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1997 (A) 479

1999.12.10
1997 (A) 479
Keishu Vol.53, No.9, at 1160
Judgment upon the case concerning that an appeals court judgment that maintained the sentence of life imprisonment in the first instance court judgment was quashed because the sentence period was considered inappropriate
Case of forgery of private sealed documents, act of forgery, and burglary and murder
Judgment of the Second Petty Bench, quashed and remanded
Hiroshima High Court, Judgment of February 4, 1997
The defendant murdered in a brutal and cold-blooded manner an elderly woman who lived alone, the defendant performed the primary role in the crime of burglary and murder with the accomplice, and was sentenced to prison for life imprisonment for the crime of burglary and murder and serving time in prison, however, the defendant performed the above crime again while released on parole, and when these points (see precedents) are considered, the court finds the crime of the defendant to be very serious, and unless there are particularly extenuating circumstances, this court has no choice but to elect the death penalty, and this court does not recognize the extenuating circumstances stated in the second instance court judgment to constitute sufficient reason not to opt for the death penalty, therefore, the second instance court judgment, which maintains the sentence of life imprisonment by the first instance court judgment, must be quashed as the decision regarding the level of the sentence erred considerably.
Article 11 of the Penal Code (before amendment by Law No.91, 1995)
The death penalty shall be performed in prison by hanging. The person who receives the death penalty shall be detained in this prison until such time of execution.

Article 240 of the Penal Code (before amendment by Law No.91, 1995)
In the event the a burglar harmed a person, the burglar shall be sentenced to life or a period of more than seven years, and in the event the burglar had murdered the person, the burglar shall be given a sentence of death or life imprisonment.

Article 411(ii) of the Code of Criminal Procedure
Appeals court may still quash second instance court decisions in its judgment when the court finds the cause below and finds that there will be serious injustice if second instance court decisions are not quashed, in the event the court does not find any of the causes set forth in Article 405.
(2) In the event the weight of the sentence is improper.
The portion regarding the defendant in the second instance court judgment shall be quashed
This case shall be remanded to Hiroshima High Court.
The argument in the jokoku appeal by the prosecutor is in essence a claim of improper sentence length, and this reason does not satisfy the jokoku appeal reason under Code of Criminal Procedure Article 405.
However, with this argument under consideration, when this court investigated with the authority granted under this jurisdiction, this court found that the portion on the defendant in the second instance court judgment must be quashed for the reasons below.
1. This case is a matter wherein the defendant, who was given a sentence of life imprisonment for the crime of burglary and murder, committed burglary and murder, forgery of private sealed documents, act of forgery, and fraud while on parole. That is, the defendant conspired with defendant B, who was a colleague from his former workplace, and planned to murder C, who he knew (who was then 87 years old), and steal money and goods, and manipulated the woman and took her into the mountains, gave her a forceful blow to the back of her head with a rock and made her lose consciousness, tied a vinyl rope, which he had ready, around her neck and bound her and strangled her, stole her Japanese bank passbook and other items, and returned to her to search for money and goods (first instance court judgment, decision one, burglary and murder), and furthermore the defendant alone acted or conspired with a female acquaintance to defraud and withdraw almost 310,000 yen in cash in about three transactions from, among others, banks by using this Japanese bank passbook (private sealed documents, act of forgery, and fraud in 1 to 3 under no 2 of this judgment).
2. The second instance court decision rendered the following judgment on the weight of the sentence upon the defendant. With respect to the burglary and murder in this case, there were no extenuating circumstances in his motives, and the developments that led to the murder were premeditated and malicious, and the manner of the murder was cold-blooded and brutal, and this court cannot not find the result of these developments to be tragic, and the second son of the victim, who is the deceased's family, has requested the maximum sentence be given to the defendant, and the impact of this case upon society is major. The defendant was given a sentence of life imprisonment for the crime of burglary and murder, and committed all of these crimes while out on parole from this sentence, and played the primary role in the crime of the burglary and murder in this case, and also after these crimes the defendant committed the crime of, among others, fraud in this case, and in light of the fact that the defendant continued to live a degenerate life, this court finds that the criminal and anti-society nature of this defendant are clear. Summarizing the above points, the crimes were very malicious, and the Defendant is fully responsible for the crimes, and there is justified reason for the prosecutor to opine that the defendant should be given the maximum sentence, however, there is not no reason in the first instance court judgment not to elect the death penalty, therefore this court can endorse the weight of the sentence in this judgment that rendered the defendant a life in prison.
