Killing and Then Taking Is Not Murder to Obtain Property Under Section 289(7) คำพิพากษาฎีกาที่ 3792/2533: คำรับสารภาพอย่างเดียวลงโทษตามข้อหาที่รับสารภาพไม่ได้

SUPREME COURT DECISION No. 3792/2533
Year: 1990 (B.E. 2533)
Relevant Code Sections: Criminal Code, Sections 288, 289(7), 335(1)(7) paragraph three, 340; Criminal Procedure Code, Sections 176, 185, 192, 213, 225

SUMMARY
The third defendant killed the deceased and then took his property and motorcycle. He confessed in court to murder committed in order to obtain property, Section 289(7), and the Court of Appeal convicted him and the fourth defendant on that basis and sentenced them to death, commuted to life on the mitigation of their confessions. The Supreme Court held the evidence did not establish that offense. What was proved was killing, and then taking, which is intentional homicide under Section 288 as one count and theft under Section 335(1)(7) paragraph three as another. A court cannot convict on a charge the defendant has confessed to when the facts found at trial do not support it. The sentence became life imprisonment plus four years, halved for the confessions to 25 years plus two, so 27 years each.

FACTS OF THE CASE
The public prosecutor of Songkhla charged four defendants with murder to obtain property under Section 289 and with gang robbery under Section 340. The first and second defendants denied the charge and were acquitted. The third defendant confessed. The fourth confessed only after the prosecution had closed its case. The proven facts were that the third defendant killed the deceased and afterwards took the deceased's property and his motorcycle, worth 40,500 baht in what was not recovered.

COURT'S HOLDING
Where the third defendant killed the deceased and only afterwards took his property and the motorcycle, he is guilty of intentional homicide under Section 288 on one count and of theft on another, and he is not guilty of killing in order to obtain property under Section 289(7). Even though he confessed in court to that offense as well, the court cannot punish him on the charge confessed to when the facts established at trial do not show that he committed it. And where the third and fourth defendants acted together, and the offense is under Section 288, which carries a lighter penalty than Section 289(7), the point goes to the nature of the case, so under Section 213 read with Section 225 of the Criminal Procedure Code the court may extend its judgment to the fourth defendant even though he did not petition.

LEGAL ANALYSIS
A confession is evidence, not a shortcut, and this case is the clearest statement of that in the aggravated-murder context. The third defendant admitted killing for the purpose of taking property, which is Section 289(7), but the evidence showed only that he killed and then took the property, which is Section 288 plus a separate theft.

The Court held that where the facts established at trial do not support the offence confessed to, the court cannot convict on the confession. The sequence mattered: killing then taking is not the same offence as killing in order to take.

There is also a procedural point worth keeping. Because the ruling went to the nature of the case rather than to the individual, Sections 213 and 225 of the Criminal Procedure Code let the Court extend the same relief to the fourth defendant, who had not petitioned at all.

The sentence shows what the point was worth. The Court of Appeal had convicted under Section 289(7) with Section 339 final paragraph and imposed death, halved to life for the confessions. On the Supreme Court's finding the convictions became Section 288 and Section 335(1)(7) paragraph three with Section 83: life imprisonment on the first count and four years on the second, each halved under Section 78 with Section 53, so 25 years plus two, 27 years for each of the third and fourth defendants.

PRACTICAL NOTE
Plead to what the facts show, not to what the charge says. A confession does not fill a gap in the prosecution's evidence, and a court that finds the confessed offense unproved must convict on what was proved instead, which here was a lighter section. The sequence is the whole case: killing and then taking is Section 288 and a separate theft, while killing in order to take is Section 289(7) and carried death. And a co-defendant who did not appeal still benefits, because a ruling on the nature of the case extends to him under Sections 213 and 225 of the Criminal Procedure Code.