A incidência da majorante pelo uso de arma no crime de roubo

Abstract

The robbery is a complex crime, which consists in a violation to the legal interests of patrimony, physical integrity and the individual liberty of the victim. It is part of the special cause crimes the penalty increasing and the qualifiers. In this monographic study, were debated the aspects that involves the item I, of the § 2nd, 157 article of the Penal Code: The upper bound of the robbery crime by the gun using. It was analyzed in this present work the kind of weapons, the form of how the upper bound focuses on the penalty caput and questions about the need of the apprehension and the weapon expertise, to be verified its detrimental potential. It was discussed, however, that despite all the penal, procedural and constitutional principles, like the legality, the not selfincrimination, and the in dubio pro reo, the brazilian’s judiciary, through the institution of a criminal politics fallacy against the weapon’s use on the upper bound robbery crime, requires that the guilt gives the weapon that was used on the robbery so it could be ascertained this effectiveness. Ultimately, it was defended in this present study the unconstitutionality of this vision, once the Courts admit the accused has his penalty increased because of the uppon bound, without, at least, it was made a forensic examination on the weapon, basing the condemnation increased, often, on the victim’s words or the witness.