2021.06.28

2020 (A) 919

Keishu Vol. 75, No. 7

Decision concerning the scope of the effect of prohibition of double jeopardy based on a judgment of conviction for the counts of breaking into a residence and theft in first instance of the previous action that became final and binding, when the acts that constitute the count in the subsequent action, the crime of habitually committing a particular type of theft, were committed after the rendering of said judgment in first instance of the previous action

Case charged for habitually committing a particular type of theft

Decision of the First Petty Bench, dismissed

Fukuoka High Court, Judgment of June 19, 2020

In the case where a judgment of conviction for the counts of breaking into a residence and theft in first instance became final and binding in the previous action, if the acts of breaking into a residence and theft that constitute the count in the subsequent action, the crime of habitually committing a particular type of theft, were committed after the rendering of said judgment in first instance of the previous action, prohibition of double jeopardy based on the final and binding judgment in the previous action is not effective against the subsequent action without the need to examine whether or not the acts constituting the counts in the previous action were committed as the display of the habitual nature of the acts.

Article 337, item (i) of the Code of Criminal Procedure, Article 235 of the Penal Code, and Article 2 of the Act on Prevention and Punishment of Robbery and Theft

Code of Criminal Procedure
Article 337　The court must bar further prosecution through a judgment if:
(i)　a final and binding judgment has been reached in a case;

Penal Code
(Theft)
Article 235　A person who steals the property of another person commits the crime of theft and is punished by imprisonment for not more than 10 years or a fine of not more than 500,000 yen.

Act on Prevention and Punishment of Robbery and Theft
Article 2 A person who habitually committed the crime referred to in Article 235, 236, 238 or 239 of the Penal Code or the attempt thereof by the methods referred to in the following items is punished by imprisonment with work for a definite term for not less than three years if the person is to be dealt with in the same manner as with theft, and by imprisonment with work for a definite term for not less than seven years if the person is to be dealt with in the same manner as with robbery:
(i) where the person committed the crime with weapons;
(ii) where the person committed the crime in joint action with one or more other persons at the site;
(iii) where the person committed the crime by climbing over or damaging a door, wall, etc. or opening a lock and thereby breaking into a residence of another person or into the premises, building or vessel guarded by another person; or
(iv) where the person committed the crime by breaking into a residence of another person or into the premises, building or vessel guarded by another person at night.

The final appeal is dismissed.

The reasons for final appeal stated by the defense counsel, KANAOKA Sayaka, including the argument of violation of the Constitution, are substantially arguments of a mere violation of laws and regulations, an erroneous finding of facts, and inappropriateness of sentencing, and the reasons for final appeal stated by the accused, including the argument of violation of the Constitution, are substantially arguments of a mere violation of laws and regulations and an erroneous finding of facts. None of them constitutes any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

Incidentally, the accused received the pronouncement of a judgment of conviction for breaking into a residence of another person and theft in first instance of the previous action, and the appeal and final appeal were dismissed and the same judgment became final and binding. However, all the acts of breaking into a residence of another person and theft that constitute the crime of habitually committing a particular type of theft of this case: for which prosecution was instituted thereafter, are found to have been committed after the rendering of the judgment in first instance of the previous action before the same judgment became final and binding. In the case where a judgment of conviction for the counts of breaking into a residence of another person and theft in first instance became final and binding in the previous action, as in this case, if the acts of breaking into a residence of another person and theft that constitute the count in the subsequent action, the crime of habitually committing a particular type of theft, were committed after the rendering of the judgment in first instance of the previous action, prohibition of double jeopardy based on the final and binding judgment in the previous action is not effective against the subsequent action without the need to examine whether or not the acts constituting the counts in the previous action were committed as the display of the habitual nature of the acts. Therefore, the conclusion of the judgment in prior instance to the effect that the judgment in first instance that did not bar further prosecution through a judgment in relation to this case pursuant to Article 337, item (i) of the same Code contains no error is legitimate and can be accepted.

Accordingly, in accordance with Article 414, Article 386, paragraph (1), item (iii), and the proviso to Article 181, paragraph (1) of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the decision.

Justice KIZAWA Katsuyuki

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya