[강도강간,강도치상,특수강도,사기,폭력행위등처벌에관한법률위반,사문서위조,특수절도,강도상해,사문서위조행사,특정범죄가중처벌법위반,도로교통법위반][집38(4)형,501;공1991.2.15.(890),678]
A. In a case where Co-defendant B consented to the interrogation protocol of the co-defendant B prepared by the prosecutor as evidence, but the court acknowledged the formation and voluntariness, whether the defendant Eul's criminal facts in the above interrogation protocol is admissible as evidence (affirmative)
A. The protocol of examination of the co-defendant A prepared by the public prosecutor as evidence may be used as evidence of guilt against the defendant Eul, even if the co-defendant A consented to the establishment and arbitability in the first instance trial.
B. Since there was a mutual communication between one of the accomplicess in robbery with regard to the fact that if one of the accomplices in robbery commits violence against the victim and inflicts an injury on the victim during the opportunity of robbery, other accomplices would also commit the assault as a means of taking property and taking other property. Therefore, even if there was no conspiracy as to the specific injury, the perpetrator is liable for the injury resulting from the robbery and the injury resulting from robbery.
A. Article 312(1) of the Criminal Procedure Act
Supreme Court Decision 88Do1844 delivered on December 13, 1988 (Gong1989,128) 89Do2426 delivered on February 13, 1990 (Gong1990,708) 90Do1887 delivered on October 12, 1990 (Gong190,2343)
Defendant 1 and one other
Attorneys Lee Yong-ho et al.
Defendant 1, Seoul High Court Decision 90No1755 delivered on August 30, 1990, Defendant 2, Seoul High Court Decision 90No1755, 3032 delivered on September 27, 1990
All appeals are dismissed.
Among detention days after an appeal, 110 days shall be included in the calculation of the original sentence, and 80 days shall be included in the calculation of the original sentence.
1. We examine each of the grounds for appeal by Defendant 1 and his defense counsel (the national election before resignation and dismissal) together.
On the first ground for appeal
In light of the reasoning of the judgment of the court below and the reasoning of the judgment of the court of first instance cited by the court below, we affirm the fact-finding of the same defendant, and there is no violation of the rules of evidence.
Examining the record, it is also justifiable in the judgment of the court below that Defendant 2’s protocol of interrogation of Defendant 2 prepared by the public prosecutor is acknowledged as the formation and arbitability at the court of first instance. Thus, even if Defendant 1 consented to it as evidence, it can be used as evidence of guilt against Defendant 1’s criminal facts.
In addition, if the facts are acknowledged by the court below, the legal purpose of the court below as to special robbery is just and there is no error of law by misapprehending the legal principles as to joint crimes.
In a case where a person among the accomplices in robbery committed an assault against the victim in an opportunity for robbery, there was a mutual communication with the other accomplices about the fact that other accomplices will commit an assault as a means of taking property taking. Thus, even if there was no conspiracy as to specifically the injury, it is a party member's opinion that he is responsible for the result of the assault as an accomplice (see Supreme Court Decision 8Do1844, Dec. 13, 198). Thus, the court below did a special robbery jointly with the defendant, etc., and in this case, it cannot be said that the court below erred by misapprehending the legal principles as to the co-principal.
Therefore, all arguments are without merit.
On the second ground for appeal
In light of the various circumstances, which are the conditions for sentencing against Defendant 1 through records, it is difficult to deem that the sentencing of the lower court against the same accused constitutes a case where there is a significant reason to recognize that the sentencing of the same accused is extremely unfair.
There is no reason for this issue.
2. Defendant 2 and his state appointed defense counsel’s grounds of appeal are also examined.
Upon examining the records, the fact-finding by the court below against Defendant 2 is acceptable, and there is no violation of the rules of evidence against the defendant, and if the facts are found as recognized by the court below, the court below's legal use against the defendant is justified.
The court below is just in applying Article 2(2) of the Punishment of Violences, etc. Act and Article 319(1) of the Criminal Act to the defendant's intrusion upon the defendant's residence, and it cannot be said that only one serious crime is established by combining other serious crimes committed after entering a residence. Further, the court below did not err in the misapprehension of the law as to the fabrication of private document, uttering, and fraud as joint principal offender.
In addition, considering the various circumstances that are conditions for sentencing through the records, the sentencing of the court below against the same accused cannot be deemed as a case where there is a significant reason to recognize that the sentencing of the same accused is extremely unfair. Therefore, the argument is without merit.
3. Therefore, all appeals are dismissed, and part of the number of detention days after the appeal is included in each original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ansan-man (Presiding Justice)