1963.10.17

1960 (A) 1378

Keishu Vol.17, No.10, at 1795

Judgment on the significance of hearsay statements

Dismissed Type of court, decision: First Petty Bench, judgment

Sapporo High Court

1) Facts found on the basis of evidence may serve as evidence of other facts.

2) Whether or not a hearsay statement is involved should be determined on the basis of the relationship between the facts to be proved and the perception of the declarant. In the case where the fact that A has made specific expressions itself stands in need of strict proof,, the statement of B, who has become directly aware of these expressions, does not constitute a hearsay statement, although in the case where a fact that tallies with the content of the statement made by A stands in need of strict proof, the statement of B, who is directly aware only of the expressions and not of the facts in need of strict proof, does constitute a hearsay statement.

3) Even if it is unclear as to whether the out-of-court declarant of a hearsay statement which satisfies the conditions provided for in Article 324, paragraph 2 and Article 321, paragraph 1, item 3 of the Code of Criminal Procedure is A or B, this does not mean that the hearsay statement is inadmissible as evidence on these grounds alone.

Full text (original text)

Judgment

With regard to the judgment given by the Sapporo High Court on May 31, 1960 in connection with a case of murder, etc., an appeal was received from defendant X1 and the defendant's counsel at the original court, Shun'ichi Suginohara. The judgment of this Court is as follows.

The appeal shall be dismissed.
Of the period spent by the defendant in detention on remand, credit shall be given for 700 days, which shall be included in the sentence.

1. Concerning the first point in the grounds for acceptance of the appeal submitted by defendant X1

When considering the allegation that the defendant X1 has had to endure an unjustly prolonged term of detention as he was subject to trial and that the original judgment is in violation of Article 38 of the Constitution, judicial precedent in this Court indicates that the question of whether detention was unjustly prolonged or not must be decided in accordance with the actual details of the case (see 1947 (re) No. 30, , judgment of the Grand Bench of February 6, 1948, Keishu Vol. 2, No. 2, p. 17; 1951 (re) No. 2518, judgment of the Grand Bench of April 6, 1955, Keishu Vol. 9, No. 4, p. 663). Looking at the records of the instant case, defendant X1 was arrested on October 29, 1952 in connection with the crime of violating the Explosives Control Act, was detained on November 1 that year, and was indicted for this crime on November 19 the same year. Thereafter, he was indicted on several more counts, and the final indictment on the count of murder took place on August 16, 1955. After 91 hearings at the court of first instance, a judgment was rendered on May 7, 1957. An appeal was made the same day, after which the original court held hearings on 39 occasions, delivering a judgment on [?month] 31, 1960. It is evident that defendant X1 was held in detention for approximately seven years and eight months until the judgment of the original court was pronounced.

Then, considering the scale and complexity of the whole range of facts involved in the instant case that can be seen through all of the records, the difficulties involved in the investigations and trials , the risk of defendant X1 absconding or destroying evidence, the fact that several people with possible connections went missing after the murder incident, and other aspects of the special nature of the instant case as pointed out in the original judgment, it cannot be said that the detention occurred over an unjustly prolonged term in light of the afore-mentioned judicial precedent in this Court.
The argument for appeal is unacceptable.

Next, considering the argument submitted by X1 that the prohibition placed on defendant X1 from being interviewed by a lawyer and the delay in the indictment represented violations of the Constitution, this is in essence no more than an allegation of violation of law other than the Constitution and therefore does not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (As mentioned above, considering the exceptional circumstances involved in the instant case, the judgment of the original court that these measures were necessary and unavoidable should be regarded as correct and appropriate.)

Next, considering the argument in the grounds for acceptance of appeal that the transfer of defendant X1 to Tomakomai District Police Station constituted a deprivation of the right of defense as guaranteed by the Constitution, this is in essence no more than an allegation of violation of laws other than the Constitution and therefore does not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (The records show that the defendant was transferred from the police jail at Sapporo Chuo Police Station to the police jail at Tomakomai Police Station on March 1, 1953, from the police jail at Tomakomai Police Station to the police jail at Sapporo Chuo Police Station on August 28, 1954, and from the police jail at Sapporo Chuo Police Station to Odori Detention Center on July 22, 1955.
However, these transfers were not effected with the aim of restricting the right of defense, but were necessitated in order to prevent the destruction of evidence by means of conspiracy. As indicated in the original judgment, these transfers also occurred because of the inadequate capacity of the place of confinement to hold the persons confined and the inadequacy of the physical facilities, such circumstances making it necessary to split up the persons confined and on occasions transfer them elsewhere, and on these grounds the argument in the appeal is unacceptable.)

Further, considering the argument in the grounds for acceptance of appeal that the defendant was compelled to make a confession, since it is impossible to discover in the records any suggestion that the defendant was coerced compelled to provide incriminating statements against himself as provided for in Article 38 of the Constitution, the argument in the grounds for acceptance of appeal lacks a fundamental premise and therefore is unacceptable.

Some of other arguments allege violation of the Constitution, but in essence they all constitute allegations of errors of fact-finding and/or mere violation of laws other than the Constitution and do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.

- Concerning the second to fourth points in the grounds for acceptance of appeal submitted by defendant X1

The allegation of infringement of judicial precedent contained in the argument in the grounds for acceptance of appeal cannot be recognized as adequate grounds for acceptance of appeal in that there is no specification of which judicial precedent is supposedly being infringed. (See the analysis given with regard to the grounds for acceptance of the appeal submitted by defense counsel Morio Aoyagi in connection with the fact that the original judgment does not contradict the judgments of the Grand Bench (1954 (a) No. 1056, May 28, 1958, and 1954 (a) No. 1671, August 10, 1959.) Some other arguments include assertions of violation of the Constitution, but in effect they amount to allegations of errors of fact-finding and/or mere violation of laws other than the Constitution and do not constitute grounds for acceptance of appeal under Article 405 of the Constitution. (The facts found in the original judgment can all be affirmed on the basis of the quoted evidence, and no errors of fact-finding as alleged in the argument in the grounds for acceptance of appeal can be found in the original judgment, and there is no illegality as regards infringement of rules based on empirical facts, rules for the adoption of evidence, and other assertions of illegality in the arguments for the appeal.)

2. Concerning No. 1 to No. 4 in Part 1 of the grounds for acceptance of appeal submitted by Shun'ichi Suginohara, defense counsel for both defendants

The arguments for the appeal allege errors of fact-finding and mere violation of laws other than the Constitution and do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (There is nothing in the records to cast doubt on the voluntary nature and trustworthiness of the testimony of witness Naomichi Sato presented as evidence before the court of first instance (Exhibits Nos. 20, 37, 222, 225, 236, 241), the testimony of witness Oihira presented as evidence before the court of first instance (Exhibits Nos. 46, 233, 237), the testimony of witness Tomohiko Takayasu presented as evidence before the court of first instance (Exhibits Nos. 223, 228, 238, 240), and the testimony of defendant X2 contained in the written statements given to public prosecutor Tetsuo Kubo (Exhibits Nos. 230, 231). In addition, summing up the individual items of evidence quoted as evidence in 2.
7) of the judgment of the court of first instance (with regard to the bullets referred to in Exhibits Nos. 206 to 208, see the explanation of the first point of the grounds for acceptance of the appeal of defense counsel Yugoro Kamata), the finding of the following facts by the original court is affirmed, namely: the fact that a sit-in incident occurred at the Sapporo City Hall on December 27, 1951 in connection with collective bargaining involving the Free Labor Union and Tomiyo Takada, Mayor of Sapporo, as a result of which about ten party members belonging to the Sapporo Committee were apprehended by police officers under the direction of Kazuo Shiratori, head of the Security Division of Sapporo City Police, were taken to Sapporo District Public Prosecutor's Office and were interrogated by Chifuyu Shionoya, public prosecutor at said office, whereupon the defendant X1 made a charge of unjust oppression and attempted to stir up the so-called "anti-fascist struggle" with the targets being Mayor Takada, Division Head Shiratori and Public Prosecutor Shionoya, and, taking advantage of this opportunity, determined to kill Division Head Shiratori, whereupon five members of the Self Defense Group of Chukaku Sect Tomoya Tsuruta, Noboru Obayashi, Shigeru Kadowaki, Kazuhiko Takayasu and defendant X2, who were then on dispatch in connection with farming village work, etc., in farming villages being opened up in the Chitose-machi district, were summoned back to Sapporo by Hitoshi Shishido, whereupon they conspired with Hitoshi Shishido and gathered in a room belonging to the Association of Democratic Scientists in the Students' Building within the precincts of Sapporo University on December 29 of the same year, thereafter transferring to the home of Hajime Kadowaki at Nishi 13-chome, Minami 9-jo, Sapporo City and, as the persons responsible for the afore-mentioned sit-in incident at Sapporo City Hall, they launched the so-called "anti-fascist struggle" against the three individuals Mayor Takada, Public Prosecutor Shionoya and Division Head Shiratori, whereupon defendant X1 instructed them, gaining their agreement, to attack and throw rocks against the homes of Public Prosecutor Shionoya that night and of Mayor Takada on the evening of New Year's Eve, and, having carried out a careful investigation, once the New Year had begun to carry out a thorough attack on Division Head Shiratori, secretly divulging his plan to kill Division Head Shiratori, following which the five persons including the afore-mentioned Tomoya Tsuruta were summoned to the room of Noboru Obayashi in the northern dormitory of Hokkaido University located at Nishi 2-chome, Kita 14-jo, Sapporo City together with Hitoshi Shishido on or around January 1, 1952, where discussions were held concerning the dispatch to police officers of a written declaration indicating the intention to prepare direct attacks on fascist police officers, in addition to which the five persons including the afore-mentioned Tomoya Tsuruta were summoned from around 9:00 a.m. on January 4 together with Hitoshi Shishido to the residence of the afore-mentioned Hajime Kadowaki or the residence of Toshi Terada at Nishi 16-chome, Minami 4-jo, Sapporo City, where they were told that a pistol was to be used as the means for killing Division Head Shiratori, whereupon they were instructed to begin an immediate investigation into the movements of Division Head Shiratori, to which they agreed, following which defendant X1 referred to his intention to carry out the murder if a favorable opportunity presented itself, and obtained the understanding of the other individuals, whereupon defendant X1 conspired with Hitoshi Shishido to murder Division Head Shiratori and, in order to facilitate the murder of Division Head Shiratori, the afore-mentioned five members including Tomoya Tsuruta began to investigate the movements of Division Head Shiratori, and it was at around this time that defendant X1 conspired with Hitoshi Shishido, informing Hiroshi Sato, a former worker, of the plan to kill Division Head Shiratori, whereupon he was added to the group comprising five persons including the afore-mentioned Tomoya Tsuruta to form part of the investigation group together with Hitoshi Shishido and, with Hitoshi Shishido as leader of the group, he was charged with taking control over the whole range of investigation activities, with reporting to defendant X1, and with liaison work, while the other members of the group were divided into two sections, one consisting primarily of Tomoya Tsuruta, Noboru Obayashi and Hiroshi Sato, who kept watch on the vicinity of Sapporo City Police Headquarters, located at Nishi 5-chome, Kita 1-jo, Sapporo City, while the other group, consisting of the three members Shigeru Kadowaki, Tomohiko Takayasu and defendant X2 kept watch on the vicinity of the home of Division Head Shiratori, located at Nishi 23-chome, Minami 9-jo, Sapporo City, and, as a result of keeping close watch on and tailing Division Head Shiratori throughout the day, they investigated the times he arrived at and left work, the vehicle he used, the path he traveled, whether or not anyone accompanied him as he traveled, where he stopped off, etc., and the results of this investigation were notified to defendant X1 through Hitoshi Shishido on each occasion, with all the members of the group working together to engage in investigation activities on the basis of close liaison, in consequence of which, on January 16 or 17, when the purposes of the investigation had provisionally been achieved and the group had gained a general idea of the movements of Division Head Shiratori, defendant X1 stated that there was a danger of their plan being found out if the investigation activities were continued by the whole group together, in consequence of which it was decided that the investigation activities by Noboru Obayashi, Shigeru Kadowaki, Tomohiko Takayasu and defendant X2 should be suspended, and that Hitoshi Shishido, Hiroshi Sato and Tomoya Tsuruta would realize the afore-mentioned plan, but in the meantime defendant X1 and Hitoshi Shishido chose Hiroshi Sato as the individual who would actually execute the murder of Division Head Shiratori, such being the sequence of events involving conspiracy with Hiroshi Sato and Tomoya Tsuruta to murder Division Head Shiratori in Sapporo City; the fact that on the basis of the afore-mentioned conspiracy, Hiroshi Sato awaited an opportunity to carry out the murder with a Browning pistol in his possession, and, as he did so, he found Division Head Shiratori riding on his bicycle in the vicinity of Susukino in the city of Sapporo on January 21, and tailed the bicycle with the intention of carrying out the deed, and, after temporarily losing sight of the bicycle, he found it again and tailed it on his own bicycle, and, upon arriving in the vicinity of the residence of Jutaro Miwasaki, located at Nishi 16-chome, Minami 6-jo, Sapporo City, at 7:42 or 7:43 p.m. that day, he aimed the Browning pistol at Division Head Shiratori and fired two consecutive shots, one (Exhibit No. 206) striking in the vicinity of the rib (11) on the left of the spinal cord bone at the center of the back, in consequence of which Division Head Shiratori shortly thereafter died on the spot through loss of blood caused by rupture of the intercostal artery, as a result of which the purpose of the murder was realized; and the fact that defendant X2 received instructions from defendant X1 as mentioned above, and, while aware of the intention of carrying out the murder of Division Head Shiratori, investigated the movements of Division Head Shiratori and gave assistance by facilitating the act of murder committed by Hiroshi Sato, etc., against Division Head Shiratori. A study group was held employing a text entitled Soshiki to senjutsu (Organization and Tactics) from between around 10:00 a.m. and the evening on January 4, 1952 at the home of Naomichi Sato, located at Nishi 25-chome, Minami 4-jo, Sapporo City, and defendant X1 and Hitoshi Shishido were both present throughout this meeting, as was found in the original judgment, but on the basis of the facts found by the original court, the original judgment that it would not have been impossible for defendant X1 and Hitoshi Shishido to have met with five persons including Tomohiko Takayasu from around 9:00 a.m. on the same day at the afore-mentioned home of Hajime Kadowaki or the home of Toshi Terada and then to have arrived at the house of Naomichi Sato by just after 10:00 a.m. should be upheld, and the alibi of defendant X1 to the effect that he attended the Soshiki to senjutsu study session on January 4 and would have been unable to take part in the meeting to order the start of investigation activities, etc., is unacceptable.

- Concerning No. 1 in Part 2 of the grounds for acceptance of appeal submitted by Shun'ichi Suginohara, defense counsel for both defendants

The argument for acceptance of the appeal alleges that the theory of co-conspiracy affirmed by the original judgment constitutes a violation of Article 31 of the Constitution, but since once it has been found that there has been participation in a conspiracy such as is necessary to find the fact of being co-conspirator to a crime, even a person who has not directly taken part in the execution of the crime bears criminal liability as co-principal, in the sense that he may be said to have committed the crime using the actions of another person as his means for so doing. Such an interpretation does not violate Article 31 of the Constitution. This is the judicial precedent of this Court (1954 (a) No. 1056, May 28, 1958 judgment of the Grand Bench, Keishu Vol. 12, No. 8, p. 1718), and the argument is therefore unacceptable. The other arguments are mere allegations of violation of laws other than the Constitution and do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (That it is not necessary to indicate specifically all the details of time, place and content regarding a conspiracy in order to substantiate the crime of co-conspiracy is clear from the afore-mentioned judgment of the Grand Bench. In connection with the instant case of murder, the original judgment was able to substantiate the time, place and content of the conspiracy based on a summary of admissible evidence that had been duly tested by examination on the basis of the stipulations of the Code of Criminal Procedure, and there are no grounds for considering it to have been unlawful in the light of judicial precedent.)

- Concerning No. 2 in Part 2 of the grounds for acceptance of appeal submitted by Shun'ichi Suginohara, defense counsel for both defendants

Arguments Nos. 1 and 2 allege that the Ordinance on the Control of Groups, etc. (Government Ordinance No. 64 of 1949) is the so-called Potsdam Order instituted on the basis of Imperial Edict No. 542 of 1945, that it constitutes a violation of Article 98, paragraph 1 of the Constitution, that it therefore lost its force after the Peace Treaty came into effect, and that, accordingly, paragraph 2 of Law No. 81 of 1952, which stipulates that said ordinance will remain in effect for a specific period after effectuation of the Peace Treaty, and Supplementary Provision paragraph 3 (the argument refers to Supplementary Provision paragraph 1, but this may be assumed to be an error for Supplementary Provision paragraph 3) in the Subversive Activities Prevention Act (Law No. 240 of 1952), which provides for the application of criminal penalties as before even after abolition of the Ordinance on the Control of Groups, etc., similarly constitute violations of the Constitution and are void.

However, judicial precedent in this Court deems that Imperial Edict No. 542 possessed legal force unconnected with the Constitution of Japan and outside the Constitution before effectuation of the Peace Treaty (1949 (re) No. 685, April 8, 1953 judgment of the Grand Bench, Keishu Vol. 7, No. 4, p. 775).
Accordingly, the Ordinance on the Control of Groups, etc., enacted on the basis of Imperial Ordinance No. 542 must also be described as having possessed legal force outside the Constitution previous to effectuation of the Peace Treaty.

According to the judgment of the court of first instance upheld by the original judgment, the defendant carried out the substantiated acts between January 22 and 27, 1952, encouraged tendencies advocating methods based on the principle of violence, and performed acts intended to legitimate this principle, on which grounds he is being punished after effectuation of the Peace Treaty in accordance with Article 2, item 7 and Article 3 of the Ordinance on the Control of Groups, etc. And, since the provisions of the Ordinance on the Control of Groups, etc. are not incompatible with the purport of the Constitution of Japan, which is based on the principles of peace and democracy, they do not violate Article 98, paragraph 1 of the Constitution, and they did not lose force upon effectuation of the Peace Treaty. Therefore, the fact that paragraph 2 of Law No. 81 of 1952, which stipulates that said ordinance will remain in effect for a specific period after effectuation of the Peace Treaty, and Supplementary Provision paragraph 3 in the Subversive Activities Prevention Act, which provides for the application of criminal penalties as before even after abolition of the Ordinance on the Control of Groups, etc., do not violate the Constitution is clear from judicial precedent in this Court (1957 (a) No. 2, judgment of the Grand Bench of December 20, 1961, Keishu Vol. 15, No. 11, p. 2017). The argument is therefore unacceptable.

Argument No. 3 alleges that the provision concerning the principles of violence referred to in Article 2, item 7 of the Ordinance on the Control of Groups, etc. is too vague and that the standards for assessing a crime are liable to be influenced by a judge's own subjective viewpoint, meaning that this constitutes a violation of the freedom of thought and speech guaranteed by the Constitution and of the principle that what acts constitute crimes and what penalties are applied to them should be specified in advance in statutes, but the provision of Article 13, item 1 of the Ordinance on the Control of Groups, etc. stipulating the punishment of any person who violates the provisions of the latter clause of Article 2, item 7 and Article 3 of said ordinance does not contravene the principle that what acts constitute crimes and what penalties are applied to them should be specified in advance in the statutes, and that it does not infringe upon freedom of thought or of speech has already been shown on the basis of judicial precedent, and the argument is therefore unacceptable.

Argument No. 4 merely alleges violation of laws other than the Constitution and this does not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.

3. Concerning the first point in the grounds for acceptance of appeal submitted by Yugoro Kamata, defense counsel for both defendants

The argument alleges errors of fact-finding and mere violations of laws other than the Constitution that do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (The fact that the bullet, Exhibit No. 206, was the one removed and kept in custody on the occasion of the autopsy conducted on the body of Division Head Shiratori on January 22, 1952 is clear from the written expert opinion dated February 28, 1952 of Doctor Makoto Watanabe (Exhibit No. 216 of the court of first instance) and the custodial records dated January 22, 1952 prepared by prosecutor's secretary Kazue Ogawa (Exhibit No. 221 at the court of first instance), and the fact that the bullet, Exhibit No. 207, is the one found and seized at a position one centimeter below corroded soil consisting of fallen leaves when a search was conducted over an area generally known as the Takinosawa Mountain Pass on the southeastern slope of the Horomi Pass in Sapporo City on August 19, 1953, is clear from the inspection and search record dated October 15, 1953 prepared by the public prosecutor Hajime Takagi (Exhibit No. 47 of the court of first instance), the seizure record dated October 15, 1953 prepared by the public prosecutor Hajime Takagi (Exhibit No. 48 of the court of first instance) and the testimony contained in the records of the 19th hearing of the court of first instance of witness Tomohiko Takayasu (Exhibit No. 40 of the court of first instance), and the fact that the bullet, Exhibit No. 208, is the one found and seized at a position about two centimeters beneath corroded soil when a search was conducted in a mountainous, forested area on April 30, 1954 is clear from the record of search and seizure dated May 31, 1954 prepared by the public prosecutor Hajime Takagi and three others (Exhibit No. 49 of the court of first instance). And, summarizing all evidence, namely the record of the statement of the afore-mentioned witness Tomohiko Takayasu, the 13th statement presented by defendant X2 to the public prosecutor Tetsuo Kubo on October 13, 1953 (Exhibit No. 43 of the court of first instance) and one leaf of the illustration attached at the end of this deposition (Exhibit No. 44 of the court of first instance), the statement provided by witness Tomohiko Takayasu contained in the records of the 12th and 14th hearings of the court of first instance (Exhibit No. 64 of the court of first instance), the statement provided by witness Yukio Kiyono contained in the records of the 5th hearing of the court of first instance (Exhibit No. 65 of the court of first instance), and the hand grenade held in custody (Exhibit No. 67 of the court of first instance), etc., the original judgment found that the two bullets, Exhibits Nos. 207 and 208, had been fired when Tomohiko Takayasu and defendant X2 had been engaged in shooting practice and in tests on exploding hand grenades in the mountains at the afore-mentioned Takinosawa early in January 1952 and that both bullets had been left on the site until the time of their discovery. The finding of the facts in the original judgment may be affirmed in the light of the evidence presented. The argument asserts that, to judge from the state of corrosion of the two bullets, it was impossible that the bullet, Exhibit No. 207, had been abandoned on the site at Horomi Pass for one year and eight months and that the bullet, Exhibit No. 208, had been abandoned there for two years and three months.
However, to quote the results of the examination contained in the written expert opinion dated November 20, 1959 prepared by Professor Tsuyoshi Okamoto of Hokkaido University:

"1) The two bullets presented as Exhibits Nos. 207 and 208 had both corroded.

2) A. Places and extent of corrosion

Numbers will be attached for convenience to the individual parts of the bullets.

a) Inspection with the naked eye

There are considerable differences in the external appearance of Exhibits Nos. 207 and 208.

With the exceptions of parts (1) and (2), Exhibit No. 207 largely retains the metal gloss plating layer on most of its surface.

