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Colonial Cases

Fukuhara and Omoto 1891

[jurisdiction - homicide]

Fukuhara and Omoto

Source: North China Herald, 4 September, 1891

3rd September.
WHEN writing on the 13th of July on the subject of the enquiry then about to be held into the alleged murder of a Chinaman by Japanese in the City, we mentioned that in a serious case like this the Consul for Japan has only power to hold a preliminary enquiry here, and that the prisoners, if a prima facie case were proved against them, would have to be sent to Nagasaki to be tried.
  We suggested that this conflicted with the existing treaty between Japan and China, according to which a Japanese accused of serious crime committed in China has to be tried by the local authority and the Consul together, and of the offence is sufficiently serious, "capital punishment shall be inflicted at the scene of the commission of the offence."
  In mentioning that the prisoners would have to be sent to Nagasaki for trial, we said -
  "We cannot doubt that this will seem a hardship to the Chinese, who will have to send their witnesses to Nagasaki - a disconcerting matter for the neighbours of the unfortunate pedlar. To them a sea-voyage of five hundred miles, followed by the necessity of appearing in a foreign court, among a people feared as the Japanese are by the commonalty of this part of China, is no joke. In reference to this the Japan Mail, an official paper, explained that only the depositions, not the witnesses themselves, would have to be sent to Nagasaki; and it was also explained that there was a precedent for the course to be adopted - which it was acknowledged was not in accordance with the Treaty, - a Chinaman who committed a murder in Nagasaki having been sent to China to tried and punished.
  The enquiry into the murder has been held, there being five Japanese accused. As we mentioned at the close of the inquiry, the Chinese Magistrate came to the conclusion  that two of the five were innocent of the murder, two guilty as principals, and one as an accessory.
  At his request, however, we understand, the Japanese Consul reserved his decision, the Magistrate being anxious to consult the highest authorities. After a short delay the Japanese Consul announced that he found three of the accused innocent and two guilty, and that the two guilty ones would be sent to Nagasaki to be tried; and in this he is acting strictly according to his instructions. Mr. Yuan, the Chinese Magistrate, is by no means satisfied with this decision, and in a long despatch, a translation of which will be found in another column, he gives his reasons for his dissatisfaction; and as there is every reason to believe that he is acting under instructions from above, we have the elements of a pretty diplomatic imbroglio.
  There appears to be little doubt about the guilt of two of the accused, Fukuhara and Omoto, while the evidence is not directly, apparently, against the third man, Narasaki, who is discharged by his Consul. Mr. Yuan objects to this, as he does to the sending of the other two men to Nagasaki.  Mr. Yuan begins by quoting the Treaty, as to the intent of which there is little question, and, as we have said before, "it is generally understood, in international law, that municipal legislation  cannot override treaty obligations;"  that is, that the Japanese Government  having agreed by Treaty that a Japanese who commits a murder in China shall be tried and punished in China, cannot turn round and say that their Consul has no power to try an offender charged with a crime punishable with more than five years' hard labour.
  The only precedent for not following the Treaty which Mr. Yuan quotes, is one in which a Japanese, who killed a thief in the act of robbing him, was sent to Nagasaki for trial.  "The Viceroy protested at the time," says Mr. Yuan, "against the manner in which the Japanese dealt with that case as contrary to Treaty, and demanded that the Japanese should be sent back for trial at Shanghai by a joint, or 'mixed,' Court.
  But the Chinese are a practical people, and they appear to have let their protest drop, because it was a case of justifiable homicide. Mr. Yuan goes on to give a history of the present case, of which we have already given a picturesque account from a native paper, and which appears to have been really a brutal, unprovoked murder, and gives his reasons for believing that the third accused, Narasaki, was one of the men who killed Chen Kuan-fu.
  He then returns to the objection, from the point of view of the Treaty, to the removal of the accused to Nagasaki for trial -
  "You state that you have no authority from your Government to pronounce sentence in a case of this importance, and therefore that it must be referred to Japan. But although in a purely Japanese case no objection could be raised by us, yet in an international case like this, the Government, which has given you no authority to pronounce judgment in a purely Japanese case, has expressly stipulated by a solemn treaty signed by the Sovereigns of your country and of ours, that trial shall be jointly held and judgment pronounced in the place where the crime has been committed. Were the Chinese authorities, supposing the case reversed, to send a Chinese murderer to China for trial after a preliminary investigation in Japan, there can be little doubt that the view taken by the Japanese authorities would be very different from that which you have expressed."
  If, however, there is a case on record in which a Chinaman who committed a murder at Nagasaki was sent to China for trial, Mr. Yuan's argument loses some of its force. There is, however, much force in the argument that the judge of the Saibansho, or superior court, in Japan, should have the witnesses before him, and be able to judge from their demeanour whether they are telling the truth or not. A written deposition cannot have the value of evidence heard straight from the witness's own lips.  For these reasons, Mr. Yuan requests that the three men he names may be detained in Shanghai, and a date fixed upon for a trial hearing and giving of judgment here instead of in Japan.
  It is rather amusing to see that the two principal accused complain of the loss of a hat, a revolver, a map, a waist-band, an account-book, and 60 or 70 cents in silver. We almost wonder that Mr. Yuan did not reply that they would not require these luxuries any more for the present.
  The question is now one for the two governments concerned, and it is out of the hands of the Japanese Consul and the Chinese Magistrate, but it certainly seems to us that, until the treaty between China and Japan is altered by mutual consent, China has a right to insist that these alleged murderers should be tried in Shanghai "by the local authority and the consul together."

