2025.10.20

2024(A)1506

Keishu Vol. 79, No. 7

(Criminal Case) Decision concerning the case in which it was ruled that it is not illegal for the court to have not gone through the procedure to alter the counts when, in the case of embezzlement in the pursuit of social activities committed through the acts which as a whole constitute a single crime, the amount embezzled each month was specified in the counts, but the court found larger amounts than the amounts specified in the counts regarding the amounts embezzled in some of the months concerned

Case charged to the court for embezzlement in the pursuit of social activities

Decision of the Third Petty Bench, dismissed

Sendai High Court, Judgment of October 31, 2024

In the case of embezzlement in the pursuit of social activities committed through the acts conducted continuously over a long period of time which as a whole constitute a single crime, under the circumstances where the amount embezzled each month was specified in the counts, but the court of first instance, while finding a smaller amount than the amount specified in the counts regarding the total amount embezzled, found that embezzlement was committed at a point in time later than the point in time specified in the count for some of the acts concerned, and therefore found larger amounts than the amounts specified in the counts regarding the amounts embezzled in some of the months concerned, it cannot be said to be illegal for the court of first instance to have not gone through the procedure to alter the counts.

Article 253 of the Penal Code (prior to the amendment by Act No. 67 of 2022); Article 312, paragraphs (1) and (2) of the Code of Criminal Procedure

The final appeal is dismissed. Out of the number of days of pre-sentencing detention for this instance, 230 days are included in the calculation of the sentence.

Among the reasons for final appeal stated by the defense counsel, MORITA Shinji, TAKADA Hidenori, and OIKAWA Atsushi, the argument of violation of a judicial precedent is irrelevant in this case because it addressed a different type of facts, and the rest are arguments of a mere violation of laws and regulations and errors in the finding of facts, and none of these reasons constitutes any of the reasons for final appeal as referred to in Article 405 of the Code of Criminal Procedure. In consideration of the arguments, the Court makes a determination by its own authority regarding the necessity to alter the counts in this case. 1. The charged facts and developments of this case The outline of the charged facts of this case is as follows: the accused, as a person in charge of accounting of a bar association, engaged in the management of fees for inquiries from attorneys, expenses charged on attorneys, and similar amounts, and the tasks such as making deposits into and withdrawals from the bank account held in the name of that bar association; the accused, on behalf of the bar association, had in their custody the cash received during the period between January 2018 and May 2021 as fees for inquiries from attorneys and expenses charged on attorneys, which amounted to about 85,443,156 yen in total, and during the period between around February 2018 and around June 2021, the accused pocketed cash of about 50,667,838 yen in total on 35 occasions and thereby embezzled this amount of cash. In the counts regarding these charged facts, the amount of cash received and the amount embezzled each month were specified. In the proceedings in the first instance, the public prosecutor made an allegation and produced evidence to the effect that the amounts of unaccounted-for expenditure calculated by subtracting the amounts deposited into the bank account held in the name of the bar association by the prescribed points in time from the amounts of cash the accused received each month for each item (fees for inquiries from attorneys or expenses charged on attorneys) are the amounts embezzled by the accused at the respective points in time, without specifying the accused's individual acts of unlawfully taking money. The defense counsel in the first instance disputed this allegation. The court of first instance found the facts constituting the crime as follows: the accused, who engaged in the tasks mentioned above on behalf of the bar association, had in their custody the cash received during the period between around January 2018 and around May 2021 as fees for inquiries from attorneys and expenses charged on attorneys, which amounted to about 60,953,765 yen in total, and during the period between around February 2018 and around June 2021, the accused pocketed cash of about 34,683,408 yen in total on multiple occasions and thereby embezzled this amount of cash. The court held that these facts as a whole constitute a single crime. The court found the facts that differ from the counts because it found smaller amounts than the amounts specified in the counts regarding all of the amounts of cash the accused received each month for each item, and subtracted a greater range of deposits into the bank account held in the name of the bar association than that specified in the allegation and evidence by the public prosecutor. However, for reason such as the difference in the method of calculation for deducting any amount of excess from the amount embezzled in some of the months when an amount exceeding the amount of cash received was deposited in that bank account, the court of first instance found that embezzlement was committed at a point in time later than the point in time specified in the count for some of the acts concerned, and as a result, it found larger amounts than the amounts specified in the counts regarding the amounts embezzled in some of the months concerned, but this was done without going through the procedure to alter the counts. 2. Decision of this Court The facts constituting the crime as described above involve the acts that the accused conducted over a very long period of time, but that were based on the same criminal intent against the same victim continuously by taking advantage of their possession of the relevant property in the course of performing the same tasks, and these acts as a whole are deemed to constitute a single crime. Therefore, even if the court finds larger amounts than the amounts specified in the counts regarding the amounts embezzled in some of the months concerned, from the perspective of defining the subject of the trial, it cannot be said that such difference necessitates the alteration of the counts, unless the total amount found by the court exceeds the total amount specified in the counts. In addition, in general, the amount embezzled each month in this type of case may be important for the accused in defending themself, but the court of first instance found larger amounts than the amounts specified in the counts regarding the amounts embezzled in some of the months concerned just because it found that embezzlement was committed at a point in time later than the point in time specified in the count for some of the acts concerned, and hence, such finding of facts cannot be deemed to constitute an unfair surprise to the accused. Furthermore, it is clear that the finding by the court of first instance of a smaller amount than the amount specified in the counts regarding the total amount embezzled is not more disadvantageous to the accused as compared to the counts. According to the above, in the case of embezzlement in the pursuit of social activities committed through the acts conducted continuously over a long period of time which as a whole constitute a single crime, under the circumstances where the amount embezzled each month was specified in the counts, but the court of first instance, while finding a smaller amount than the amount specified in the counts regarding the total amount embezzled, found that embezzlement was committed at a point in time later than the point in time specified in the count for some of the acts concerned, and therefore found larger amounts than the amounts specified in the counts regarding the amounts embezzled in some of the months concerned, it cannot be said to be illegal for the court of first instance to have not gone through the procedure to alter the counts. Consequently, the determination by the court of prior instance is justified for holding that there is no violation of procedural laws and regulations in the process through which the court of first instance made the finding mentioned above without going through the procedure to alter the counts. Accordingly, in accordance with Article 414 and Article 386, paragraph (1), item (iii) 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 HIRAKI Masahiro Justice HAYASHI Michiharu Justice WATANABE Eriko Justice ISHIKANE Kimihiro Justice OKINO Masami