was no finding of facts constituting criminal offense. Although in the facts recognized by the court of first instance, there is a notation that, "Kyujiro KOYAMA planned to translate and publish 'Lady Chatterley's Lover' written by Lawrence, requested Hitoshi ITO to translate the same, and did in fact obtain a Japanese translation of the book." The appellate court, however, stated that there are all kinds of cooperation that can be rendered by the translator, and depending upon the degree of cooperation involved, he may be a co-principal or merely an accessory. The same court made a finding, without conducting any investigation of its own, that Hitoshi ITO's conduct was sufficient to make him a co-principal in the crime. This, it did only on the basis of trial record and fact finding of the court of original jurisdiction. In this respect, this case is exactly the same as the one dealt with by the Grand Bench as explained above and is in violation of the provisory clause of Article 400 of the Code under discussion. For this reason, the judgment of the appellate court should be reversed.

It is also clear that Hitoshi ITO was cleared by the court of first instance but was fined by the court of second instance in the amount of 100,000 yen. For the same reason stated above, this sentence should also be quashed. It is my opinion that the same reasoning should be applied and the same conclusion reached where an appellate court intends to impose a heavier penalty than the one assessed by the trial court. That is to say, that under the interpretation attached to Article 400 of the Code of Criminal Procedure, it would not be permissible for an appellate court to quash the decision of the trial court and, without making any findings of its own, impose a heavier penalty only on the basis of the records of trials and the evidence as found by the trial court.

However, in another case decided by the Grand Bench on the same day, on 18 July (page 1177, No. 7, Volume 10, Collection of Decisions), the appellate court rejected the judgment of suspended sentence and imposed actual physical penalty. The majority opinion held that "In adjudicating a case on appeal in which the prosecutor alleged that the amount of penalty imposed by the court of first instance was improper, it is not always required that the court of appeal should itself conduct investigation of facts. If it can be recognized from the trial records and the facts as gathered by the trial court that the penalty imposed was improper, it should not be an error of interpretation of Proviso of Article 400 of the Code of Criminal Procedure to impose a penalty more severe than one that was assessed by the court of original jurisdiction." Contrary to the Grand Bench decision given at the outset which gives a detailed reasoning regarding the findings of a new criminal fact, this decision in treating the amount of penalty passes over the problem all too simply and gives no explanation as to why the two matters should be dealt with differently. This has no special merit. When studied in the light of the detailed reasoning given in the first decision, there appears to be a clear inconsistency in the second decision. As I view it, therein lies the great defect in the second decision.

The gist of the reason given in the decision given at the outset which deals with the finding of facts constituting criminal offense is that the accused is entitled to the rights specified in Articles 31 and 37 of the Constitution during the appellate hearings and that they are entitled to the application of the principle of direct inquiry and oral pleadings in an open court on the same basis as the trial in the first instant court. Article 31 of the Constitution provides that, "No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." This article guarantees due process of law in the imposition of penalty; the procedure consisted of direct inquiry and oral pleading which is the basic principle embodied in modern criminal procedure. In other words, this guarantee is provided against an arbitrary penalty. In a trial, therefore, in order to have a "criminal penalty . . . imposed," it is necessary that the existence of facts constituting criminal offense be first established and thereafter the proper amount of penalty be determined. Determination of existence of criminal facts and determination of the proper amount of penalty are inseparable complement like a pair of wings in the imposition of penalty. One cannot stand without the other. (There may be a rare situation in which the existence of criminal facts is recognized but no penalty is determined. Such a situation cannot be termed a true example in which penalty is imposed properly. For example, in the celebrated Placard Case, the court of second instance established the existence of criminal facts but thereafter the accused was excused from further action; for in the meantime the Grand Amnesty was proclaimed and granted. Page 607, No. 6, Volume 2, Collection of Decisions.) Since Article 31 of the Constitution is designed to insure imposition of the proper penalty as indicated in its clearly expressed language, it is to be expected that both wings, the determination of criminal facts as well as the amount of penalty, come within the purview of the guarantee provided in the Article. The reasons given in the detailed explanation regarding constitutional guarantees concerning fact finding contained in the decision cited at the outset, therefore, must also be considered proper with respect to the determination of the amount of penalty.

