[상습야간주거침입절도·강도상해·도주피고사건][고집1975형,264]
Whether the defect can be seen as cured if there is no objection of the defendant if the defendant has tried without being served a duplicate of the indictment on the defendant.
Even if a trial was commenced without being served with a duplicate of indictment on the accused, as long as the accused responded to the trial without raising an objection to it in the process of the trial, the above procedural defect will be cured.
Article 266 of the Criminal Procedure Act
Defendant
Defendant
Gangnam Branch Court of the first instance (74 senior 78,75 senior group 18,74 senior group 749(combined))
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for seven years.
85 days from the detention days before the sentence of the original judgment shall be included in the above sentence.
The evidence Nos. 1, 2 (one set of two gold-half, one gold-half), 3, 4, and 5 (3 copies of 500 won guest 2, 100 won guest 2, 100 won guest 2, 100 won guest 10) of Chuncheon District Prosecutors' Office, which was seized, shall be returned to the victim non-indicted 1, the victim non-indicted 2, the evidence Nos. 6 (humf 1) of 1, 2 (1), 3 (1 sheet), 7 (1) of 5 (1) of 1, 1975 guest 23 of the Chuncheon District Prosecutors' Office, Gangwon District Prosecutors' Office (1), 1, 3 (1 sheet of military guest 1), and 7 (1) of the evidence shall be returned to the victim's name.
The summary of the grounds for appeal by the defendant is as follows: first, the court below did not deliver a copy of the indictment to the defendant, which led to a violation of law that sentenced the judgment by proceeding with the procedure of the trial without knowledge of applicable provisions in the indictment and the charges; second, the defendant did not commit the crime of robbery while the crime was committed; second, despite that it was merely simple larceny, the court below found the defendant guilty of the crime of robbery injury by robbery; third, the judgment of the court below on the defendant's punishment is too unreasonable; third, the judgment of the court below is too unreasonable; and the summary of the grounds for appeal by the defendant's defense counsel is that the judgment of the
First, on the first ground of appeal by the defendant, health consideration;
According to the service document of 8 pages of the original trial records, the fact that the copy of the indictment in the case of the original trial 74Da178 can be recognized as being delivered to the defendant, and with respect to the copy of the indictment in the case of the original trial 75 Godan18, the defendant cannot find any trace of delivering the copy of the indictment in the records, but it is evident in the records that the defendant responded to the trial without raising any objection to it in the process of the original trial. Thus, even if the court below committed an unlawful act for which the copy of the indictment was not served, such error is already cured. Therefore, the grounds for appeal cannot be accepted.
Furthermore, according to the defendant's statement in the court below, the defendant's statement in the court below, each interrogation protocol of the defendant prepared by the prosecutor and judicial police officer who conducted legitimate investigation of evidence, and each protocol of statement as to the defendant, non-indicted 3, non-indicted 4, and non-indicted 4 prepared by the judicial police officer, and the statement of injury diagnosis as to non-indicted 6's non-indicted 4 as to the defendant in the original trial. However, the judgment of the court below is sufficient to recognize the robbery, injury, and escape of the defendant at the time of the original trial. However, as evidence as to the above crime, the defendant's statement in the court below's court and the statement of the suspect examination as to the defendant prepared by the prosecutor and judicial police officer, which were prepared by the court below's disposition of evidence, were not adopted as evidence, and the court below acknowledged the above crime only with the defendant's confession statement without any supporting evidence, which affected the conclusion of the judgment, and since the above crime was concurrent with other criminal facts at the time of the original trial against the defendant, the judgment unnecessary to reverse the judgment below and decide.
(Criminal Facts and Summary of Evidence)
In addition to the written statement of Nonindicted 3, 4, and 5, which was prepared by the judicial police officer, and the written diagnosis of injury to Nonindicted 4 in Nonindicted 6’s written statement and the written diagnosis of injury to Nonindicted 4, which was written by the judicial police officer, as evidence, all of them are cited according to Article 369 of the Criminal Procedure Act.
(Application of Acts and subordinate statutes)
Of the judgment below of the defendant, the defendants shall be sentenced to imprisonment with prison labor within the scope of punishment under Articles 332, 330, and 335 of the Criminal Act, the injury by robbery shall be sentenced to Articles 337 and 335 of the same Act, and the escape shall be sentenced to Article 145 (1) of the same Act, and the defendant shall be sentenced to a limited imprisonment with prison labor for the crime of robbery and injury by robbery, and the defendant shall be sentenced to a repeated crime under Article 35 and the proviso of Article 42 of the same Act. Since the above crimes are concurrent crimes under the former part of Article 37 of the same Act, Article 38 (1) 2, Article 50 and the proviso of Article 42 of the same Act are concurrent crimes under Article 38 (1) 2 of the same Act, Article 38 and Article 42 of the same Act, Article 37 of the same Act shall be included in the above punishment among the detention days prior to the sentence, Article 57 of the same Act shall be included in the above punishment, Article 8533, subparagraph 1, subparagraph 3, subparagraph 2, subparagraph 3, subparagraph 1, 3, 9 through 3, 1, 7, and subparagraph 3, 9.
It is so decided as per Disposition for the above reasons.
Judges Shin Jae-chul (Presiding Judge)