Apelação Criminal Nº 42908720064013814/mg

Penal e processual penal - crimes de roubo e de formação de quadrilha - arts. 157, § 2º, i e ii, e 288 c/c arts. 29 e 69 do código penal - extinção da punibilidade, pelo crime capitulado no art. 288 do código penal, em face da consumação da prescrição da pretensão punitiva, pela pena em concreto - autoria e materialidade delitiva comprovada, em relação ao crime de roubo - prova indiciária - admissibilidade - art. 239 do cpp - pena privativa de liberdade - circunstância atenuante genérica - fixação abaixo do mínimo legal - inadmissibilidade - repercussão geral reconhecida pelo supremo tribunal federal. I - Condenação do réu nas reprimendas dos arts. 157, § 2º, I e II, e 288 c/c arts. 29 e 69, todos do Código Penal, por ter participado, em quadrilha ou bando, sob o comando de Gilson dos Santos Monteiro e apresentando-se como motorista particular deste, do roubo da importância de R$ 17.352,73, em dinheiro e cheques, da Agência Matriz dos Correios, na cidade de Timóteo/MG, ocorrido por volta das 19h do dia 18/05/98. II - Extinção da punibilidade, pelo crime capitulado no art. 288 do Código Penal, em face da consumação da prescrição da pretensão punitiva, pela pena em concreto, com fulcro nos arts.110, §§ 1º e 2º, (na ) e 109, V, do Código Penal, uma vez que, entre a data em que o crime se consumou (18/05/98) e a do recebimento da denúncia (25/05/2006), transcorreram mais de 4 (quatro) anos. III - Autoria e materialidade delitivas comprovadas, em relação ao crime de roubo. IV - Nosso sistema processual (art. 239 do CPP) chancela a decisão condenatória que utiliza prova indiciária, desde que esta se mostre conclusiva, exclua qualquer hipótese favorável ao acusado e se coadune com a prova colhida nos autos, consoante ocorre, no caso vertente. Em outras palavras, para haver indício, é necessário que - como explica a jurisprudência sobre a temática - a circunstância conhecida e provada seja apta a que se possa concluir, razoavelmente, pela existência da circunstância desconhecida, que, in casu, é a participação do apelante no referido assalto praticado na agência postal de Timóteo/MG. V - “... Circunstância atenuante genérica não pode conduzir à redução da pena abaixo do mínimo legal“ (repercussão geral por quest. Ord. Em recurso extraordinário nº 597.270/RS, Relator Ministro Cezar Peluso, Pleno do STF, unânime, DJe-104, de 05/06/2009) VI - Apelação improvida.

Rel. Des. Assusete Magalhães

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