Perhaps, there are some people who think that the question of fact finding is quite important but that of the amount of penalty is not very important. It is true that the existence of criminal facts must first be ascertained before the necessity of determining the amount of penalty arises. Unless the fact finding is made, there is no necessity for the consideration for penalty. However, it should not be concluded only because of this reason, that the question of fact findings is important enough to receive the protection of Article 31 of the Constitution and that of amount of penalty is of less importance and therefore is not worth the constitutional guarantee and treated differently. Such a concept is completely ideological. Such persons should scrutinize the entire circumstances and prepare to face reality. The fact that the number of accused found guilty is overwhelmingly greater than those found not guilty, and that the number of accused who plainly admit their guilt in open court is much greater than those who contest the charges and specifications is quite eloquently borne out by the judicial statistics of both East and West. These facts clearly indicate that so far as the great majority of accused are concerned, the matter of great importance in a trial process is not the fact finding, but rather the determination of the amount of penalty. Therefore, in reality, it is the amount of penalty which require closer attention in the actual operation of the court. When we face this reality, the practice, such as that which holds that the constitutional guarantee of Article 31 applies only to the fact finding and not to the determination of amount of penalty, is too one-sided, and the basic human rights of the people cannot be expected to be protected to the fullest extent. For instance, if it is to be said that in probing new evidence in a case of a pickpocket in the appellate proceedings, review of document alone is not permissible, but in a case like the Mitaka Case, in changing the life term imposed by the court of first instance to death penalty on appeal, it may be done merely by reviewing the existing records; the treatment would be most unbalanced and, to say the least, would result in a grave miscarriage of justice.

There is another reason advanced for according a different treatment to the two matters under discussion here. That is that fact finding is a matter related to ascertainment of truth, and there is very little room for judicial discretion, but the question of amount of penalty is a matter left to the wide discretion of the court. There are two shortcomings in this view, and I cannot agree with it. One is the belief that there is no room for judicial discretion in the matter of fact finding, and the other is the belief that since the amount of penalty is a matter left to the discretion of the court there is no chance for miscarriage of justice.

The truth of the matter is that: (a) ascertainment of fact is also a matter of discretion with the court, and (b) although the determination of amount of penalty is left to the discretion of the court, when the penalty is to be increased upon appeal or in a similar situation, it is required under Article 31 of the Constitution that discretion be exercised through the court process in which the principle of direct inquiry and oral pleadings is applied, and that if this requirement is not complied with, then the manner in which discretion is exercised would be contrary to law. I would like, at this time, to pursue this interrelationship a little further. Ascertainment of facts constituting a criminal offense rests in the act of search and discovery of truth as a matter of historical facts, but it cannot be deduced immediately from this alone that "there is no room for judicial discretion in the matter of fact finding." Unless human intelligence advances to such an extent that any historical event (it could be any given segment of recent past) can be reproduced accurately at will by a sure, scientific process, such as by use of a precision machine, and as long as the trial must be conducted by judges according to the system of trial by evidence currently in force, whether it be evidence to be derived from a person or from a physical object, aside from the question of competency, evaluation of evidence (where there is no question of violation of the rule of experience involved) in its ultimate analysis must be left to the discretion of judges. As long as the evaluation of evidence is within the discretionary power of the judges, the fact finding, which must of necessity rely upon the process of trial by evidence, in which the truth is to be discovered through evaluation and selection of evidence should also be left to the discretion of the judges. The common saying that fact finding belongs to the exclusive domain of the trial court, indeed, has its source in this state of affairs. The view that fact finding is a search for truth and therefore is a matter beyond judicial discretion is an argument which confuses the means and the ends. The primary objective of fact finding is the ascertainment of truth, but the means by which this objective is to be attained is through evidence; in order to discriminate proper evidence, it is necessary that each piece of evidence be evaluated, and in evaluating evidence it is necessary that judges exercise their discretion. Under the system of trial by evidence currently in force, it is clear that the entire process of fact finding is left to the discretion of the judges, as long as they do not violate the rule of experience and of competency of evidence.