The metal gloss-plating layer can be seen only on part (3) of Exhibit No. 208, and almost no areas of metal plating remain on the other surfaces, most of which are bronze or brass in color.

b) Examination with an optical microscope

As regards Exhibit No. 207, tiny surface scratches can be observed on the plated layer, i.e. the parts where the plated layer still remains, and there is very little corrosion. There are virtually no surface scratches on the sections of the plated layer where peeling has occurred, and pit-shaped corrosion holes can be observed. In several places one can observe relatively shallow selective corrosion fissures on the crystallized grain boundary area of the base metal.

As regards Exhibit No. 208, there are pit-shaped corrosion holes on the peeled areas of the plated layer, i.e. on most of the surfaces, and in several places one can observe relatively shallow selective corrosion fissures on the crystallized grain boundary area of the base metal.

To judge from the results of the above inspection by means of optical microscope, no noteworthy differences were observed in the state of corrosion of Exhibits Nos. 207 and 208 in connection with areas where peeling of the plated layers had occurred.

B. Causes of corrosion

Metal corrosion is a phenomenon involving the oxidization of metal in the broad sense, and there are major differences in possibilities for the progress of corrosion depending on the type of metal and environmental conditions.

Even in the case of the same metal, the interaction of the state of the surface of the metal (e.g. the state of crystallization of the surface structure, contact with other metals, scratches involving impurities, mechanical warping, temperature, etc.) and corrosion-inducing environmental conditions (oxygen content, humidity, PH, temperature, fluidity conditions, presence of tiny quantities of impurities (e.g. ammonia, sulfur dioxide, hydrogen sulfide, chlorine ions, etc.), microorganisms, organic substances, etc.) has a subtle effect on the speed with which corrosive reactions take place, as has been shown in the past in many experiments involving the science of corrosion.

Accordingly, although a particular type of corroded metal may be shown, there is an enormous number of types of corrosive environment corresponding to this, and it is impossible to make any assumptions about the corrosive environment in which the metal was placed on the basis of the state of corrosion of the corroded metal or to determine the cause of corrosion.

Even in cases where the corroded metal and the corrosion environment are known, it is impossible to make assumptions about the length of time the metal has been left in the corrosive environment on the basis of the state of corrosion of the metal only."

On the basis of the above statement, the original court decided that it was not possible to deny the possibility that the bullets constituting Exhibits Nos. 207 and 208 had been buried and left at the place where they were found between around the beginning of January 1952 and some time between the end of August the following year and the end of April the year after that. It was decided that that this decision could not be influenced by the written expert opinion prepared by Associate Professor Seizo Nagasaki of Tohoku University on October 5, 1956 (Records Vol. 28, p. 11522), the record of the witness examination of Seizo Nagasaki by the judge appointed in the court of first instance (Records Vol. 36, p. 15614), the document dated February 11, 1957 entitled "Do no fushoku ni kansuru ni, san no jikken" (Several tests in connection with the corrosion of copper) written by Professor Shohei Miyahara of Hokkaido University (Records Vol. 29, p. 11867)), and the statement of witness Shohei Miyahara at the 35th hearing of the court of first instance (Records Vol. 36, p. 15672), and this Court also upholds this decision to have been correct.

Next, the written expert opinion dated November 1, 1955 of Professor Kosaku Isobe of the University of Tokyo (Exhibit No. 234) referred to Exhibit No. 206 as the first bullet, Exhibit No. 207 as the second bullet, and Exhibit No. 208 as the third bullet. According to the results of his examination:

"(1) The first to third bullets all possess virtually the same structure, having a length of between 11.5 and 11.7 millimeters, a diameter of between 7.80 and 7.84 millimeters, a capacity of between 4.52 and 4.59 grams, and specific gravity of 10.4. This indicates that all three bullets are cylindrical jacketed bullets with antimonial lead cores fired employing a gun with a right-rotating six-barrel chamber, and spiral grooves with an angle of inclination of 5.5 degrees.

(2) The first to third bullets show signs of six groove peak markings and groove base markings between them, while the second and third bullets show signs of friction on the head and in other areas that may be thought to have arisen at the time of penetration.
Corrosion caused by outside influences is particularly strong in the case of the outer surface of the third bullet, but details concerning the structure, type, name and features of the bullet in its original form are unclear.

(3) It is not possible to state with any degree of accuracy how long may have passed since the second and third bullets were fired.

(4) The gun used to fire the first to third bullets was either an automatic loading Browning pistol with a nominal bore of 7.65 millimeters or a pistol with similar spiral grooves and of the same type.

(5) As a result of comparing the marks left by the spiral grooves on the three bullets using a comparative microscope, extremely similar congruent points between first and second, first and third, and second and third were discovered. Having studied these points of congruence, if the first and the second bullets, and the first and the third bullets, had been fired from a different gun, there would be only the remotest possibility of such congruence appearing between marks left by the spiral grooves, the probability in fact being no more than 0.000000000001 at the maximum."

Professor Isobe goes on to make the following generalization:

"Generally speaking, there are not necessarily always the same marks on bullets fired with the same gun.
This is because there is a certain amount of tolerance in the bore when manufacturing both guns and bullets, and the area of contact is therefore not invariably the same. Also, in comparison with the length, contact with the inside of the gun is shorter in the case of bullets with a large diameter. The axis of the bullet enters the axis of the gun at an angle, and there is a tendency, albeit very slight, for the bullet to move forward with the head swinging around.
Accordingly, it may happen that, in the case of such a bullet, the groove peak markings on one side may be longer than those on the opposite side. The scratches on the inside of the barrel will be carved deeply in the form of long grooved striations, and they may appear very shallow or not appear at all on short grooved striations. There may also be parts where no contact whatsoever is made with the base of the groove, and rust, fruit , and metal particles left by the previously fired bullet, etc., may be removed every time the gun is fired or they may appear anew, meaning that striation may appear differently in each case.
It may also happen that abrasion marks arising on account of penetration may hide the striation or make it difficult to detect.

Accordingly, the fact that the striation is not the same cannot be taken as proof that the same firearm was not used. In comparison, the clearest evidence that the same firearm was used to fire a bullet is likely to come from detailed congruence between striations with clearly distinguishable features, although it cannot be said with total certainty that there is no chance that a bullet fired from a different gun will, not totally by chance, possess striation with the same external appearance.
Assessment of whether the same gun or a different gun was used to fire a bullet is a matter of supposition and needs to be expressed in terms of probability."

According to the afore-mentioned written expert opinion and the examination records of witness Takashi Isobe before the court of first instance (Exhibit No. 235), when conducting an inspection of the three bullets with the naked eye, inspection was conducted only on striations selected because of their similarity, and little attention was paid to whether or not there were dissimilar striations or the differences between them. Comparison between similar striations was based primarily on the width and length of the striations, and it may be recognized that the depth of the grooves was not measured. However, the original judgment decided that it was possible, according to the afore-mentioned written expert opinion and statement, to reach the conclusions indicated above in (1), (4) and the former clause of (5) even employing the examination method used by this expert, and this decision may be affirmed.
Accordingly, the judgment of the court of first instance added the written expert opinion of Takashi Isobe and the part of the examination record with the exception of the section bearing on probability calculation to the evidence quoted as proof of the facts referred to at the beginning of 2. 2) (2) and at (i) of the judgment, and found that the pistol used for shooting practice on the southeastern slope of Horomi Pass, which was covered by snow, at the beginning of January 1952 by Tomohiko Takayasu and others was the same pistol as that used by Hiroshi Sato to shoot and kill Division Head Shiratori on January 21. The fact that the original judgment upheld this conclusion can be approved also by this Court. Contrary to the arguments submitted by defense counsel Yugoro Kamata, there was nothing unlawful about the manner in which the original judgment adopted the evidence and no errors of fact-finding can be observed.

