In order to constitute a ground for retrial under Article 420 subparag. 2 of the Criminal Procedure Act, evidence in the original judgment should be proven to have been false by a final judgment. Here, “the testimony admitted as evidence in the original judgment” refers to the testimony adopted as evidence among the grounds in the original judgment and quoted in recognizing the facts constituting a crime.

(see Supreme Court Order 87Mo11, Apr. 23, 1987). Where testimony was made in a separate case from the defendant's case subject to review, and the testimony was submitted and employed as a documentary evidence for the defendant's case subject to review, the case cannot be deemed to constitute "a testimony based on the original judgment" under Article 420 subparagraph 2 of the Criminal Procedure Act. Thus, even if the testimony was proved to be false by a final judgment, it cannot be included in the grounds for retrial under subparagraph 2 of the same Article.

Therefore, we cannot accept the allegation in the judgment below that there are grounds for a request for retrial under Article 420 subparagraph 2 of the Criminal Procedure Act.

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal.

In such a case, the argument that the lower court erred by misapprehending the legal principles cannot be a legitimate ground for appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.