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The judgment below
The guilty portion shall be reversed.
Defendant
A shall be punished by imprisonment with prison labor for eight months and by imprisonment for six months.
Reasons
1. Summary of grounds for appeal;
A. The Defendants (with respect to both types of punishment and guilty part of the judgment of the court below)’s sentence (the Defendant A: imprisonment with prison labor for August and Defendant B: imprisonment with prison labor for six months) are too unreasonable.
B. It is reasonable to view that each gambling act committed on or around April 6, 2017, which was found not guilty by a public prosecutor (as to the fact-finding and the acquittal portion of the lower judgment), was committed in the same manner as the fraud act committed on May 6, 2017, and all of them constituted fraud.
Nevertheless, the evidence alone presented by the prosecutor alone is insufficient to recognize that the above gambling act constitutes fraud, and there is no other evidence to acknowledge it, and the judgment of the court below which acquitted the defendant on this part of the facts charged is erroneous in the misapprehension of facts.
[On the other hand, the prosecutor stated only the “guilty person” on the petition of appeal filed on December 4, 2019 and the statement of appeal filed on January 17, 2020 as the grounds for appeal, but on the first day of August 18, 2020, the appellate brief was not timely filed on August 18, 2020, stating the grounds for appeal as “the fact-finding and unfair sentencing.” Therefore, the assertion of the above unfair sentencing newly made after the deadline for submitting the appellate brief cannot be deemed a legitimate grounds for appeal, and even if ex officio examination is conducted, the lower court’s sentencing is deemed unreasonable on the grounds of considering the change of circumstances in the court’s application, as seen in paragraph (3) below.
A. The establishment of facts constituting an offense in a criminal trial ought to be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt, and thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that such conviction would lead to such a conviction, even if the defendant’s assertion or defense is inconsistent or unreasonable, it is a defendant’s interest.