- Concerning the second point in the grounds for acceptance of appeal submitted by Yugoro Kamata, defense counsel for both defendants

The argument merely alleges violation of laws other than the Constitution and this does not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (Looking at the records, as indicated in the original judgment, there is nothing about the psychological state of defendant X2 in October 1953, when each statement presented by defendant X2 to the public prosecutor and quoted as evidence in the original judgment was prepared, to suggest that there was anything out of the ordinary that might give rise to doubt about the voluntary nature of this statement, nor is there anything to indicate that this statement was made under the improper influence of a public prosecutor.)

4. Concerning Items Nos. 1 to 3 of Part 1 in the grounds for acceptance of appeal submitted by Hitoshi Fukushima, defense counsel for the two defendants

The allegation is that the investigation conducted in the instant case contradicted the principle of equality under the law, discriminated against members of the Communist Party solely on the grounds of their beliefs, and violated freedom of association and thought, and in these respects that it violated Articles 14, 19 and 21 of the Constitution, and that the original judgment in line with the prosecution proposal based on such investigation should therefore be reversed. However, since several members of the Communist Party of Japan were involved in each of the crimes, it was unavoidable that several party members should have been apprehended and interrogated. There is nothing in the records to indicate that, as alleged in the argument, the investigation in the instant case involved discrimination against members of the Communist Party on the grounds of their political convictions or that their freedom of association and thought was infringed. Accordingly, the argument lacks its premise and is therefore unacceptable.

The other arguments are essentially the same as those submitted in Items (4) to (11) of the first point in the grounds for acceptance of appeal by defense counsel Hitoshi Fukushima, and decisions in this regard will be given later in connection with Items (4) to (11).

- Concerning Item No. 4:

The argument alleges that the arrest and detention on several occasions of defendant X1 was carried out with the intention of gaining time for indictment in connection with the so-called Shiratori Case, which stands at the core of the prosecuted facts in the instant case, and that these were unlawful acts carried out on the basis of warrants issued in contravention of Article 199, paragraph 2 and Article 60 of the Code of Criminal Procedure and thus of Articles 31 and 34 of the Constitution. However, this argument merely alleges violation of laws other than the Constitution and this does not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (Contrary to the argument, the arrest and detention conducted in respect of defendant X1 cannot be deemed to have been an unlawful act in violation of the provisions of the Code of Criminal Procedure.)

- Concerning Item No. 5:

The argument alleges that the frequent transfer of defendant X1 from one police jail to another and his prolonged confinement in a substitute prison amounted to nothing short of holding in bondage and torture, and that the original judgment was in contravention of Articles 18 and 36 of the Constitution. However, this argument merely alleges violation of laws other than the Constitution and this does not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (The transfer of the defendant from one police jail to another can be affirmed as an unavoidable measure, and, in light of the content of the facts in the instant case, the confinement in respect of defendant X1 cannot be said to have been unjustly prolonged in duration, as is explained in the decision in respect to Item No. 1 in the grounds for acceptance of the appeal submitted by defendant X1 himself.)

- Concerning Item No. 6:

The argument alleges that the arrest and detention of defendant X2, as in the case of the arrest and detention of defendant X1, was in violation of Article 199, paragraph 2 and Article 60 of the Code of Criminal Procedure and of Articles 31 and 34 of the Constitution. However, this argument merely alleges violation of laws other than the Constitution and this does not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.
(Contrary to the argument, the arrest and detention of defendant X2 in the instant case cannot be deemed to have been unlawful or to have been conducted in violation of the provisions of the Code of Criminal Procedure.)

Next, the argument states that defendant X2 showed clear symptoms of mental abnormality and was arrested while recuperating at his home in Nagano. He was then taken to the police jail at Chuo Police Station in Sapporo, but the police authorities accorded him no opportunity for treatment, and his symptoms grew increasingly serious during his long period of detention, as the argument asserts. This is alleged to constitute a violation of Articles 40 and 43 of the Prison Law and of Article 31 of the Constitution.
However, this allegation amounts in essence to one of a mere violation of laws other than the Constitution criticizing the manner in which the defendant was treated in prison, and this does not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.
Next, the argument in the appeal alleges that the use as evidence in the original judgment of a confession taken from defendant X2 after he had been under unjustly prolonged detention constitutes a violation of Article 38 of the Constitution. However, the various statements provided by defendant X2 to the public prosecutor and used as evidence in the original judgment were all prepared in October 1953. It is clear from the records that the defendant was arrested in September of that year, and, in the light of the purport of a judicial precedent of the Grand Bench (Supreme Court 1947 (re) No. 30, February 6, 1948, Keishu Vol. 2, No. 2, p. 17) such a confession as contained in the deposition cannot be deemed to correspond to a "confession made after prolonged arrest or detention" as referred to in Article 38 of the Constitution. The argument is therefore unacceptable.

The argument then alleges that the statements of defendants X2 and Kazuo Takatsu taken as evidence by the original judgment were based on compulsion, torture and threat and that the original judgment therefore constitutes a violation of Articles 38 and 36 of the Constitution. However, since no evidence can be found in the records that these persons were subjected to compulsion, torture and threat, the argument lacks any premise and is unacceptable.

The argument also alleges that Naomichi Sato and Tomohiko Takayasu were held in detention unjustly for almost three years. However, the fact that the statements of these person quoted in evidence used in the original judgment do not correspond to "confessions made after prolonged arrest or detention" as referred to in Article 38 of the Constitution is clear from the records, from the judicial precedent mentioned above, and from another judgment of the Supreme Court (1947 (re) No. 152, November 17, 1948, judgment of the Grand Bench, Keishu Vol. 2, No. 12, p. 1558). The argument is therefore unacceptable.

The remaining arguments allege violations of the Constitution, but they amount to no more than allegations of violation of laws other than the Constitution and do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.

- Concerning Items No. 7 to 9

The argument for the appeal alleges violations of Article 34, Article 37, paragraph 3, Article 36, Article 31, Article 19, and Article 21 of the Constitution, but these are merely allegations of violation of laws other than the Constitution criticizing the manner in which the police investigators behaved and do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.

- Concerning Item No. 10

The argument alleges that, owing to the repeated delays in institution of the prosecution after the defendants involved had been arrested and detained, the prosecution constituted an abuse of prosecutorial powers, unjustly violated the right of defense of the defendant, deprived him of his right to receive a speedy trial, violated Articles 19, 21 and 37 of the Constitution, and was thus void. However, the records show that this is a case involving a large number of people, was complex and wide-ranging in content and, as regards the case of murder in particular, some of the central figures involved, including the person committing the crime, disappeared and have as yet to be found. The delay in instituting the prosecution in the instant case, and in particular the delay in the prosecution in the murder case, must be deemed to have been unavoidable and cannot be construed as abuse of prosecutorial powers. The argument thus lacks any premise and is unacceptable.

- Concerning Item No. 2

The argument alleges that the trial violates Articles 31, 34 and 37 of the Constitution in that it took place with defendant X1 still being held in detention over a long period without just cause, but, seen in the light of the content of the instant case, it cannot be said that the detention of defendant X1 was unjustifiably long in duration, and the conclusion of the original court that there was a risk of the defendant absconding or destroying evidence may be sustained (see the analysis in connection with the first point in the grounds for acceptance of appeal submitted by defendant X1). The argument thus lacks any premise and is unacceptable.

- Concerning the second point of the grounds for acceptance of appeal submitted by Hitoshi Fukushima, defense counsel for the both defendants

The argument alleges violation of Article 37, paragraph 1 of the Constitution, but it is clear from judicial precedent in this Court that even if a decision is against the interests of a defendant owing to factors such as misunderstanding of the law or errors of fact-finding, etc., since the trial is taking place at a court in which there is no risk of bias in terms of its constitution or any other matters, this cannot be considered not to be a "public trial by an impartial tribunal" as referred to in the first paragraph of Article 37 of the Constitution (1947 (re) No. 171, May 5, 1948, judgment of the Grand Bench, Keishu Vol. 2, No. 5, p. 447). The argument is thus unacceptable.

