2002.02.14

2000 (A) 411

Keishu Vol.56,No.2, at 86

Decision upon the case where an assault committed by a thief is determined to have been committed while the opportunity for theft continued to exist.

Case to be brought for intrusion into another person's residence, theft, robbery resulting in bodily injury, and a violation of the Law Controlling Possession etc. of Firearms and Swords

Decision of the Second Petty Bench, dismissed

Sendai High Court, Judgment of February 22, 2000

Given the fact that the thief, after stealing property in another person's residence, concealed himself under the roof and committed an assault upon the police officers, who rushed to the scene about three hours after the theft, in an effort to avoid being arrested, the assault should be considered to have been committed while the opportunity for theft continued to exist.

Article 238 and 240 of the Penal Code

Article 238 of the Penal Code
If a thief commits an assault or act of intimidation in order to keep the stolen property from being taken back, avoid being arrested, or hide or destroy evidence, he shall be treated as a robber.

Article 240 of said law
A robber shall be punished with imprisonment with labor for life or of not less than seven years if he injures another person or with the death penalty or imprisonment with labor for life if he kills another person.

The present jokoku appeal shall be dismissed.

The statement of grounds for jokoku appeal made by TATEDA Hironari, defense counsel, is no more than an assertion of errors in fact and the inappropriateness of sentencing and the statement of grounds for jokoku appeal made by the defendant himself is no more than an assertion of errors in fact, none of which constitutes any of the legal grounds for jokoku appeal.
According to the findings stated in the judgment of the original instance court, the defendant, after stealing rings in the victim's house, concealed himself under the roof directly above the crime scene. About one hour after the crime, the victim came home to discover the theft and noticed the thief still hiding under the roof. When police officers, at the call of the victim, rushed to the crime scene about three hours later and found him, he injured the police officers by cutting them in the face with the knife that he carried in an effort to avoid being arrested. [Summary] Given these facts, the defendant stayed very near to the crime scene after stealing and there remained the possibility that he might be easily detected, have the stolen property taken back, or be arrested by the victim, so said assault should be considered to have been committed while the opportunity for theft continued to exist. Therefore, the judgment of the original instance court that the defendant shall be charged with robbery resulting in bodily injury is reasonable.
Therefore, pursuant to Articles 414 and 386(1)(iii) and the proviso of Article 181(1) of the Code of Criminal Procedure, the decision was rendered in the form of the main text by the unanimous consent of the Justices.

Justice KAWAI Shinichi
Justice FUKUDA Hiroshi
Justice KITAGAWA Koji
Justice KAMEYAMA Tsuguo
Justice KAJITANI Gen