In the same manner, the determination of the amount of penalty to be imposed is also left to the discretion of judges. The ends to be accomplished by fact finding and in determining the amount of penalty, of course, differ basically from one another, but in both instances they not only depend upon the discretion of the judges, but that discretion is also based upon the evaluation of the attending evidence in the same manner. (The only difference between the two is that under the existing criminal procedure, the determination of evidence required for the ascertainment of criminal facts must be referred to the decision of the court; whereas, in determination of the amount of penalty, such process is not required.) Furthermore, in both cases, discretionary power of the judges must be exercised through the process of evaluation of evidence on the basis of direct inquiry and oral pleadings, which constitute the basic tenet of the modern criminal procedure, and as a rule exercise of such discretion cannot be permitted in the evaluation of evidence only by going through the trial records. This is precisely what is meant by Article 31 of the Constitution. The Constitution also protects the fundamental principle of the modern criminal procedure, the principle of direct inquiry and oral pleadings which has been firmly established through many years of human endeavor and experience. The right of individuals that they be punished only in accordance with due process of law is also protected as a part of their basic human rights. Evaluation of evidence through the process of direct inquiry and oral pleadings often differs from that which is done merely by examining the documents. For instance, where inquiry is conducted by examining a witness in person, the judges have the benefit of closely observing the witness's facial expression, reaction, tone of voice, general attitude and demeanor, and evaluate the substance of testimony accordingly. Therefore, the judges may find falsehood even in the testimony which may appear logical and well organized and given little credence thereto; or they may consider a testimony completely trustworthy and credible even if it is incoherent, changing with question, and uncertain in spots. In these situations judges are able to ascertain truth and veracity from a living testimony. However, if judges are to evaluate evidence only from a written record on appeal, they are forced to draw conclusions from inanimate statements, with a result that more credence will be given to that which is written logically in good order and give little credence to that which is changeful and vacillating. Herein lies the reason, a creation of human intelligence, why direct inquiry and oral pleading is necessary in fact finding in a trial, particularly in a criminal trial.

THE SUPPLEMENTARY OPINION OF JUSTICE SHUNZO KOBAYASHI IS AS FOLLOWS:

I am convinced that there are certain errors committed by the court of previous instance in its procedure, but this error has not been pointed out in the opinion of this court set forth above. Therefore, although I go along with the majority opinion, I wish to add my separate opinion herewith.

It is my belief that the procedure of the appellate court, in so far as it is applied to the accused Hitoshi ITO is contrary to law. This accused was declared not guilty by the court of original instance, but this decision was reversed by the appellate court; and he was found guilty only on the basis of trial record, without examining any facts and without even giving him an opportunity to explain himself. Such procedure cannot be permitted under the Code of Criminal Procedure when the accused is to be found guilty for the first time upon appeal; and it also violates the purport of the decision of the Grand Bench to be cited hereinafter. In the substance of the appellate briefs, however, there is no contention made on this point. Therefore, the reason why this point was not considered by the majority opinion may be that it was felt that there was no need to adjudicate the point and not that the procedure applied by the court of previous instance was approved. Be it as it may, it is my opinion that the decision does contain this serious error, and the court should have taken up this matter ex officio (as per Article 411 of the Code of Criminal Procedure) and decided this point even though the conclusion was the same as the one given in the text of this case.

If it is to be admitted, for the purpose of argument, that the majority opinion stands on the premise that the procedure of the previous court was proper, the true import of this court may be that facts sufficient to constitute the criminal offense charged against the accused were already established subjectively by the court of original jurisdiction; and if the court of the second instance on appeal were to recognize the existence of criminality on the basis of the fact so found, it would not be contrary to law to pronounce the accused guilty only by reviewing the records of trial; and therefore the second case of the Grand Bench referred to hereinabove does not include the situation such as the one presented in this case. However, it is my interpretation that when the court of first instance finds the accused guilty, no matter in what stage of fact finding process it happens to be, it cannot be regarded as being clearly establishing "facts constituting criminal offense" after applying the minimum standard of "strict proof" rule as required in the criminal trial for the finding of guilt. For instance, like in a situation in which the decision of not guilty was rendered simply as a result of mistake, either in the interpretation of the provisions of the law or in its application, and the conduct of the accused was recognized as constituting a mere subjective fact, it may be stated, depending upon the point of view that a "subjective fact" was clearly established by the court of first instance. Even in such a situation, my opinion is that "the facts constituting criminal offense" has never been established. Human conduct differs materially from that of the simply physical world in that it all relates to conscious volition of men. Especially in this particular case, since the court of previous instance demanded the existence of "criminal intent" different from that which was required by the court of the first instance, it is only natural that in the process of fact finding, the court should conduct its own investigation in a very strict manner. (I will dwell upon this point further later.) Even after it has ascertained the extrinsic existence of the necessary facts, the court should inquire into the reasons which would obviate the existence of illegality, probe the matter thoroughly from all angles, and finally go into the question of extenuating circumstances. The court then, and only then, would enter a verdict of guilty accompanied by a concrete penalty to be imposed. Consequently, in this particular case, where the court of first instance has already denied the existence of facts in support of the allegations as to the accused ITO, it could naturally be assumed that that court did not take into consideration and probe the reasons which would obviate the existence of possible illegal elements. Under such circumstance, if it is to be interpreted that the court of second instance, in entering the verdict of guilty, can do so only on the basis of review of trial records, without going into these matters, then we would, in effect, be condoning a judicial system and criminal procedure which would not probe into these important matters. It is needless to say that such a system is clearly contrary to reason.

In this particular case, the court appeals overruled the views of the trial court as being erroneous and determined that the translated work itself was obscene literature within the meaning of Article 175 of the Penal Code. The court of previous jurisdiction also regarded that the fact that the translated work did in fact contain descriptions of sexual acts as alleged and that the sale and distribution of the product was accomplished with conscious knowledge were sufficient to warrant the conclusion that there did exist criminal intent necessary to constitute the offence of sale of obscene literature, so far as the accused Hitoshi ITO was concerned. And referring to the evidence adduced by the trial court as contained in the records of trial, the court adjudicated that there was adequate evidence to establish criminal intent and that there was nothing to prevent the findings that there was a mutual understanding between him and the accused Kyujiro KOYAMA for joint venture and division of labor. Since, however, the court of first instance proceeded on the assumption that although the translation at hand cannot be regarded as obscene in itself, it could be obscene in certain interrelationship, and held as to accused ITO that, "It must be interpreted that in the contemplation of law, it failed to create a situation mentioned heretofore or to utilize such situation, therefore, he cannot be regarded as an accomplice within the purport of the Penal Code. "In view of this, from a legal point of view, the criminal intent required by the court of first instance, substantially differed from that required by the appellate court; consequently, the court of first instance did not conduct investigation into "the facts constituting a criminal offense," intended by the court of previous instance. Of course, the parties and the objective facts involved are exactly the same, and it is only natural that various items of facts would overlap in certain respects; but the main problem involved is the question of criminal intent which must be found by the court of appeal on its own, and the court of appeal must itself determine the question of guilt based upon the existence or non-existence of such intent. Accordingly, it is necessary that the court of appeal conduct its own investigation in order to satisfy its own requirement, and then only, can it pronounce the verdict of guilty upon the accused. The trial court has conducted investigation of "facts constituting a criminal offense," and after arriving at a negative conclusion pronounced the accused not guilty. If the appellate court is to adopt the facts discarded by the trial court and use the same as the basis for the finding of the verdict of guilty, it cannot escape the criticism of treating the acts of human on the same basis as the external facts of inanimate beings. The principle enunciated by the Grand Bench of this Supreme Court in the second case cited in the main opinion, to wit: when the court of first instance pronounces a verdict of acquittal, the court of second instance may not quash the first decision and enter its own verdict of guilty without conducting a fact finding of its own was, of course, intended to cover situations such as the one presented here; and there is no basis for the interpretation that this case should be treated as an exception. In view of the foregoing, the decision of the appellate court should be interpreted as being contrary to the principle set out in the decision of the Grand Bench. (Case No. 2436, (a) 1952, decided on 18 July 1956, Reference page 1147, No. 7, Volume 10, Collection of Decisions; Case No. 5877, (a) 1952, decided on 26 September 1956, Reference page 1391, No. 9, Volume 10, Collection of Decisions.)