Furthermore, the argument alleges violation of paragraph 3 of Article 76 of the Constitution (the argument mentions paragraph 3 of Article 36 of the Constitution, but this may be presumed to be an error for paragraph 3 of Article 76 of the Constitution), but since there is nothing in the records to indicate that the original judgment was contrary to conscience as indicated in the argument, the argument lacks any premise and is unacceptable.

The other arguments are merely allegations of violations of laws other than the Constitution and errors of fact, which do not constitute grounds for acceptance of the appeal under Article 405 of the Code of Criminal Procedure. (There is in the records no evidence comprising statements made by the defendants and used as evidence by the original court whose voluntary nature and trustworthiness is open to doubt, as alleged in the argument, and, contrary to the argument submitted by the defense counsel, the original judgment shows no violations of evidence rules. See the comments in connection with Items Nos. 1 to 4 in Part 1 of the grounds for acceptance of appeal submitted by defense counsel Shun'ichi Suginohara.)

5. Concerning the grounds for acceptance of appeal submitted by Tsutomu Teramoto, defense counsel for the two defendants

The arguments are merely allegations of violations of laws other than the Constitution and errors of fact-finding, which do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (The opinion of this Court in respect to the questions relating to the first bullet in the argument and the bullets constituting Exhibits Nos. 206 to 208 has already been given in the remarks in connection with the first point in the grounds for acceptance of appeal submitted by defense counsel Yugoro Kamata. In addition, the original judgment that defendant X1 had been involved in the acquisition and custody of one Browning pistol and around 100 bullets (facts found in the judgment of the court of first instance, 2. 2) (2) (i)) can be affirmed on the basis of the evidence presented.)

6. Concerning the grounds for acceptance of appeal presented by Morio Aoyagi, defense counsel for the two defendants

The argument alleges that the co-conspiracy theory affirmed by the original judgment is in violation of Article 31 of the Constitution, but, as has already been shown in connection with Item No. 1 in Part 2 of the grounds for acceptance of appeal of defense counsel Shun'ichi Suginohara, such an argument is unacceptable.

Next, the argument that the original judgment upholding the judgment of the court of first instance which found the fact of "conspiracy", etc., only on the basis of indirect evidence contradicts the judicial precedents of the Supreme Court, Grand Bench in connection with the so-called Nerima Case and the Matsukawa Case, in which it was stated that "strict proof" was required (1954 (a) No. 1056, judgment of the Grand Bench of May 28, 1958; 1954 (a) No. 1671, judgment of the Grand Bench of August 10, 1959), but "strict proof" as referred to in these judgments should be interpreted as referring to proof which is deemed to possess admissibility as evidence in accordance with the provisions of the Code of Criminal Procedure and which is based on evidence that has been tested through appropriate investigation before the courts. The fact that the original judgment did not find the fact of conspiracy and other facts without relying upon such strict proof is clear from the records. The original judgment does not therefore violate the judicial precedent mentioned, and the allegation of violation of judicial precedent is unacceptable.

In addition, the allegation in the argument that the upholding by the original judgment of the judgment of the court of first instance which found the fact of "conspiracy", etc., on the basis of indirect evidence constitutes a violation of Article 31 of the Constitution is essentially no more than an allegation of violation of the law other than the Constitution and does not constitute grounds for acceptance of the appeal under Article 405 of the Code of Criminal Procedure. (That the facts found on the basis of evidence can become evidence of other facts is based on judicial precedent in this Court (1950 (re) No. 725, October 17, 1950, judgment of the Third Petty Bench, Keishu Vol. 4, No. 10, p. 2109). The evidence given in the original judgment in connection with conspiracy and the identity of the pistol, etc., was indeed indirect evidence as stressed in the argument, but the totality of these evidences are sufficient to be able to find the facts stipulated in regard to this matter, and there are no grounds for the allegation that the original judgment constitutes a violation of the evidence rules. For further details with regard to this matter, see the explanation provided with regard to No. 1 in Part 2 of the grounds for acceptance of appeal submitted by defense counsel Shun'ichi Suginohara.)

The remaining arguments allege errors of fact-finding and mere violation of laws other than the Constitution and do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.

7. Concerning the grounds for acceptance of appeal submitted by Juro Adachi, defense counsel for both defendants

In connection with the facts given in 2. 6) in the judgment of the court of first instance, the argument alleges that the evidence used to prove the guilt of defendant X1 consists only of the confession of his accomplice Tomohiko Takayasu and that the original judgment is therefore in violation of Article 38, paragraph 3 of the Constitution. However, the statement in connection with a criminal fact of an accomplice or a co-defendant who, in terms of his relationship with the defendant, is someone other than the defendant, although he may be either a mere accomplice who has not been part of a joint trial or an accomplice who has received a joint trial (co-defendant), shall possess independent and full admissibility as evidence and shall be subject to the power of trial courts which can freely evaluate its probative value, except that said statement shall be denied its admissibility as evidence as described in Article 38, paragraph 2 of the Constitution. It shall not be regarded as identical to or in accordance with "his own confession" as provided for in Article 38, paragraph 3 of the Constitution. This interpretation is clear from judicial precedent in this Court (1954 (a) No. 105, judgment of the Grand Bench of May 28, 1958, Keishu Vol. 12, No. 8, p. 1718). In addition, the original judgment found the fact of crime on the basis of evidence capable of corroborating the statement of the afore-mentioned Takayasu. On account of this, the allegation in the argument that this constitutes a violation of the Constitution lacks a premise and is unacceptable.

In connection with the indication of fact in 2. 6) and 7) in the judgment of the court of first instance, the argument then goes on to allege this does not satisfy the conditions specified in Article 335 of the Code of Criminal Procedure, that these facts have been found on the basis of evidence with insufficient probative value and the grounds are thus inadequate, and that hearsay evidence with no admissibility has been used in violation of Articles 321, 322 and 324 of the Code of Criminal Procedure and thus of Article 31 of the Constitution, but in essence this amounts to no more than an allegation of violation of laws other than the Constitution, which does not constitute grounds for an appeal under Article 405 of the Code of Criminal Procedure. (As regards the admissibility of the evidence quoted in the original judgment, see the explanation provided in connection with Item No. 1 in the grounds for acceptance of appeal submitted by defense counsel Shoichi Akiyama and six others.)

8. Concerning the grounds for acceptance of appeal submitted by Masao Shimada, defense counsel for both defendants

The allegation in the argument is that the finding of facts without evidence in the original judgment constitutes a violation of judicial precedent, but the original judgment finds facts lawfully on the basis of the evidence, and, contrary to the arguments submitted by Masao Shimada, since nothing unlawful can be observed in the original judgment, there is no valid premise for the allegation of violation of judicial precedent, and the argument is unacceptable. (As regards the trustworthiness of the statement provided by witness Tomohiko Takayasu as Exhibit No. 228 in the judgment of the court of first instance, see the explanation provided in connection with Nos. 1 to 4 in Part 1 of the grounds for acceptance of appeal submitted by defense counsel Shun'ichi Suginohara.)
The remaining arguments allege errors of fact-finding and mere violation of laws other than the Constitution and do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.

9. Concerning the grounds for acceptance of appeal submitted by Isamu Sekihara and Tatsuo Okabayashi, defense counsel for both defendants

The argument alleges errors of fact-finding and mere violation of laws other than the Constitution that do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (The fact that the bullets presented as Exhibits 207 and 208 have abrasion marks on the head section and other sections thought to have been caused by stone or sand at the moment of penetration is clear from the written expert opinion prepared by the afore-mentioned Takashi Isobe and the witness examination record before the court of first instance relating to Isobe. See the explanation provided in connection with the first point in the grounds for acceptance of appeal submitted by defense counsel Yugoro Kamata.)

