Recurso Em Sentido Estrito N. 0000856-43.2012.4.01.3309/ba

Penal. Processo penal. Descaminho. Crime que deixa vestígios. Corpo de Delito. Exame de corpo de delito. Prova pericial. Ausência de laudo de Exame merceológico. Rejeição da denúncia. 1. Quando a infração deixa vestígios, será indispensável o exame de corpo de delito, direto ou indireto, não podendo supri-lo a confissão do acusado (art. 158 - CPP). Trata-se de prova imposta por lei, onde houver fatos permanentes (delictum facti permanentis), como um resquício do sistema da prova legal ou tarifada. Sua ausência implica nulidade (art. 564, III, “b“ - CPP), ressalvada a hipótese do exame de corpo de delito indireto (art. 167 - CPP), quando, desaparecendo os vestígios, a demonstração puder ser feita excepcionalmente pela prova testemunhal. 2. Corpo de delito é a prova da existência do crime - o conjunto dos elementos tangíveis, físicos e materiais, principais ou acessórios, permanentes ou temporários, que atestam a prática criminosa -, que constitui objeto do exame de corpo de delito, a prova pericial que constata a materialidade do crime, realizada por perito oficial, portador de curso superior ou, na sua falta, por duas pessoas idôneas portadoras de curso superior, preferencialmente na área específica do exame (art. 159, caput e § 1º - CPP). 3. A despeito de precedentes em contrário, nos crimes de contrabando e descaminho, na variante de importação de mercadoria proibida ou com ilusão dos tributos devidos (art. 334 - CP), é indispensável, em nome da inviolabilidade do direito à liberdade, do qual ninguém será privado sem o devido processo legal (arts. 5º, caput e inciso LIV - CF), a demonstração técnica por laudo merceológico que ateste o valor e a origem da mercadoria aprendida, embora, no desaparecimento dos vestígios, a prova possa ser feita por outros meios. 4. Não provimento do recurso em sentido estrito.

Rel. Des. Olindo Herculano De Menezes

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