2022.02.14

2020 (A) 1087

Keishu Vol. 76, No. 2

Decision concerning the case in which the court found the commencement of the crime of theft by switching an envelope containing a cash card with a fake envelope

Case charged for theft and attempt to commit theft

Decision of the Third Petty Bench, dismissed

Sendai High Court, Judgment of July 14, 2020

Based on a crime plan wherein an unknown person would call a victim and have the victim believe that it is necessary to store a cash card in an envelope and that a person who visits him/her will conduct necessary procedures, and the accused would visit the victim's home and steal the victim's cash card by switching an envelope containing the cash card with a fake envelope while the victim is going to get a seal to affix an impression on the sealing part of the envelope based on the instruction of the accused, the unknown person told such lies that would serve as prerequisites for having the victim give the accused a chance to switch the envelopes, which would directly cause the accused to visit the victim's house and give a false instruction, etc., and that would create a situation that would cause the victim to give the accused a chance for the switching without doubt about the instruction, etc. of the accused, and afterwards, the accused went to a street near the victim's home. Based the aforementioned facts of this case (see the text of the decision), it is found that the crime of theft had already been commenced at the time the unknown person told the lies and the accused went to a street near the victim's home even if the accused had not committed an act to distract the victim's attention from the envelope containing the cash card.

Articles 43, 243, and 235 of the Penal Code

Penal Code

(Reduction or Exculpation of Punishments for Attempts)
Article 43 The punishment of a person who commences a crime without completing it may be reduced; provided, however, that voluntary abandonment of commission of the crime, leads to the punishment being reduced or the offender being exculpated.

(Attempts)
Article 243 Any attempt to commit the crimes prescribed under Articles 235 through 236, and 238 through 240, and paragraph (3) of Article 241 is punished.

(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.

The final appeal is dismissed.

Out of the number of days of pre-sentencing detention for this instance, 450 days are included in the calculation of the sentence.

Out of the reasons for final appeal stated by the defense counsel, TANAKA Yoshimi, the argument of violation of a judicial precedent cites judicial precedents that are irrelevant in this case because they addressed a different type of facts, and other arguments are arguments of a mere violation of laws and regulations and inappropriateness of sentencing. The reason for final appeal stated by the accused is an argument of inappropriateness of sentencing. None of the reasons for final appeal constitutes any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

In consideration of the arguments of the defense counsel and the accused, the Court determines, by its authority, whether the crime of an attempt to commit theft is established.

1. The summary of the facts of the crime of an attempt to commit theft in No. 15 in the holding in the judgment in first instance that is upheld by the court of prior instance is as follows.

In conspiracy with unknown persons, the accused intended to steal a cash card by pretending to be an official of the Financial Services Agency. On June 8, 2019, an unknown person pretending to be a police officer called a victim's home in a-cho, Nishimurayama-gun, Yamagata Prefecture and told the victim (79 years of age at that time) lies to the following effect: the victim was suffering damage from fraud that caused the withdrawal of money from the victim's account, and that it was necessary to store the victim's cash card in an envelope that an official of the Financial Services Agency would bring in order to prevent repeated damage. Furthermore, around 4:18 p.m. on June 8, 2019, the accused, pretending to be an official of the Financial Services Agency, went to a street near the victim's home attempting to have the victim put the aforementioned cash card in an envelope and steal the cash card by switching the envelope with another envelope while the victim was looking away from the envelope. However, the accused noticed a police officer following him/her and abandoned the crime, and could not achieve the intended purpose.

2. The defense counsel and the accused argue as follows: the accused's act of telling a lie that it was necessary to affix a seal on an envelope containing the subject matter of theft, a cash card, and leading the victim to go to get the seal, that is, the act of having the victim look away from the cash card, constitutes an act posing an actual and specific risk of infringing the victim's virtual control of the cash card; therefore, the crime of an attempt to commit theft is not established before the accused commits such act.

