move to the right menu  move to the main contents



Jump menu


Home > Supreme Court of Japan


2017 (A) 837

2018.07.13
2017 (A) 837
Keishu Vol. 72, No. 3
Judgment on a case where the Supreme Court found that the judgment of prior instance contained illegality in that it erred in the interpretation and application of Article 382 of the Code of Criminal Procedure, under the circumstances where the judgment of first instance convicted the accused by finding that he committed homicide and theft, and where the judgment of prior instance found that the judgment of first instance contained factual errors
Case under public prosecution for robbery and homicide
Judgment of the Second Petty bench, quashed and remanded
Hiroshima High Court, Matsue Branch, Judgment of March 27, 2017
The judgment of prior instance declared that the judgment of first instance, which convicted the accused by finding that he committed homicide and theft, contained factual errors. On the whole, the judgment of prior instance simply split up the discussions contained in the judgment of first instance into pieces and analyzed individual pieces, without making an analysis from the viewpoint of overall evaluation of indirect facts with certain inference effect arising from circumstantial evidence. In this regard, the judgment of prior instance failed to sufficiently demonstrate that the judgment of first instance was unreasonable in light of logical and empirical rules, among others (see the judgment text). The judgment of prior instance thus contains illegality in that it erred in the interpretation and application of Article 382 of the Code of Criminal Procedure, and should inevitably be quashed in accordance with Article 411, item (i) of the same code.
Article 382 and Article 411, item (i) of the Code of Criminal Procedure



Code of Criminal Procedure

Article 382

When an appeal to the court of second instance has been made on the grounds that there was an error in the finding of facts and it is clear that that error has affected the judgment, facts which appear in the case records and evidence examined by the court of first instance which are sufficient to show that there is an error which would clearly affect the judgment shall be cited in the statement of the reasons for appeal.

Article 411

Even in absence of grounds as prescribed in the items of Article 405, the final appellate court may render a judgment to reverse the judgment of the court of first or second instance, on any of the following grounds when it deems that not doing so would clearly be contrary to justice:

(i) There is a violation of laws and regulations which would have affected the judgment.

(ii) The degree of punishment is seriously unfair;

(iii) There is an erroneous finding of a material fact which would have affected the judgment.;

(iv) There are grounds to request a retrial;

(v) There was abolition or a change of punishment or a general pardon was granted after the judgment was rendered.
The judgment of prior instance is quashed.

This case shall be remanded to the Hiroshima High Court.
The public prosecutor’s statement of reasons for final appeal, including the allegation that the judgment of prior instance violated judicial precedents, actually consists of mere allegations of legal violations and factual errors, with none of which constituting any of the grounds for final appeal specified in Article 405 of the Code of Criminal Procedure.

However, after ex officio investigation considering the reasons given by the public prosecutor, the Supreme Court finds that the judgment of prior instance should inevitably be quashed in accordance with Article 411, item (i) of the Code of Criminal Procedure, for the following reasons:

1. A gist of the charged facts in this case after the alteration of the counts is as follows.

Around 9:40 p.m. on September 29, 2009, the accused rummaged for valuables in the office on the second floor of the new wing (hereinafter referred to as the “Office”) of a hotel located in Yonago City, Tottori Prefecture (hereinafter referred to as the “Hotel”). The accused was found by manager A (aged 54 at that time) of the Hotel and decided to rob him of valuables. With the intention of killing him, the accused suppressed the manager’s resistance by such means as throwing his head against a wall and wringing his neck with a string-like material, robbed him of cash in the approximate amount of 432,910 yen which was found in the office and was under the manager’s supervision. In doing so, the accused, through the assault described above, inflicted injury on the manager such as right temporal bone fracture, cerebral contusion, and subdural hematoma with persistent disturbance of consciousness, killing him on September 29, 2015 by causing him to die at the hospital he had been hospitalized, due to multiple organ failure resulting from sepsis caused by the aforementioned persistent disturbance of consciousness.

2. While the accused challenged his identity as the criminal, the court of first instance found that the accused was the criminal in this case for the following reasons in summary, denied his intention to rob, found him guilty of homicide and theft of cash in the approximate amount of 268,000 yen, and sentenced him to 18 years of imprisonment.

