[군무이탈,상습절도][집19(3)형,030]
The case holding that since the indictment written in the facts charged that the defendant habitually stolen another's property four times thereafter, including intrusion upon the "A" house, stolen one radio device, and then stolen another's property, the indictment is invalid on the grounds that the specific facts constituting the crime are not specified.
The indictment in the facts charged that "the defendant has habitually stolen another person's property on four occasions thereafter", including by intrusion upon the house "A", is invalid because there is no specific statement in the indictment.
Article 289(4) of the Military Court Act, Article 254(4) of the Criminal Procedure Act
Defendant
The Army of the first instance, the Army of the second instance, the High Army of the second instance, and the High Army of the second instance, etc., shall be punished by imprisonment with prison labor and imprisonment with prison labor for not more than 70 years.
The judgment of the court below is reversed, and the case is remanded to the Korea Army, High Military Association.
The grounds for appeal by the defense counsel
According to Article 289(4) of the Military Court-Martial Act, entry in the facts charged shall be made by specifying the time, date, place, and method of the crime so that the facts can be specified. Therefore, the indictment without stating the specific facts of the crime is invalid.
Upon review of the record, the judgment of the ordinary law council of the first instance supported by the court below accepted the facts charged and recognized the single criminal facts of "the defendant, at around December 28, 1970, committed habitually theft of another person's property four times thereafter, including theft of an amount equivalent to KRW 7,500 from the intrusion radio price at the former Maok-gun (the third administrative district omitted), the former Maok-gun (the third administrative district omitted), the non-indicted, and then stolen another person's property." However, since the part of the defendant's theft of another person's property by intrusion upon the house of the non-indicted, which was 4 times thereafter, was stated only in the larceny facts that the defendant's possession of the property was stolen between the two sides and the right of the non-indicted, it did not contain any concrete criminal facts that constituted only the abstract criminal elements, and there is no error of law by accepting the indictment as it is invalid in accordance with the above reasoning.
Therefore, the judgment of the court below is not reversed because there is a violation of law that affected the judgment of the court below, and it is so decided as per Disposition by the assent of all participating judges.
Supreme Court Judge Kim Young-chul (Presiding Judge) (Presiding Justice) and Kim Young-chul Ho-ho