[강도예비(인정된죄명:폭력행위등처벌에관한법률위반)][공1987.3.15.(796),398]
A. The case where the indictment is amended because the basic facts are identical, and the amendment is lawful.
(b) Whether Article 7 of the Punishment of Violences, etc. Act applies only to the fact that a person carries a deadly weapon that is likely to use for violent crime without any justifiable reason;
A. In a case where the indictment was modified for a crime under Article 7 of the Punishment of Violences, etc. Act, which is likely to be commonly used for violent crimes without any justifiable reason, with a deadly weapon, that he saw that he saw him to have prepared robbery while in his possession with a deadly weapon, then the facts charged before and after the alteration are identical to the facts charged before and after the alteration are lawful.
B. If a person carries a deadly weapon that is likely to be used for violent crimes without any justifiable reason, even if there is no other specific criminal act, the person satisfies the constituent elements of the crime under Article 7 of the Punishment of Violences, etc. Act by itself.
A. Article 298 of the Criminal Procedure Act, Article 7 of the Punishment of Violences, etc. Act, and Article 343 of the Criminal Act
A. Supreme Court Decision 66Do1749 delivered on March 7, 1967, 82Do99 delivered on July 13, 1982, and 83Do2500 delivered on November 8, 1983
Defendant 1 and one other
Defendants
Daegu High Court Decision 86No1229 delivered on October 22, 1986
Each appeal shall be dismissed.
The number of detention days after an appeal shall be included in the calculation of the original sentence by 30 days.
The Defendants’ grounds of appeal are also examined.
With permission of the court, the public prosecutor may add, withdraw or change charges or applicable provisions of Acts stated in the indictment. In this case, the court shall permit it to the extent that the identity of the charges is not disturbed (Article 298 of the Criminal Procedure Act).
According to the records, the prosecutor changed the facts charged in this case where the defendants were arrested in his possession of a deadly weapon and the applicable provisions of the Acts to the crimes under Article 7 of the Punishment of Violences, etc. Act that are likely to be used in violent crimes without any justifiable reason after obtaining permission from the court. Since the facts charged prior to the change and the facts charged after the change are identical with the facts, the changes in the indictment are legitimate, and therefore there is no ground for appeal to the effect that the modification of the indictment is illegal and unjust. Furthermore, in light of the evidence of the first instance court maintained by the court below, the court below is just to find the facts of the court below that the defendants who had committed the crimes with a deadly weapon can be sufficiently recognized that the defendants had possession of a dangerous weapon such as Myeonkkknk and excessive, etc., as long as the defendants, who had committed the crimes with a deadly weapon without any justifiable reason, and even if there were no other specific crimes, the court below satisfied the elements of Article 7 of the Punishment of Violences, etc. Act.
In the end, there is no ground for appeal to the effect that the court below erred in the misapprehension of the legal purpose of the establishment of a crime against the Defendants who did not violate the rules of evidence.
In addition, there is no legitimate ground for appeal in this case where the defendants' request for a disposition heavier than the original judgment is made taking into account the circumstances such as the family type, etc. of the defendants' breathbbing act.
Therefore, all appeals by the Defendants are dismissed, and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.
Justices Yoon Il-young (Presiding Justice)