Acórdão nº 036171 de Supremo Tribunal de Justiça (Portugal), 25 de Março de 1981 (caso NULL)
Data | 25 Março 1981 |
Órgão | http://vlex.com/desc1/1997_01,Supreme Court of Justice (Portugal) |
N Privacidade: 1 Meio Processual: REC PENAL.
Decis„o: NEGADO PROVIMENTO.
¡rea Tem·tica: DIR CRIM - TEORIA GERAL / CRIM C/PATRIMONIO. DIR PROC PENAL.
LegislaÁ„o Nacional: CP886 ART39 N1 N23 ART84 ART123 ART421 N4 PARUNICO ART453. DL 371/77 DE 1977/09/05. CPP29 ART359 N3 ART447 ART448. L 3/81 DE 1981/03/13 ART2 N1 D.
JurisprudÍncia Nacional: AC STJ DE 1966/02/16 IN BMJ N154 PAG172. AC STJ DE 1966/04/20 IN BMJ N156 PAG264. AC STJ DE 1967/04/12 IN BMJ N166 PAG313.
Sum·rio : I - O juiz n„o esta inibido de procurar obter, em audiencia, os elementos necessarios ao conhecimento dos motivos do crime e da personalidade do delinquente e, para uma correcta aplicaÁ„o do artigo 84 do Codigo Penal, tera que faze-lo sempre, independentemente de esses elementos haverem sido ou n„o apontados na acusaÁ„o ou no despacho de pronuncia. II - Todavia, o juiz n„o pode alterar a moldura penal estabelecida na acusaÁ„o, salvo na hipotese prevista no paragrafo 2 do artigo 447 do Codigo de Processo Penal. III - S„o elementos do crime de abuso de confianÁa: a) o recebimento de dinheiro ou outra coisa movel, por titulo que produza para aquele que recebe a obrigaÁ„o de restituir a mesma coisa ou um valor equivalente, ou aplica-la a um uso, trabalho ou emprego determinado; b) o descaminho - desvio ilicito do caminho devido, do fim prescrito - ou a dissipaÁ„o - gasto ilicito daquilo que deve conservar-se - por parte do que recebe; c) o prejuizo ou possibilidade de prejuizo para o proprietario, possuidor ou detentor da coisa entregue; d) o dolo. IV - Ainda que o dolo (elemento subjectivo) n„o conste expressamente da acusaÁ„o ou do despacho de pronuncia, n„o se segue que o tribunal n„o o possa dar como provado. V - O crime de abuso de confianÁa e um crime essencialmente doloso e para que exista dolo...
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