3. Of the reasons in the First Instance court judgment as reasons not to elect the death penalty, the three following points were considered and endorsed by the second instance court. Firstly, the burglary and murder in this case was premeditated, however, the defendant made decisions to commit the crimes consecutively as he considered the situation of the victim, and search for a location to commit the crime by trial and error, and therefore there was little premeditation to commit these crimes by the defendant. Secondly, the defendant confessed to the crimes immediately after the arrest, and himself realized afterwards at all times his full responsibility for the crimes, and is prepared to receive the maximum sentence, and when this court considers the fact that his behavior while he served the previous sentence was respectable and he was allowed a relatively early parole, this court cannot absolutely state that the defendant cannot be reformed or rehabilitated. Thirdly, in the cases decided in the past ten years, all defendants who were given a sentence of life imprisonment and committed a burglary and murder while out on parole were all given the sentence of the death penalty, however, when this case is compared to these other cases, the extenuating circumstances of the defendant are greater since the crimes were not as malicious, with respect to the brutality and tenacity of the method of murder and criminal history.
4. The death penalty is the maximum and most severe sentence available, and there is no question that the court must apply this penalty carefully. However, as indicated by a precedent (Supreme Court 1981 (A) No.1505, Second Petty Bench judgment July 8, 1983, Keishu Vol.37, No.6, at 609), under the current law and regulation on the system of the death penalty, upon review by the court of the maliciousness, motivation, and type of crime, particularly the brutality and tenacity of the method of murder, and the seriousness of the result, particularly the number of victims murdered, pain and suffering upon the deceased's family, impact on society, age of the criminal, criminal history, and all extenuating circumstances, such as those after the crime, if the court finds the responsibility for the crimes to be full, and finds the maximum sentence is unavoidable from a prevention viewpoint and balanced viewpoint regarding crimes, the court shall have no option but to elect the death penalty.
(Summary) When this is considered in this case, as described above, the burglary and murder in this case was a case wherein an elderly woman was taken away from her home and strangled in the mountains, and her money and goods were stolen. The nature of the crime committed and results are very serious, and the victimization of the deceased's family is serious, and this court cannot ignore the impact this crime had on society. The motive of the defendant to commit this crime was the defendant's Pachinko habit, which led to him borrowing money from loan sharks, having difficulty making repayments, and seeking a solution. There is no area for the court to show sympathy. The method of murder was the defendant gave a blow to the head of the victim with a rock and made her lose consciousness, he then tied a vinyl string to her neck and the two big men each pulled an end of the string at full force and strangled her, and the dead body was thrown from over a cliff and left there to hide traces of the crime, and when these points are also considered, the court must acknowledge that this crime was brutal and cold-blooded. With respect to the relationship of the defendant to defendant B, the defendant played a lead role from the start to the finish in all of the actions and the burglary and murder plan, and the defendant later used the Japanese bank passbook to commit the crime of fraud in this case. Furthermore, after committing the crime of the burglary and murder in this case, the defendant prevented B from his wish to surrender to the police, and continued his lifestyle of Pachinko addiction without holding down a serious job, therefore the extenuating circumstances after the crime were not satisfactory to the court. Furthermore, the defendant was carrying out his sentence of life imprisonment for the crime of burglary and murder, and was released on parole when he again committed burglary and murder, and the court considers this point to be nothing but a very malicious act. In particular, in the prior burglary and murder, the defendant came to have great difficulty with the repayments on loans accumulated from car races, and threatened a housewife who he was friendly with in the neighborhood with a kitchen knife (Japanese Hocho knife) and stole cash, and he then murdered this woman whom he knew and covered his criminal acts and decided to run, and with respect to the point that the defendant took advantage of the relationship and got close to the women he knew to repay the loans from his gambling and committed the crime in a premeditated manner, the court finds significant similarity to his earlier crimes. Therefore, the court must find that the criminal and anti-society nature of the defendant who committed the burglary and murder in this case while out on parole for the prior matter cannot be looked upon lightly.