In addition to the foregoing, I would like to point out the fact that there is an undeniable error of law in the procedure in regards to the amount of penalty as applied by the court of previous instance. The court of first instance returned the verdict of acquittal in so far as it concerned accused Hitoshi ITO, and naturally there was no need for the court to, and the court in fact did not, go into the question of mitigation at all. In spite of the fact that the court of second instance took a different view on the question of obscene literature and the existence of the offense of sale of obscene literature, it simply declared the accused guilty only on the basis of matters investigated by the trial court as shown in the records, without conducting any inquiry of its own regarding extenuating circumstances. As a matter of fact, the court did not even hear the opinion or explanation of the accused himself. Furthermore, the court of second instance indicated that since the translated work in question was intrinsically obscene, the trial court by taking a different view, had already committed an error in that it predicated the fact finding on the wrong premise. The court indicated that whether the accused was or was not aware of the translated work had nothing to do with the determination of accused ITO's criminality, but that it did have some bearing upon the question of mitigation, and that the trial court has committed an error in the finding of facts which would influence the judgment of the court in its final analysis; yet, the appellate courts went on to make a decisive finding that accused Hitoshi ITO must of necessity have understood the obscene nature of his work. This finding seriously aggravated the position of the accused. All these were accomplished only on the basis of written records without undertaking any investigation of its own. I cannot find any basis for ruling that only in cases where the court of second instance renders a decision of guilty an arbitrary treatment can be permitted in disposing of the question of mitigation. I do not deny that the question of mitigation may be adjudicated to a certain extent only on the basis of written records; but what is most important in this matter is for the trial judge to personally, by use of his own faculties and senses, listen to the statements and explanations of the accused, and analyse and determine the credibility of his realistic, living testimony. Indeed, herein lies the significance of the process of direct, oral inquiry. If we were to stand on the premise that where the verdict of guilty is to be rendered for the first time at the second instance, the question of mitigation may be decided only on the basis of materials contained in the written records, we would be encountering a situation in which there has been no attempt made to find extenuating circumstances at the original instance as indicated hereinabove, and we would be forced to acknowledge a procedure in which the second instance may enter a verdict of guilty without going into the question of mitigation. No argument is necessary to point out that such a situation is most unreasonable. If in an attempt to justify this unreasonableness, we were to take a position that the second instance trial is merely a hearing after the fact, or that the judges of the second instance courts are capable of adjudging the question of mitigation adequately only on the basis of written records, it would only mean sacrificing of important principles of criminal process for the sake of simplifying the trial procedure, and assessing of undue special superior quality in the judges of the second instance courts as to their ability to render judgment. Such an attitude is completely hypocritical to say the least. To carry it to its logical conclusion, we would be admitting that ours is a system in which a criminal penalty may be imposed, without affording the protection guaranteed under Article 31 of the Constitution.

As explained hereinabove, the procedure applied by the court of previous instance is illegal. However, neither the accused nor their attorneys have contested these points in their appellate briefs. In view of the situation, it must be concluded that they had no objection regarding these points. According to my personal opinion, these illegalities are also contrary to the precedents established by the Grand Bench, and it may be proper for this court to go into these points ex officio (Article 411, Code of Criminal Procedure) and render judgment accordingly. However, considering the attitude of the accused as perceived from the appellate briefs and the indications appearing in the decision of the previous court, it seems that in the final analysis no substantial injustice would result even if the previous judgment is not reversed. Therefore, I concur with the text of the judgment of this court which rejected the appeal.

Reference is also made at this time to my opinions expressed in the decision of No. 3 Petty Bench, 8 June 1954 (Page 821, No. 6, Volume 8, Collection of Decisions) and Grand Bench Decision, 22 June 1955 (Page 1219, No. 9, Volume 9, Collection of Decisions).
(This translation is provisional and subject to revision.)