2005.11.08

2003 (A) 163

Keishu Vol. 59, No. 9

Decision ruing that where the defendant, who retained a knife in the dashboard of his car in preparation for a possible fight with a man who had been severely antagonizing the defendant, took the knife out of the dashboard into his trouser pocked in self-defense and then crawled out of the car when the man driving a car intentionally crashed into the defendant's car and made it overturned, the defendant's act of carrying the knife on the road cannot be deemed to be justifiable

Case to be brought for violation of the Law to Control the Possession of Firearms and Swords

Decision of the Third Petty Bench, dismissed

Osaka High Court, Judgment of December 3, 2002

Where the defendant, who retained a knife in the dashboard of his car in preparation for a possible fight with the man who had been severely antagonizing the defendant, took the knife out of his car, there is no room to deem the defendant's act of carrying the knife on the road to be justifiable, even though consideration is given to the fact that the defendant took the knife out of the dashboard, put it into his trouser pocket for the purpose of self-defense and then crawled out of the car when the man driving a car intentionally crashed into the defendant's car and caused it to overturn.

Article 35 and Article 36, Paragraph 1 of the Penal Code, Article 22 and Article 32, Subparagraph 4 of the Law to Control the Possession of Firearms and Swords

Article 35 of the Penal Code
(Justifiable acts)
An act committed in accordance with laws or ordinances or in the pursuit of lawful business shall not be punished.

Article 36(1) of the Penal Code
(Self-defense)
An act unavoidably committed to protect the rights of oneself or any other person against imminent and unjust infringement shall not be punished.

Article 22 of Law to Control the Possession of Firearms and Swords
(Prohibition of carrying of a knife with a blade of six centimeters or more in length)
No person shall, except for the purpose of performing duties or other justifiable reasons, carry a knife that has a blade of six centimeters or more in length measured by the method as provided by Cabinet Office Ordinance. However, this shall not apply to a pair of scissors, clasp knife or other kind of knife that has a blade or blades of eight centimeters or less in length measured by the method as provided and is in a type or shape as provided by Cabinet Order.

Article 32 of the Law to Control the Possession of Firearms and Swords
A person who falls under any of the following shall be sentenced to imprisonment with labor for not more than one year or a fine of not more than 300,000 yen.
(iv) A person who violates the provision of Article 22.

The jokoku appeal shall be dismissed.

Among the grounds for the jokoku appeal argued by the attorney TANI Naoki, the one alleging the unconstitutionality of Article 22 and Article 32, Subparagraph 4 of the Law to Control the Possession of Firearms and Swords was not argued or examined at all at the court of the second instance, the one alleging violation of a judicial precedent is irrelevant in this case because the cited judicial precedent addresses a different type of facts, and the rest, including the one alleging violation of the Constitution, are in effect nothing more than claims of violation of law or errors in fact-finding, and none of these arguments can be accepted as a ground for jokoku appeal under Article 405 of the Code of Criminal Procedure.
After considering the argument, however, we decide to make judgment ex officio regarding whether or not the defendant's act of carrying the knife can be deemed to be justifiable as self-defense.
According to the fact-finding and records of the judgment of the second instance, the defendant, in preparation for a possible fight with a man who had been severely antagonizing the defendant, retained the knife, which was made by processing a scissor blade of about 11 centimeters in length, in the dashboard of his car while driving. When the man driving a FWD intentionally crashed into the defendant's car and made it overturned, the defendant took the knife out of the dashboard, put it into his trouser pocket for the purpose of self-defense and crawled out of the car, and then started to quarrel with the man holding a golf club in his hand. They were pulled away from each other by the police officer and passer-by at the scene, and the passer-by took the knife out of the defendant's trouser pocket and passed it to the police officer. Under such circumstances, the defendant was arrested flagrante delicto by the police officer for illegal carrying of the knife. The public prosecutor charged the defendant with carrying the knife at the time when the police officer recognized it.
According to the facts mentioned above, the defendant's act of retaining the knife in the dashboard of his car should be deemed to be illegal carrying of a knife, and despite the fact that the defendant subsequently took it out of the dashboard and put it into his trouser pocket for the purpose of self-defense, his act of carrying the knife in his trouser pocket on the road should be deemed to be part of illegal carrying of a knife. Consequently, it should be construed that there is no room to deem the defendant's act of carrying the knife at the time as charged to be justifiable, and the judgment of the second instance is justifiable as conclusion.

Therefore, according to Article 414, Article 386, Paragraph 1, Subparagraph 3, and the proviso of Article 181, Paragraph 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 HAMADA Kunio
Justice UEDA Toyozo
Justice FUJITA Tokiyasu
Justice HORIGOME Yukio