When the points above are considered in total, the number of victims murdered in this case was one, however, the crime committed by the defendant was a very serious crime, and unless there are particularly extenuating circumstances, the court has no choice but render a decision of the death penalty.
5. With respect to this, the second instance court decision, and the first instance court decision that endorse this decision, the defendant argues that there are the three extenuating circumstances described above.
With respect to the first point that there was little premeditation, it is true that the defendants when they discussed this prior to the crime did not go as far as to make plans in detail regarding when and where to murder the victim, and the defendants decided to commit the murder after visiting the home of the victim, and upon confirming whether there was money or goods to steal, and furthermore, this court finds evidence that the defendants searched the scene of the murder after the defendants took the victim away from her home. However, the defendants had made preparations, for example, they discussed and decided on the basic points prior to the crime that they would strangle the victim using string and steal money and goods, and then purchased vinyl string and work gloves (Japanese Gunte gloves) to use in the crime, and created a stronger knot from this string by bundling the string. After they visited the victim's house, to confirm whether the victim had cash, they entered a separate room feigning illness and peeked in her Japanese bank passbook, and asked if he could borrow money from the victim and survey her finances, and was crafty. Furthermore, after the defendants took the victim away from her house, the defendants continued to search for a long period for a suitable crime scene without revealing the intention to murder, and accomplished the crime. With such circumstances under consideration, it is unreasonable for this court to assess that there was little premeditation in the burglary and murder in this case.
With respect to the second point that the defendant may be reformed and rehabilitated, it is true that the defendant made a complete confession to all of the crimes in this case at a relatively early stage after the arrest, and this point was maintained in the trials of both the first instance court and the second instance court, and the defendant stated that he is prepared for the maximum sentence. Furthermore, the behavior of the defendant in prison in serving the sentence for the crime above was respectable, and the court also finds evidence that the defendant made efforts earlier on to assimilate soundly back into society when he was paroled. However, the defendant started his life after parole in a fortunate environment wherein he received support from family, and soon developed a Pachinko habit and borrowed money many times, and in the end he committed the burglary and murder in this case. In addition, the defendant has taken no action to alleviate the pain and suffering caused upon the family of the victim. Given this fact, this court cannot logically take into consideration, among others, the primary facts that the defendant had confessed and has indicated remorse.
The third point, that is, in comparison with a prior and existing case wherein a person, who committed the crime of burglary and murder while he was released on parole and to whom a sentence of life without parole was given, was given the death penalty, and with respect to the point that there were less major malicious activities conducted by the defendant, as the death penalty was selected in such cases at the trial for all Supreme Court cases wherein the judgment was rendered after July 8, 1983, this court cannot assess that, in these cases, the circumstances of the defendant as described above, even when compared to cases wherein there was only one victim who was murdered, the degree of maliciousness was overall sufficiently low to avoid the election of the death penalty.
6. The second instance court judgment had then endorsed the weight of the sentence in the first instance court judgment that rendered the judgment of life imprisonment upon the defendant, as a result of an erred assessment of the facts that were to be considered to determine the weight of the sentence, however, this court finds that the weight on this sentence is improper, and there will be serious injustice if this judgment is not quashed.
Therefore, the portion on the defendant in the second instance court judgment shall be quashed under Code of Criminal Procedure Article 411(ii), and with the seriousness of this matter under consideration, in order to perform a very careful deliberation on whether there were other extenuating circumstances for the court to consider, the court has decided to remand this case to the original court under the Code of Criminal Procedure Article 413, and all justices unanimously agreed on this opinion, and decided as set forth in the main text of the judgment.

Prosecutor GOTO Masaharu, in attendance at trial
Justice KAWAI Shinichi
Justice FUKUDA Hiroshi
Justice KITAGAWA Hiroharu
Justice KAJITANI Gen
(This translation is provisional and subject to revision.)
(* Translated by Judicial Research Foundation)