10. Concerning the grounds for acceptance of appeal of Yasumasa Taguchi, defense counsel for both defendants

The argument alleges errors of fact-finding and mere violation of laws other than the Constitution that do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (As regards the trustworthiness of the statements of witnesses Naomichi Sato, Yoka Oihira, and Tomohiko Takayasu quoted as evidence in the original court, see the explanation provided in connection with Items Nos. 1 to 4 in Part 1 of the grounds for acceptance of appeal submitted by defense counsel Shun'ichi Suginohara.

11. Concerning the grounds for acceptance of appeal submitted by Takao Aoyagi, defense counsel for both defendants

The argument alleges errors of fact-finding and mere violation of laws other than the Constitution that do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (The fact that the statement of witness Tomohiko Takayasu Exhibit No. 228 in the judgment of the court of first instance) and the written statement of defendant X2 (Exhibit No. 230 in the judgment of the court of the first instance) contained in this defendant's written statement to the public prosecutor Tetsuo Kubo cannot be deemed to be untrustworthy as stressed in the argument is as has been explained in connection with the conclusions reached in respect to Items Nos. 1 to 4 in Part 1 of the grounds for acceptance of appeal submitted by defense counsel Shun'ichi Suginohara.)

12. Concerning the grounds for acceptance of appeal submitted by Satoshi Yokota, defense counsel for both defendants

The argument alleges violation of the Constitution, but in effect it concerns errors of fact-finding and mere violation of laws other than the Constitution that do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (With regard to whether the statement of witness Yoka Oihira as (Exhibit No. 233 in the judgment of the court of first instance) is trustworthy or not, see the explanation provided in connection with Items Nos. 1 to 4 in Part 1 of the grounds for acceptance of appeal submitted by defense counsel Shun'ichi Suginohara.)

13. Concerning the grounds for acceptance of appeal submitted by Tetsuji Kurata, defense counsel for both defendants

The argument alleges errors of fact-finding and mere violation of laws other than the Constitution that do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (On the basis of the written expert opinion dated May 23, 1954 (Exhibit No. 66 in the judgment of the court of first instance) prepared by Professor Yutoku Yamamoto of the University of Tokyo, who examined a hand grenade (Exhibit No. 1) which the original court found, on the basis of the evidence listed in the original judgment, to have been the one with which Tomohiko Takayasu et al. had carried out an explosive test at Horomi Pass early in January 1953 and which had been left unexploded on the site, the structure of this hand grenade was such that thick sulfuric acid would flow out as a result of breakage of the ampoule in which it was contained and would then mix with potassium chlorate on the outside. The reaction between the two would result in generation of chlorine dioxide with immediate ignition caused by paper, charcoal, etc. This would ignite black gunpowder to facilitate explosion. When the hand grenade was taken apart, it was found to contain essentially the afore-mentioned explosive properties and it had the capacity to kill or injure people and any living things within a range of about two meters. It is correct to assume, as was done in the original court, that such a hand grenade corresponds to an explosive device as provided for in the Explosive Control Act. (See Supreme Court 1954, No. 3956, judgment of the Grand Bench of June 27, 1956, Keishu Vol. 10, No. 6, p. 921.)

14. Concerning the grounds for acceptance of appeal submitted by Fukuko Sakamoto, defense counsel for both defendants

The argument alleges errors of fact-finding and mere violation of laws other than the Constitution that do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (The finding that defendant X1 had discussed preparing and sending a threatening letter to a police officer with Hitoshi Shishido, Tomoya Tsuruta, Noboru Kimura, Shigeru Kadowaki, Tomohiko Takayasu and defendant X2 in the room of Noboru Obayashi in the northern dormitory of Hokkaido University, located at Nishi 2-chome, Kita 13-jo, Sapporo on or around January 1, 1952, and that they drafted the said letter and colluded to determine who should write it can be approved in light of the evidence presented. The denial of the alibi to the effect that at around 10:00 a.m. on the same day, defendant X1 went to a meeting for reporting on and criticizing work in farming villages at the Chiba residence located at Nishi 15-chome, Kita 15-jo, Sapporo, where he cleaned the chimney can be affirmed in light of the evidence quoted by the original judgment in respect to the facts specified in 2. 6) of the judgment of the court of first instance.

15. Concerning the grounds for acceptance of appeal submitted by Hiroshi Ashida and Masumi Yukiiri, defense counsel for both defendants

The argument is that the adoption of evidence in the original judgment was carried out in deference to the governmental authorities and cannot be described as a trial by an impartial tribunal, for which reason the original judgment violates Article 37, paragraph 1 of the Constitution. However, there is nothing in the records to indicate that the manner in which evidence was adopted in the original judgment showed deference to the governmental authorities. It has been established by judicial precedent at this Court that a "trial by an impartial tribunal" as provided for in Article 37, paragraph 1 of the Constitution refers to a trial by a court possessing an organization and structure that entails no risk of bias or partiality (1947 (re) No. 171, judgment of the Grand Bench of May 5, 1948, Keishu Vol. 2, No. 5, p. 447; 1947 (re) No. 48, judgment of the Grand Bench of May 26, 1948, Keishu Vol. 2, No. 5, p. 511), and the argument is therefore unacceptable.

The remaining arguments allege errors of fact-finding and mere violation of laws other than the Constitution and do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure.
(As regards the trustworthiness of the statements of witnesses Naomichi Sato, Yoka Oihira, and Tomohiko Takayasu quoted as evidence in the original court and of the written statement of defendant X2 contained in this defendant's written statement to the public prosecutor Tetsuo Kubo, see the explanation provided in connection with Items Nos. 1 to 4 in Part 1 of the grounds for acceptance of appeal submitted by defense counsel Shun'ichi Suginohara.)

16. Concerning Item No. 1 in the grounds for acceptance of appeal of Shoichi Akiyama, Yasushi Ishijima, Masami Kongo, Yoshiji Sato, Isamu Sekihara, Tetsuo Takezawa, and Koei Nemoto, defense counsel for both defendants