Source: North China Herald, 27 November, 1891

WE find at last in the Japan Mail a translation of the text of the judgment of the Nagasaki Court in the case of the two Japanese who murdered a Chinaman in the City in July last, It is as follows:
  The accused, Fukuhara Banjuro, and Omoto, lodged in the house of Ping Chao-ching, in the native city of Shanghai. Between the hours of 8 and 9 p.m. on the 3rd of June, (? July), 1891, they left their lodging, in company with Narasaki Hachiro, to bid goodbye to their visitors, Miyasaki Katsu and Murakami Tsuruzo, who were returning to the Settlement. On their way back to their lodging, the prisoners, still accompanied by Narasaki, passed the shop of Shen Kuen-fuh, when a dog belonging to Shen barked furiously at them. A quarrel ensuing between Omoto and Shen and Shen's family, a crowd of Chinese came together, armed with sticks, boards, and cutting weapons, to assist Shen.
  This crowd attacked the accused and Narasaki, the latter defending themselves as best they could and receiving several wounds, but ultimately making their way back to their lodging.  Excited by the attack of which they had been the objects, Fukuhara, arming himself with a sword cane, and Omoto, taking a stick, left Ping's house and proceeded towards the dwelling of Shen. After advancing about 20 yards, they encountered Shen near a street-lamp, whereupon they renewed the quarrel with him, and Fukuhara, drawing the sword, struck Shen on the head with it and cut into his skull. Omoto also beat Shen on the head with his stick, fracturing his skull in two places. Several other wounds were inflicted on Shen's person, but those on his head were fatal, and he expired immediately.
  The above are the facts established by testimony submitted to the Court. The action of the prisoners Fukuhara and Omoto, in so far as concerns the question of inflicting fatal injuries, is dealt with ion Art. 209 of the Criminal Code. Art. 305, however, provides that when the injuries are inflicted under excitement owing to the safety of his own person having been previously imperilled, the degree of the crime is reduced.
  Therefore, in accordance with these Articles, together with Articles 313 and 316, the prisoners Fukuhara and Omoto are sentenced to 3 years' imprisonment with hard labour, the sword of Fukuhara is confiscated, and the costs of the Court must be borne by them.
(Signed) AKIYAMA GENZO, Chief Judge of Nagasaki Local Court.
Signatures of the Associated Judges  and of the Clerk of the Court.
Date: November 2nd, 1891.
.  .  .
Now we know that the penalty in Japan for a premeditated murder, if it is committed by a Japanese on a Chinaman, is three years' imprisonment with hard labour. The Chief Judge of the Nagasaki Local Court does not attempt to disguise the fact that it was a premeditated murder.  The accused on their way home one night were annoyed by the barking of a dog belonging to Shen. They had a quarrel with Shen, and according to their story, Shen's friends and neighbours gathered together and attacked them with sticks, swords, and cutting weapons. They got away, however, to their home, armed themselves, and set out to be revenged upon Shen whom they found alone near a street lamp, and here they proceeded to murder him.
  There was a preliminary enquiry here before the Japanese and Chinese officials, and the accused were committed for trial at Nagasaki, against the protest of the Chinese magistrate. He pointed out that the witnesses could not be sent to Nagasaki, while the perjuries of the two accused were patent to all who were present at their trial, and he apprehended just such a result as has occurred.
  Taking the account of the murder as given in the above judgment, an account which differs considerably from that published in our columns at the time, it is difficult to understand how any judge could think that it was a crime sufficiently punished with three years' hard labour. The accused began the quarrel with Shen, and by their own showing got safely away from the crowd of Shen's friends and neighbours. When they got home, the incident should have been finished; if they were really wounded by the crowd, as they were lodging with a Chinese graduate, they could easily make their complaint to the Chinese Magistrate in the morning. But they determined to take the law into their own hands; they armed themselves; they started out to find Shen and be revenged on him, and they killed him accordingly. This seems to us, as we have said, to be a case pf premeditated murder, for which the punishment in Japan is death; but the Nagasaki Judge took it out of this category at once, and considered it as manslaughter, and coming under the head of homicide in self-defence:
  ARTICLE 299, - The voluntary blows, wounds or assaults which have occasioned death shall be punished with major confinement. (Major confinement from 9 to 11 years.)
  We are indebted for these extracts from the penal code to the Japan Gazette - The judge had apparently, however, decided that even 9 years; imprisonment was too much, though he must have found it a little difficult to call the murder of Shen 'homicide in self-defence,' so he brings in Articles 305, 313, and 316, which are as follows.  It will be seen that the Gazette's translation of Art. 305, differs considerably from that given in the Mail's translation of the judgment. To understand Articles 313 and 316, it is necessary also to quote Articles 309, 310, 311, and 312 -
  ARTICLE 305. - If the violence has been committed by two or kore persons, each of them shall be punished according to the gravity of the blows, or wounds which they shall have occasioned but if it is not possible to find out the nature or the gravity of the violence committed by each of the offenders, they shall all suffer the most severe penalty for the injuries, with diminution one degree, except in the case of the instigator, who shall undergo the penalty without any diminution.
  ARTICLE 309. - Murder, voluntary blows, wounds or violence, are excusable when they have taken place in a transport of passion, directly provoked by serious violence against the person of the offender. This excuse shall be refused to him who through his own fault shall have exposed himself to the provocation.
  ARTICLE 310. - If, in a fracas, two or more persons shall have mutually given blows or wounds, all these persons can obtain excuse for provocation if it has been proved from which side the provocation alleged by both has been given.
  ARTICLE 311. - Murder and violence are also excusable when they have been committed by a husband on his lawful wife or on her accomplice at the moment in which he has taken them in the very act of adultery. However, the husband shall not enjoy the benefit of the present excuse when he shall have previously encouraged the dissoluteness of his wife.
  ARTICLE 312. - Murder and violence are also excusable when they have taken place to directly prevent or repel during the day either the escalate or the breaking of the walls or fences of an inhabited house or its other offices, or the introduction, without cause, of another into the said places.
  ARTICLE 313. - In the cases set out in the preceding Articles the penalty incurred for murder or blows or wounds, according to the distinctions borne by the preceding sections shall be lowered two or three degrees.
  ARTICLE 316. If the perpetrator of the murder or violence has willingly done more injury to the aggressor than was necessary for the legitimate defence of his person, or his goods, or shall have injured after the danger has ceased, there shall not be exemption from punishment; but, according to the circumstances legal excuse shall be allowed him according to Article 313.
  There is not one of these clauses which could be properly applied to mitigate the penalty for murder in the present case. If under No. 309 the prisoners claim that they acted under a transport of passion - when their action was so deliberate - they are debarred by the fact that they began the original quarrel; for the barking of a Chinaman's watch dog cannot be considered provocation. The intent of Article 316 appears to be clear, that no person should be excused who commits a murder after the danger to himself has ceased, which was the case in the present instance.
  We should not have dealt with the matter at this length, but that the possibility of an early revision of the treaties makes it a matter of importance how justice is administered by the native courts in Japan. This is certainly not a reassuring instance.


See also North China Herald, 4 September, 1891; Miscellaneous: The Murder of a Chinese by Japanese.
North China Herald, 4 September, 1891; The Alleged Murder by Japanese.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School