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343 U.S.

be said, it seems to us that that construction fits the statutory scheme.

Affirmed.

MR. JUSTICE FRANKFURTER, not having heard the argument owing to illness, took no part in the disposition of this case.

MR. JUSTICE JACKSON dissents.

completed on September 1, 1944. Although the period of work covers 38 calendar months, allocations may be made to only the 18 calendar months which are included within the part of the period of work which precedes the close of 1942 (the current taxable year). Therefore, $2,000 ($36,000 divided by 18) must be allocated to each of 18 calendar months preceding January 1, 1943. Accordingly, $12,000 is allocated to 1941, and $24,000 to 1942 (the current taxable year)."

Syllabus.

KAWAKITA v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT.

No. 570. Argued April 2-3, 1952.-Decided June 2, 1952.

At petitioner's trial for treason, it appeared that originally he was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese; showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport. Held: His conviction for treason is affirmed. Pp. 719-745.

1. The evidence was sufficient to support the finding of the jury that he had not renounced or lost his American citizenship at the time of the overt acts charged in the indictment. Pp. 720–732.

(a) In view of petitioner's dual nationality, it cannot be said as a matter of law that his action in registering in the Koseki (a family census register) and changing his registration from American to Japanese amounted to a renunciation of American citizenship within the meaning of § 401 of the Nationality Act. Pp. 722-725.

(b) Nor is such a holding required as a matter of law by the facts that, during the war, he traveled to China on a Japanese passport, used his Koseki entry to obtain work at a prisoner-of-war camp, bowed to the Emperor, and accepted labor draft papers from the Japanese Government. P. 725.

(c) In view of the conflict between petitioner's statements at his trial that he felt no loyalty to the United States from March 1943 to late 1945 and his actions after Japan's defeat (when he

applied for registration as an American citizen and for an American passport), the question whether he had renounced his American citizenship was peculiarly for the jury to determine. Pp. 725–727.

(d) It cannot be said that petitioner was serving in the armed forces of Japan within the meaning of § 401 (c) nor that his status as a civilian employee of a private corporation was so changed by the regimentation of the industry by the Japanese Government that he was performing the duties of an "office, post, or employment under the government" of Japan within the meaning of § 401 (d) of the Nationality Act. Pp. 727-729.

(e) Section 402 creates a rebuttable presumption that a national in petitioner's category expatriates himself when he remains for six months or longer in a foreign state of which he or either of his parents shall have been a national; but that presumption was rebutted by the showing that petitioner was not expatriated under § 401 (c) or (d). P. 730.

(f) If there was any error in the judge's charge to the jury that the only methods of expatriation are those contained in § 401, it was harmless error, since petitioner tendered no question of fact which was inadmissible under § 401 and since the judge charged that he could not be convicted if he honestly believed that he was no longer a citizen of the United States. Pp. 730-732.

2. Notwithstanding his dual nationality and his residence in Japan, petitioner owed allegiance to the United States and can be punished for treasonable acts voluntarily committed. Pp. 732-736.

(a) Since the definition of treason in Art. III, § 3 of the Constitution contains no territorial limitation, an American citizen living beyond the territorial limits of the United States can be guilty of treason against the United States. Pp. 732–733.

(b) Petitioner was held accountable by the jury only for performing acts of hostility toward this country which he was not required by Japan to perform. Pp. 734–735.

(c) An American citizen owes allegiance to the United States wherever he may reside. Pp. 735–736.

3. Each of the overt acts of which petitioner was convicted was properly proven by two witnesses; and each of them showed that petitioner gave aid and comfort to the enemy. Pp. 736-742.

(a) Two overt acts (abusing American prisoners for the purpose of getting more work out of them in producing war materials for the enemy) qualified as overt acts within the constitutional standard of treason, since they gave aid and comfort to the enemy,

717

Opinion of the Court.

though their contribution to the enemy's war effort was minor. Pp. 737-739.

(b) The other six overt acts (cruelty to American prisoners of war) gave aid and comfort to the enemy by helping to make all the prisoners fearful, docile and subservient, reducing the number of guards needed, and requiring less watching—all of which encouraged the enemy and advanced his interests. Pp. 739-742.

(c) The overt acts were sufficiently proven by two witnesses, since each overt act was testified to by at least two witnesses who were present and saw or heard that to which they testified and any disagreement among them was not on what took place but on collateral details. P. 742.

4. The evidence was sufficient to prove that petitioner was guilty of voluntarily "adhering to the enemy." Pp. 742–744.

5. The treasonable actions of petitioner were so flagrant and persistent that it cannot be said that the death sentence imposed by the trial judge was so severe as to be arbitrary. Pp. 744-745. 190 F. 2d 506, affirmed.

In a Federal District Court, petitioner was convicted of treason and sentenced to death. See 96 F. Supp. 824. The Court of Appeals affirmed. 190 F. 2d 506. This Court granted certiorari. 342 U. S. 932. Affirmed, p. 745.

Morris Lavine and A. L. Wirin argued the cause for petitioner. With them on the brief was Fred Okrand.

Oscar H. Davis argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney and Beatrice Rosenberg.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner, a national both of the United States and of Japan, was indicted for treason, the overt acts relating to his treatment of American prisoners of war. He was

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convicted of treason after a jury trial (see 96 F. Supp. 824) and the judgment of conviction was affirmed. 190 F.2d 506. The case is here on certiorari. 342 U. S. 932.

First. The important question that lies at the threshold of the case relates to expatriation. Petitioner was born in this country in 1921 of Japanese parents who were citizens of Japan. He was thus a citizen of the United States by birth (Amendment XIV, § 1) and, by reason of Japanese law, a national of Japan. See Hirabayashi v. United States, 320 U. S. 81, 97.

In 1939 shortly before petitioner turned 18 years of age he went to Japan with his father to visit his grandfather. He traveled on a United States passport; and to obtain it he took the customary oath of allegiance. In 1940 he registered with an American consul in Japan as an American citizen. Petitioner remained in Japan, his father returning to this country. In March, 1941, he entered Meiji University and took a commercial course and military training. In April, 1941, he renewed his United States passport, once more taking the oath of allegiance to the United States. During this period he was registered as an alien with the Japanese police. When war was declared, petitioner was still a student at Meiji University. He became of age in 1942 and completed his schooling in 1943, at which time it was impossible for him to return to the United States. In 1943 he registered in the Koseki, a family census register.1 Petitioner did not join the Japanese Army nor serve as a soldier. Rather, he obtained employment as an interpreter with the Oeyama Nickel Industry Co., Ltd., where he worked until Japan's surrender. He was hired to interpret communications between the Japanese and the

1 See Blakemore, Recovery of Japanese Nationality as Cause for Expatriation in American Law, 43 Am. J. Int'l L. 441, 449.