The argument alleges that hearsay evidence with no admissibility was adopted by the original judgment in violation of Articles 320 and 324 of the Code of Criminal Procedure and that this therefore contravenes Articles 31, 32 and Article 37, paragraph 2 of the Constitution, but this amounts to no more than an allegation of violation of laws other than the Constitution that does not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (It is appropriate to assume that whether or not hearsay statement is involved should be determined on the basis of the relationship between the facts to be proven and the perception of the declarant. The matter in the statement contained in the written statement of Naofumi Shimizu to the public prosecutor to the effect that defendant X1 had stated at a cadres' education meeting held at the Densan company premises that "It's about time we killed Shiratori" (Exhibit No. 224 in the judgment of the court of first instance) should be interpreted as having been presented in order to prove the fact that the defendant X1 had made the expression contained in the written statement, and the fact that defendant X1 made such an expression was ascertained directly by Naofumi Shimizu. This was not therefore considered to be a hearsay statement, and the original ruling to the effect that this evidence had admissibility as such on the basis of Article 321, paragraph 1, item 2 of the Code of Criminal Procedure may be affirmed. Next, the statement of witness Tomohiko Takayasu at the 38th hearing of the trial before the court of first instance included a section in which Takayasu stated that defendant X1 made the following remarks at either the house of Kadowaki or the lodgings of defendant X2: "We'll attack Division Head Shiratori with a pistol, but since we're dealing with a police officer, the matter will have to be planned very carefully. We'll have to begin by investigating Shiratori's activities, for example, when he arrives at and leaves work and the vehicles in which he travels. We'll then make a plan and wait for the right opportunity" (Exhibit No. 228). This statement and other statements including that of witness Naomichi Sato at the 40th hearing of the trial before the court of first instance in which Sato stated that defendant X1, at Sato's lodgings, had said "Let's attack Shiratori openly in the name of the Communist Party" (Exhibit No. 236) should be considered has having been presented in order to prove that defendant X1 had expressed himself in such a manner. The fact that defendant X1 had spoken in this manner was directly perceived by each of the declarants themselves, and the judgment of the original court that they do not constitute hearsay statements can be affirmed. Next, the statement of Yoka Oihira at the 36th hearing of the court of first instance to the effect that Hiroshi Sato had, at the time of the visit by Oihira to the house of Hiroshi Sato on January 22, admitted that he had shot and killed Division Head Shiratori (Exhibit No. 233) may be considered to have been presented before the court to prove the fact that Hiroshi Sato had shot and killed Division Head Shiratori. Since this fact in itself had not been directly perceived by the declarant Yoka Oihira, this should be considered as a hearsay statement, and although it is true that the conclusion of the original court that this was not hearsay evidence was erroneous, the judgment of the original court adopting this statement as evidence cannot be deemed as unlawful in its conclusion. It is clear that the statement is admissible on the basis of Article 324, paragraph 2 and Article 321, paragraph 1, item 3 of the Code of Criminal Procedure, for the record indicates that the requirements under the provisions thereof were fulfilled. Furthermore, the statement of witness Yoka Oihira to the effect that, on the same occasion, Hiroshi Sato had stated that "Chairman [Defendant X1] had said that it would be] OK to stay two or three days?it would be safe for two or three days" (Exhibit No. 233) may be considered to have been presented to prove the fact that defendant X1 expressed himself in such a manner to Hiroshi Sato, and since declarant Oihira had heard the statement from the original declarant Hiroshi Sato, the statement should be considered to be a hearsay statement. But the requirements stipulated in Article 324, paragraph 2 and Article 321, paragraph 1, item 3 were fulfilled, and the statement can therefore be declared admissible as in the original judgment. Next, in the statement (Exhibit No. 228) presented at the 38th hearing of the court of first instance by witness Tomohiko Takayasu, the section relating to pistol shooting practice at the Maruyama Police Officers' Shooting Range may be assumed to prove the fact that several individuals including Tsuruta and Shishido took part in pistol shooting practice at the Maruyama Police Officers' Shooting Range, but this should be regarded as a hearsay statement since the declarant Tomohiko Takayasu did not experience this in person and merely states the facts he had heard from Tomoya Tsuruta or Hitoshi Shishido, in addition to which, as stated in the argument submitted by the defense counsel, there is no way of deciding which of the two was the original declarant. It is not certain who was the original declarant. However, even if the choice as to which was the original declarant can be no more than a random one, since the range of choice is restricted to two specific people only, , it would be possible to examine and to cross-examine both individuals as court witnesses unless there are circumstances making this impossible such as ignorance of their whereabouts. It cannot be said that a statement is inadmissible as evidence merely on the grounds that the original declarant cannot be specified from among two individuals. Then, the afore-mentioned statement satisfies the requirements stipulated in Article 324, paragraph 2 and Article 321, paragraph 1, item 3 of the Code of Criminal Procedure, and it may therefore be assumed to be admissible as indicated in the original judgment.)

The argument alleges violation of judicial precedent, but the precedent quoted in the argument relates to cases different from the instant case and cannot be appropriately referred to as a precedent. The argument therefore lacks any valid premise and is unacceptable.

- Concerning Item No. 2 in the grounds for acceptance of appeal of Shoichi Akiyama, Yasushi Ishijima, Masami Kongo, Yoshiji Sato, Isamu Sekihara, Tetsuo Takezawa, and Koei Nemoto, defense counsel for both defendants

The argument alleges that the Ordinance on the Control of Groups, etc., contradicts the Constitution and is void, but the unacceptability of this assertion has been explained in connection with No. 2 in Part 2 of the grounds for acceptance of appeal presented by defense counsel Shun'ichi Suginohara.

17. Concerning Items Nos. 1 and 2 in the grounds for acceptance of appeal submitted by Isamu Sekihara, defense counsel for both defendants

The argument alleges errors of fact-finding and mere violation of laws other than the Constitution that do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (With regard to the bullets constituting Exhibits Nos. 206 to 208, see the explanation in connection with the first point of the grounds for acceptance of the appeal of defense counsel Yugoro Kamata.)

18. Concerning the grounds for acceptance of appeal of Koei Nemoto, defense counsel for both defendants

The argument alleges errors of fact-finding and mere violation of laws other than the Constitution that do not constitute grounds for acceptance of appeal under Article 405 of the Code of Criminal Procedure. (With regard to the trustworthiness of the statement of witness Naomichi Sato quoted as evidence in the original court, see the explanation in connection with Items Nos. 1 to 4 in Part 1 of the grounds for acceptance of appeal submitted by Shun'ichi Suginohara.)

19. This Court has fully examined the results of the oral proceedings before the court and has carefully looked into the records and evidence, but we cannot accept that Article 411 of the Code of Criminal Procedure needs to be applied to the points referred to in the arguments on the grounds for acceptance of the appeal.

20. The documentation supplementing the grounds for acceptance of appeal submitted by defendant X1 (received on September 3, 1961 and December 24, 1961), the documentation supplementing the grounds for acceptance of appeal submitted by Yugoro Kamata and Shun'ichi Suginohara, defense counsel for both defendants (received on August 27, 1961), the documentation supplementing the grounds for acceptance of appeal submitted by Hitoshi Fukushima, defense counsel for both defendants (received on August 31, 1961 and May 14, 1962), the documentation supplementing the grounds for acceptance of appeal submitted by Tsutomu Teramoto, defense counsel for both defendants (received on August 31, 1961), the documentation supplementing the grounds for acceptance of appeal submitted by Morio Aoyagi, defense counsel for both defendants (received on August 31, 1961), the documentation supplementing the grounds for acceptance of the appeal submitted by Seikichi Ueda, defense counsel for both defendants (received on August 31, 1961 and April 10, 1962), the documentation supplementing the grounds for acceptance of appeal submitted by Juro Adachi, defense counsel for both defendants (received on August 31, 1961), the documentation supplementing the grounds for acceptance of appeal submitted by Satoshi Yokota, defense counsel for both defendants (received on August 31, 1961 of which application for revision received on June 25, 1963, and on September 6, 1962), the documentation supplementing the grounds for acceptance of appeal submitted by Isamu Sekihara, defense counsel for both defendants (received on August 31, 1961), the documentation supplementing the grounds for acceptance of appeal submitted by Satoshi Yokota and Seikichi Ueda, defense counsel for both defendants (received on May 7, 1962), the documentation supplementing the grounds for acceptance of appeal submitted by Morio Aoyagi, Tatsuo Okabayashi, Seikichi Ueda, Hitoshi Fukushima, Satoshi Yokota and Tsutomu Teramoto, defense counsel for both defendants (received on May 30, 1963), and the documentation supplementing the grounds for acceptance of appeal submitted by these seven persons (received on July 11, 1963) were all submitted after the deadline has passed for the submission of the grounds for acceptance of appeal, but they were taken account of to the extent that they did not contain new assertions and that they expanded upon the content of the arguments in the grounds for acceptance submitted lawfully previous to the deadline.

Accordingly, a judgment is delivered as specified in the Main Text on the unanimous opinion of the Justices on the basis of Articles 414 and 396 of the Code of Criminal Procedure and of Article 21 of the Criminal Code (in connection with defendant X1).

In the presence of Public Prosecutors Kozaburo Tamazawa and Hajime Takagi

October 17, 1963

Supreme Court, the First Petty Bench

Justice IRIE Toshio Irie
Justice SHIMOIIZUKA Masuo
Justice SAITO Kitaro