3. According to the case records, the facts of this case are as follows.

(1) Shortly after 2:00 p.m. on June 8, 2019, an unknown person pretending to be a police officer called the victim's home and told the victim as follows: "You may be suffering damage from fraud"; "We will return the amount of damage "; "For that purpose, your cash card is necessary"; "An official of the Financial Services Agency is heading to your home"; "We will freeze your account to prevent further damage"; "The official of the Financial Services Agency will bring an envelope, so please put your cash card in that envelope"; "The official of the Financial Services Agency will confirm your cash card on the scene"; "After confirming your cash card on the scene, the official will immediately return the cash card, so please store it at home for three days"; "Please do not use the cash card in the envelope for three days"; "You cannot withdraw money from your account for three days" (hereinafter these words are referred to as the "Lies").

(2) Around 4:10 p.m. on June 8, 2019, the accused, who was waiting in a mass-merchandise store in a-cho, Nishimurayama-gun, Yamagata Prefecture, based on the instruction of a person who was in charge of giving instructions, headed to the victim's home in the same town on foot at a signal given by the same person. However, around 4:18 p.m. on June 8, 2019, the accused noticed a police officer following him/her when he/she arrived at a street about 140 m away from the victim's home and sought instructions from the same person and then abandoned the crime.

(2) Unknown persons planned as follows (hereinafter this plan is referred to as the "Crime Plan"): a person pretending to be a police officer will call the victim and tell lies to have the victim believe that it is necessary to store the victim's cash card in an envelope, and an official of the Financial Services Agency who will visit the victim's home will pretend to conduct necessary procedures; then, the accused pretending to be an official of the Financial Services Agency will prepare an envelope containing a loyalty card that is used for switching (hereinafter referred to as the "false envelope") and visit the victim's home, put the cash card that the victim prepared based on the instruction of the unknown person in an empty envelope and seal the envelope, tell the victim that he/she needs to affix an impression on the sealing part of the envelope and have the victim go inside his/her home to get a seal, switch the envelope containing the cash card with the false envelope while the victim is away, and take away and steal the envelope containing the cash card. The unknown person pretending to be a police officer told the Lies to the victim based on the Crime Plan, and the accused went to a street near the victim's home also based on the same plan.

4. According to the Crime Plan, in order to steal a cash card by switching an envelope containing the cash card with the false envelope, it was necessary to create a chance for the switching by having the victim believe and follow false explanations and instructions of the accused who visits the victim's home while pretending to be an official of the Financial Services Agency and having the victim go to get a seal to affix an impression on the sealing part of the envelope containing the cash card. The Lies were prerequisites therefor. Then, the Lies included those that would directly lead to the accused's visiting the victim's home and giving false explanations and instructions and also produce a situation that would cause the victim to give the accused a chance for the switching without doubt about the accused's explanations and instructions, such as a lie about the need to follow the explanations and instructions relating to the cash card given by the official of the Financial Services Agency and a lie that gives an advance notice of a prompt visit to the victim's home by an official of the Financial Services Agency. As of the time when the Lies as mentioned above were told and the accused who would pretend to be an official of the Financial Services Agency and steal the cash card by means of the switching went to a street near the victim's home, a risk was clearly found that the accused who was about to visit the victim's home in a short time would come to infringe the victim's possession of the cash card by distracting the victim's attention from the envelope containing the cash card by having the victim follow the accused's explanations and instructions and by using this chance to switch the envelope containing the cash card with the false envelope.

Based on the facts as mentioned above, even if the accused did not commit any act to distract the victim's attention from the envelope containing the cash card by having the victim go to get a seal, it is found that the crime of theft had already been commenced as of the time when the Lies were told and the accused went to a street near the victim's home. Therefore, the determination of the court of prior instance that upheld the judgment in first instance that found the establishment of the crime of an attempt to commit theft in relation to the accused is justifiable.

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 and Article 21 of the Penal Code, the Court unanimously decides as set forth in the main text of the decision.

Justice TOKURA Saburo

Justice UGA Katsuya

Justice HAYASHI Michiharu

Justice NAGAMINE Yasumasa

Justice WATANABE Eriko