(1) It is found that the criminal in this case took cash in the approximate amount of 268,000 yen, including at least two hundred and several dozen one-thousand-yen bills, from the Office. The accused deposited 230 one-thousand-yen bills into a savings account held under his name through an ATM approximately 12 hours after the occurrence of the incident in question. Taking also into account that a person would not normally carry such a large volume of one-thousand-yen bills with him in his daily life, it is difficult to assume that the accused happened to carry and deposit these one-thousand-yen bills at some time during the hours very close to the occurrence of the incident in question. This fact strongly suggests that the accused is the criminal in this case unless exceptional circumstances exist. The accused had worked at the Hotel as a shop manager until approximately two weeks before the incident and was on a leave of absence at the time of the incident. The accused states to the following effect: “The one-thousand-yen bills I deposited were saved by myself by changing my own ten-thousand-yen bills into one-thousand-yen bills collected as sales proceeds from the slot machines at the Hotel, in preparation for shortages of one-thousand-yen bills in the cash drawer during money collection (the cash drawer contains cash in the approximate amount of 50,000 yen, including approximately 40 one-thousand-yen bills, which is kept at the cash register at the front desk in preparation for failures of, or shortages of small change in, automatic payment machines at guest rooms).” However, this statement is not reliable as it contains various unreasonable points.

(2) It is found that the incident in question occurred during the time from around 9:34 p.m. to a few minutes before around 10:12 p.m. on the aforementioned date. It is found that: around 8:00 p.m., the accused was asked by B, who was an employee of the Hotel, over the phone to show B, among other things, how to collect sales proceeds from slot machines in the guest rooms; around 9:13 p.m., the accused arrived near the Hotel; and around 10:00 p.m., the accused met C, another employee of the Hotel, near the staff entrance of the Hotel. Therefore, the accused had a chance to commit the crime in question.

(3) When looked from outside the building, the Office had no particular difference from other guest rooms, except that it had no exclusive parking space on the first floor unlike other guest rooms. In addition, considering the location of the Office and the locking practice of the Hotel, it is fair to say that the Office was the most difficult-to-access place in the buildings of the Hotel for people who did not know the internal structure of the Hotel. The accused, who knew the internal structure, locking practice, etc. of the Hotel, matches the criminal profile inferred from these indirect facts, etc.

(4) In addition to the above, the fact that both of the following facts exist cannot reasonably be explained unless the accused is considered the criminal: (i) the accused’s series of acts, i.e., traveling outside the prefecture immediately after the incident in question, shutting off communications with his wife and girlfriend, and ignoring requests for appearance from police officers, are considered to constitute an escape from arrest for committing the incident in question; and (ii) none of the employees of the Hotel other than the accused could have committed the crime in question. Therefore, the accused is the criminal in this case.

3. The public prosecutor and the accused’s counsel each appealed against the judgment of first instance. The public prosecutor’s appeal was on the grounds of factual errors, in that the court of first instance rejected the robbery and murder charges and found the accused guilty of homicide and theft. The counsel’s appeal was on the grounds of factual errors, etc. in that the court of first instance found that the accused committed homicide and theft. The court of prior instance accepted the counsel’s statement of reasons for appeal, ruling that the judgment of first instance contained factual errors in that it found that the accused was the criminal. The court of prior instance quashed the judgment of first instance and acquitted the accused, without discussing the public prosecutor’s statement of reasons for appeal.

4. The Court’s decision

It is appropriate to consider that an error in the finding of facts as referred to in Article 382 of the Code of Criminal Procedure means that the court of first instance’s fact finding is unreasonable in light of logical and empirical rules, among others. In order for the court of second instance to declare that the judgment of first instance contain errors in the finding of facts, the court of second instance must specifically demonstrate that the court of first instance’s fact finding was unreasonable in some respects in light of logical and empirical rules, among others (Supreme Court, 2011 (A) 757, Judgment of the First Petty bench of February 13, 2012, Keishu Vol. 66, No. 4, p. 482). However, the Supreme Court cannot consider that the court of prior instance has sufficiently demonstrated that the court of first instance’s fact finding was unreasonable in some respect in light of logical and empirical rules, among others.

(1) The Supreme Court considers that the court of first instance concluded that the accused was the criminal in this case, based mainly on the circumstances described in 2. (1) through (3) above and taking the circumstances described in 2. (4) above also into account. By contrast, the judgment of prior instance, on the whole, simply split up the discussions contained in the judgment of first instance into pieces and analyzed individual pieces, without making an analysis from the viewpoint of overall evaluation of indirect facts with certain inference effect arising from circumstantial evidence, as further described below.

(2) The court of prior instance found that, of the court of first instance’s findings described in 2. (1) above, finding the following facts was not unreasonable: (i) The fact that the accused deposited 230 one-thousand-yen bills into a savings account held under his name approximately 12 hours after the occurrence of the incident in question; and (ii) the fact that the criminal in this case took cash in the approximate amount of 268,000 yen, including at least two hundred and several dozen one-thousand-yen bills, from the Office. In the meantime, the judgment of first instance also states as follows: “Taking also into account that a person would not normally carry such a large volume of one-thousand-yen bills with him in his daily life, it is difficult to assume that the accused happened to carry and deposit these one-thousand-yen bills at some time during the hours very close to the occurrence of the incident in question. This fact strongly suggests that the accused is the criminal in this case unless exceptional circumstances exist.” With respect to this statement, the court of prior instance rules as follows, in summary: “In light of the fact that there is no direct evidence supporting that the 230 one-thousand-yen bills carried by the accused were the money taken, and the fact that the burden of proving that the accused is the criminal lies with the public prosecutor, the Hiroshima High Court, Matsue Branch cannot find that the accused is the criminal as long as the accused’s explanations about the source of the bills cannot be completely excluded as false, even though the reliability of his explanations is not without some doubt. The judgment of first instance’s framework for decision is inconsistent with the principle of presumed innocence and cannot possibly be upheld.” Furthermore, with respect to the court of first instance’s denial of the reliability of the accused’s statement—“The one-thousand-yen bills I deposited were saved by myself by changing my own ten-thousand-yen bills into one-thousand-yen bills collected as sales proceeds from the slot machines at the Hotel, in preparation for shortages of one-thousand-yen bills in the cash drawer during money collection”—, the court of prior instance ruled that the above statement of the accused cannot be excluded as false, and declared that the judgment of first instance contained factual errors.

However, the judgment of first instance was correct in stating that a person would not normally carry as many as 230 one-thousand-yen bills with him in his daily life. The objective fact that the criminal in this case stole two hundred and several dozen one-thousand-yen bills from the Hotel, and that the accused deposited 230 one-thousand-yen bills through an ATM (the relevant evidence reveals that the ATM was of a financial institution located in Yonago City) approximately 12 hours after the theft and immediately after the relevant financial institution opened, should itself constitute circumstances which reasonably suggest that the two groups of one-thousand-yen bills were identical and that the accused is the criminal. However, the text of the judgment of prior instance does not suggest that the court of prior instance analyzed these circumstances from this viewpoint. The inference effect of these objective facts should be determined by taking into account the possibility that the accused carried the 230 one-thousand-yen bills due to circumstances independent of this case. While the judgment of first instance’s wording, “This fact strongly suggests that the accused is the criminal in this case unless exceptional circumstances exist,” may somewhat exaggerate the level of inference effect, it is obvious from the text of the judgment of first instance that the court of first instance denied the reliability of the accused’s explanations about the circumstances in which he got the one-thousand-yen bills, after analyzing the circumstances based on both parties’ allegations and proof, and concluded that the accused was the criminal after taking other indirect facts comprehensively into account. Taken these aspects as a whole, the judgment of prior instance’s ruling that judgment of first instance’s framework for decision is inconsistent with the principle of presumed innocence is off the mark.

