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The prosecutor's appeal is dismissed.
Reasons
1. In light of the background leading up to the gambling of the gist of the grounds for appeal, relationship with accomplices, size of the market compared to income, criminal records, etc., the Defendant’s gambling act exceeds the degree of temporary recreation.
Nevertheless, the court below found the Defendant not guilty on the grounds that it is difficult to view the Defendant’s gambling to exceed the level of temporary recreation. The court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.
2. Determination
A. The summary of the facts charged is as follows: (a) the Defendant, along with B, C, and D, from around 21:00 on September 30, 2018 to around 23:45 on the same day, 270,000 won in the form that: (b) from the office of B located in Busan Northern-gu, by using the card 52 to pay 1,000 won to the tension in accordance with the size of the number; and (c) the Defendant shuld “hule” in the form that: (a) the Defendant 52 card was divided into seven parts; and
B. The lower court rendered a not guilty verdict on the charges on the grounds that, in full view of the following circumstances acknowledged by the evidence duly admitted and examined by the lower court, the evidence submitted by the prosecutor alone cannot be deemed as having exceeded the level of temporary entertainment and there is no other evidence to acknowledge otherwise.
① At around 23:30 on September 30, 2018, the Defendant arrived at a gambling place and 20 minutes later. Even if following the statement made by those who were in the same time, the number of times the Defendant was gambling did not exceed 5-6 times.
② The content of gambling by a person, including the Defendant, was paid KRW 1,00 to the winners by using a cululous “hullar game” game, and only 1,000 won per time, and the price that can be acquired due to gambling was not significant.
③ Although the Defendant had been subject to three times punishment for gambling in the past, the crime of gambling committed in the past is identical to the instant case in which the amount of one time of money transferred to KRW 2 million and only KRW 1,000,000.