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The prosecutor's appeal is dismissed.
Reasons
1. Although the court below found the Defendant guilty of the facts charged in this case, it erred by misapprehending the legal principles and rendered a judgment of not guilty.
2. Determination
A. The additional prosecutor of the ancillary facts charged maintains the existing facts charged as the primary facts charged at the trial of the party, and subsequently adds the facts charged as stated in Paragraph (1) as follows, and applies for the amendment of the indictment to add "Article 246 (1) and Article 32 (1) of the Criminal Act" to the name of the crime, and applied for the amendment of the indictment to add "Article 246 (1) and Article 32 (1) of the Criminal Act" to "Article 246 (1) of the Criminal Act," and the court was subject to the adjudication
However, the prosecutor's argument of mistake of facts and misapprehension of legal principles on the primary facts charged is still subject to the judgment of this court, and this will be examined first.
B. The lower court’s determination on the Prosecutor’s misunderstanding of the facts and misapprehension of the legal doctrine (as to the primary facts charged) 1) is based on the following circumstances acknowledged by the record: (a) the Defendant was carrying K on his own vehicle, namely, that is, the Defendant was going to a “I” restaurant, which is the gambling place as indicated in the facts charged; (b) K was arrested by the Defendant while gambling in the above restaurant; and (c) D who opened the gambling place was at the time of the prosecutor’s investigation.
In full view of the fact that a person who opened an ordinary gambling room in the outer place pays the oil value to the person who opened the gambling room, and the defendant stated to the effect that he was waiting to receive the oil value and did not directly engage in gambling, and the fact that the above D stated in the court below to the effect that " he was aware of the oil value to the defendant," the evidence submitted by the prosecutor alone is excluded from a reasonable doubt that the defendant committed the crime of opening gambling through functional control with D, etc. in which the defendant opened the gambling room.