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The judgment of the court below is reversed.
The sentence of sentence against the defendant shall be suspended.
Reasons
1. According to the summary of the grounds of appeal, even if the J did not gambling, the Defendant can be found to have transmitted a text message containing false facts that J ambling as stated in the instant facts charged.
Nevertheless, the judgment of the court below which acquitted the facts that the J actually stuffed and published false facts related to gambling on February 10, 2015 and February 11, 2015, is erroneous in the misapprehension of the judgment, which affected the conclusion of the judgment.
2. On February 11, 2015, the lower court found the Defendant guilty of the portion of publication of false facts related to investigation on February 11, 2015 among the facts charged, and found the Defendant not guilty on February 10, 2015, and found the Defendant not guilty on the part of publication of false facts related to investigation on February 11, 2015, and found the Defendant not guilty on the part of publication of false facts related to investigation on February 11, 2015.
In regard to this, a prosecutor appealed only the portion not guilty among the judgment below, and the defendant voluntarily withdrawn the appeal. On February 11, 2015, which was found guilty at the court below, the part of the announcement of false facts related to gambling and the part of the announcement of false facts related to the investigation of the defendant on February 11, 2015, which was found guilty at the court below, constitutes a single crime, and thus, the portion of conviction is also judged in accordance with the indivisible principle, but the part of the judgment of the court below was already judged in the first instance, and was in fact exempted from the object of the attack and defense between the parties, and thus, it cannot be determined in the first instance trial (see, e.g., Supreme Court Decision 2015Do18070, Feb. 18, 2016). Therefore, with respect to the convicted portion of the judgment of the court below, it shall not be determined separately, based on the conclusion of the court below.
3. We examine ex officio the grounds for appeal by the prosecutor ex officio.
l.p. g., p.