With respect to the accused’s explanations about the circumstances in which he got the one-thousand-yen bills, the court of first instance denied the reliability of the explanations for the following reasons, in summary:

(i) It is difficult to assume that the accused needed to personally carry a large volume of one-thousand-yen bills for such purposes as exchanging money and replenishing the cash drawer, in light of the following facts: (a) None of the employees of the Hotel has seen or heard that the accused carries a large volume of one-thousand-yen bills; (b) according to the employees’ testimony and relevant payment and receipt slips, there have been no instances where one-thousand-yen bills in the cash drawer actually ran short or where employees were unable to change larger amount bills into one-thousand-yen bills found in the automatic payment machines and to replenish the cash drawer; and (c) the accused has stated himself to the following effect: “In case of necessity for money exchange purposes, the victim entrusted to me a spare key to the safe (in which a total of approximately 450,000 yen, consisting of a few hundred one-thousand-yen bills and coins, was usually kept for change purposes and whose content was timely replenished by the victim, approximately on a weekly basis, when he visited the Hotel for money collection or other errands) at the Office and I have actually taken one-thousand-yen bills in the total amount of 30,000 yen from that safe.”

(ii) While the accused said he needed to personally carry a large volume of one-thousand-yen bills for his duties, he has given no reasonable explanation about the reason for suddenly letting go of the one-thousand-yen bills immediately after the incident, even though he was scheduled to soon return to work after the leave of absence, at the time of the incident; and

(iii) It is considerably doubtful that the accused saved his pocket money in excess of 200,000 yen, considering that the accused had continued to be in arrears in the payment of land rent for his house and public utility charges, had not given any living expenses to his wife for about two months prior to the incident, and gave her only 5,000 yen when she demanded living expenses from him four days before the incident.

In response to the above, the court of prior instance declared that it would “examine whether the counsels’ allegations and the accused’s statements about the source of the 230 one-thousand-yen bills can be excluded as false” and split up the discussions contained in the judgment of first instance into pieces, and concluded that the judgment of first instance’s conclusion was unreasonable based on the accused’s explanations without scarcely giving reasons for the inability to deny the reliability of the accused’s explanation. The Supreme Court cannot consider that the judgment of prior instance has specifically demonstrated that the judgment of first instance’s aforementioned decision, which denied the reliability of the accused’s statements, was unreasonable.

(3) The judgment of prior instance also states that, while the court of first instance’s finding that “the accused had a chance to commit the crime in question” based on the facts described in 2. (2) above is not unreasonable, it is obvious that the court of prior instance cannot infer that the accused is the criminal solely from this fact.

However, according to the facts confirmed by the judgment of first instance, the accused, at the request of B, went to the Hotel to show B, among other things, how to collect sales proceeds from slot machines in the guest rooms, arrived near the Hotel by around 9:13 p.m., and stayed around the Hotel for more than 40 minutes until the accused met C at the Hotel around 10:00 p.m. When coupled with the circumstances specified in 2. (1) above, these facts must potentially constitute circumstances that reasonably suggest the accused’s involvement in the incident which occurred at the Hotel around then. However, the text of the judgment of prior instance does not suggest that the court of prior instance considered these circumstances comprehensively from this viewpoint.

(4) As described above, the judgment of prior instance on the whole simply split up the discussions contained in the judgment of first instance into pieces and analyzed individual pieces, without making an analysis from the viewpoint of overall evaluation of indirect facts with certain inference effect arising from circumstantial evidence. In this regard, the Supreme Court cannot consider that the judgment of prior instance sufficiently showed that the judgment of first instance was unreasonable in light of logical and empirical rules, among others. The judgment of prior instance, which declared that the judgment of first instance contained factual errors, contained illegality in that the judgment of prior instance erred in the interpretation and application of Article 382 of the Code of Criminal Procedure. This illegality obviously affected the judgment, and it would be extremely unjust if the judgment of prior instance were not quashed.

Accordingly, the Supreme Court decides to quash the judgment of prior instance in accordance with Article 411, item (i) of the Code of Criminal Procedure and to remand this case to the Hiroshima High Court to have it further and fully hear the case in accordance with the main clause of Article 413 of the same code, and unanimously decides as set forth in the main text.

In the presence of Public Prosecutors, KAWAHARA Ryuji, KANNO Toshiaki
Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki

Justice KANNO Hiroyuki

Justice MIURA Mamoru
(This translation is provisional and subject to revision.)