Apelação Criminal Nº 0001962-58.2008.4.03.6111/sp

Penal. Processual penal. nulidade em razão da não manifestação dos acusados sobre a proposta de suspensão condicional do processo. Afastada. Fraude processual - art. 347 do código penal. Empreender fuga. Conduta atípica. Emendatio libelli. Favorecimento pessoal, art. 348 do código penal. Esposa. Escusa absolutória. Empregados. Inexigibilidade de conduta diversa. Absolvição mantida. I - Não há que se falar em nulidade da sentença, em razão da ausência de manifestação pelos acusados quanto à proposta de suspensão condicional do processo, ofertada pelo Ministério Público Federal. Os denunciados apresentaram as respostas, postulando a absolvição e deixaram de se manifestar, expressamente, a respeito da suspensão condicional do processo, pois não pretendiam a suspensão do processo, mas sim a absolvição! O que se deu, inclusive, no caso dos autos, não havendo qualquer prejuízo para os denunciados. II - No tocante ao denunciado Roberto Borguette de Melo, não poderia este cometer o delito de fraude processual, pois o ato de evadir-se não se confunde com o de inovar artificiosamente estado de lugar, coisa ou pessoa, com a vontade específica e consciente dirigida à inovação artificiosa, com o fim de induzir em erro juiz ou perito. Ademais, fuga sem violência, só ganha relevância no âmbito da execução penal, mesmo assim, a Lei n.º 7.210/84 somente a trata como falta disciplinar (art. 50, inciso II, da LEP). Conduta atípica. III - As condutas praticadas por Deine, Eguialdo Botin e Dulce Helena da Silva subsumem-se no art. 348 do Código Penal. A hipótese é, assim, de emendatio libelli, nos termos do art. 383 do Código de Processo Penal, ou seja, sem modificar a descrição dos fatos narrados na denúncia, o juiz lhe atribui definição jurídica diversa, ainda que, em consequência, tenha de aplicar pena mais grave, o que não é o caso. IV - No caso específico da esposa do foragido, Deine, sua conduta está isenta de pena, nos termos do art. 348, § 2º (“Se quem presta o auxílio é ascendente, descendente, cônjuge ou irmão do criminoso, fica isento de pena“). V - Quanto aos empregados da casa, Eguialdo Botin e Dulce Helena da Silva, há causa supralegal de exclusão da culpabilidade, consistente na inexigibilidade de conduta diversa, pois estavam apenas cumprindo ordens dos patrões quando deixaram de abrir a porta da residência para os policiais. VI - Preliminar rejeitada. Recurso desprovido. Sentença absolutória mantida.

Rel. Des. José Lunardelli

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