Beating Without Intent to Kill Is Killing Without Intention Under Section 290 คำพิพากษาฎีกาที่ 1950/2527: ฟ้องตามมาตรา 288 ศาลลงโทษฐานฆ่าโดยไม่เจตนาตามมาตรา 290 ได้ และโจทก์ต้องห้ามฎีกาในข้อเท็จจริงตามมาตรา 220

SUPREME COURT DECISION No. 1950/2527
Year: 1984 (B.E. 2527)
Relevant Code Sections: Criminal, Section(s) 288, 290

SUMMARY
The prosecutor charged intentional murder under Section 288. The Court of First Instance dismissed for insufficient evidence. The Court of Appeal held there was no intent to kill but that the defendant had beaten the deceased to death, and convicted under Section 290. The Supreme Court held that the prosecutor's further petition raised only questions of fact and was barred by Criminal Procedure Code Section 220.

FACTS OF THE CASE
The prosecutor charged the defendant with intentional murder under Section 288, alleging that he had assaulted the deceased and strangled him with a rope. The evidence at trial was that the defendant had punched and kicked the deceased, who later died.

COURT'S HOLDING
The Court of First Instance found the prosecution evidence doubtful and dismissed the murder charge. The Court of Appeal found that the defendant had not intended to kill but had punched and kicked the deceased with such violence that death resulted, and convicted him under Section 290. Both lower courts had therefore rejected the charge under Section 288 on the facts. The prosecutor's contention that the defendant had assaulted the deceased and strangled him with a rope intending to kill was accordingly an appeal on a question of fact, barred by Section 220 of the Criminal Procedure Code, and the Supreme Court could not entertain it.

LEGAL ANALYSIS
The distinction between an intent to injure and an intent to kill is what separates Section 290 from Section 288, and this case is often cited for it. The citation is loose, because the distinction here was drawn by the Court of Appeal on the evidence and the Supreme Court never reviewed it.

What the Supreme Court decided is procedural and is the reason the case is worth reading. Where the Court of First Instance and the Court of Appeal have both rejected the greater charge on the facts, a prosecutor who wants the greater charge reinstated is asking the Supreme Court to find facts, and Section 220 does not permit it. The prosecutor's argument that a rope had been used to strangle the deceased was exactly that kind of argument.

So the case is authority on the limits of Section 220. Anyone relying on it for the substantive boundary between intent to harm and intent to kill is relying on a finding of the Court of Appeal that was never tested above.

PRACTICAL IMPLICATIONS
A charge of intentional murder can end in a conviction for killing without intention. Section 290 carries a lighter penalty than the Section 288 charge that was brought and is contained within it, so the court could convict on it once the facts showed a beating inflicted without an intention to kill. The prosecutor's attempt to restore the murder charge then failed on the same procedural point that recurs in this class of case: Section 220 of the Criminal Procedure Code bars an appeal on the facts once both courts below have rejected the charge on them.

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Note: This is an English-language summary of the Thai original judgment.
For the authoritative Thai text, please refer to the Thai version above
or visit deka.supremecourt.or.th.