A defendant shall be punished by imprisonment for three years.

One hundred and fifty days of detention days prior to the imposition of judgment in the first instance shall be included in the above sentence.

Therefore, first of all, the defendant's argument about mistake of facts is presented.

According to the records, the facts that the victim non-indicted 1 died in the same way as the original trial time can be recognized.However, in full view of the testimony of the witness non-indicted 2 and the statement of the statement and the statement of the appraisal of the non-indicted 1 prepared by the prosecutor non-indicted 2, the victim non-indicted 1 is a special body with a size of 250 to 300 grams, which is only 200 grams, and the depth of the body is nothing more than 200 grams, and it was a body that could cause a shock even if it does not cause a shock. The death of the victim caused a shock in the so-called case of the defendant is caused by such special body of the victim, and the body and the above special point of the body of the victim is sufficient to recognize the fact that the other person could not know the fact that the victim's appearance alone cannot be found, unless there are special circumstances of the victim's death, the victim's death cannot be predicted as a result of rape as a result of the crime of rape.

Despite this, the court below recognized the crime of rape resulting from rape and punished the defendant, which cannot be said to have affected the conclusion of the judgment by misunderstanding the facts.

Therefore, even though the judgment on the remaining issues is omitted, the appeal by the defendant is well-grounded, so the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

범죄사실:피고인은 1967.12.31. 오후 9시 10분경 서울 성북구 삼선동 1가 (이하 생략) 소재 피고인이 거처중이던 방에서 피고인에게서 돈을 꾸러온 피고인의 친척 동생벌이 되는 망 공소외 1{서울, 성북구 동소문동 6가 (이하 생략) 거주 공소외 3의 처}과 한 이불속에서 손과 발을 녹이다가 돌연 성정을 일으킨 나머지 공소외 1의 팔을 잡고 성교할 것을 요구 하였으나 동녀가 이에 불응하고 귀가하려고 뿌리치자 피고인은 동녀에게 폭행을 가하여 항거불능케한 후 강간할 것을 결의하고 동녀의 팔소매를 잡아 당겨 이불위에 쓰러뜨리고, 그 배위에 엎드리면서 왼팔로 동녀의 목을 껴안고 오른손으로 동녀의 등을 껴안고, 다리로 동녀의 아랫몸을 덮치고 강제로 2회 키스를 하는 등 동녀에게 폭행을 가하여 항거불능케한 후 피고인의 혁대를 풀으고 하의를 벗으면서 음경을 노출시키는 한편 동녀의 빤스를 벗기려고 하였으나 동녀의 완강한 반항으로 약 10분간 서로 엎치락 뒤치락하는 동안 피고인은 사정을 마치어 기진하고, 동녀는 극도의 경악과 충격을 받아 쇼크를 일으켜 사망하므로서 강간의 목적을 달하지 못하고 미수에 그친 것이다.

evidence scliffing,

1. The defendant made a statement to the same purport as the facts in the judgment of the court below and the trial court at the party; and

1. The statement that is consistent with the facts of the judgment among the statements of Nonindicted 3 and 4 of the witness in the court of original instance.

1. The same statements as indicated in the protocol of interrogation of the accused prepared by the prosecutor are recorded; and

Comprehensively, the certification is sufficient.

The court below's decision is that the defendant's judgment falls under Article 300 and Article 297 of the Criminal Act, and the defendant's imprisonment is three years, and 150 days out of the number of detention days before the judgment of the court of first instance is sentenced in accordance with Article 57 (1) of the Criminal Act.

Although the defense counsel asserted that there was a cancellation of a complaint from the victim before the pronouncement of the judgment in the first instance, there is no evidence to deem that the complaint was cancelled by legitimate procedure even after the recording of the case was made. (The agreement bound in 59 to 60 records of the trial was merely an explanatory document that the victim's husband non-indicted 3 and the defendant agreed to cancel the complaint in the case of this case. Furthermore, the witness non-indicted 3 stated that the agreement in the court of first instance was not completely reached after the above agreement was reached, and that the defendant wishes to punish the defendant. On the other hand, there is no evidence to deem that the complainant had withdrawn the complaint orally or in writing before the pronouncement of the judgment in the first instance. Furthermore, according to the records of the first instance, it is clear that the defendant caused the right of the victim to the right of the second instance and the right of the first instance to the victim in the second instance.)

Although the Defendant seems to have asserted that he was under the influence of alcohol at the time of the crime of this case that he was in a state of loss or lack of the ability to discern things or make decisions, in light of the circumstances, methods, and the situation of the crime of this case committed by the Defendant, it cannot be seen that the Defendant committed the crime of this case under the circumstances where the Defendant lost or lacks the ability to make decisions or make decisions by things, in light of the circumstances, method, and the attitude of the party involved in the crime of this case (the result of the death of the victim non-indicted 1, such as the soar statement, could not have been predicted at the time of the crime of this case, so the Defendant cannot be punished due to rape, as seen in the judgment on the grounds of appeal, but it was recognized that the crime of attempted rape in the judgment was

It is so decided as per Disposition for the above reasons.

Judges Kim Jin-ju (Presiding Justice)