Apelação Criminal Nº 0004215-19.2003.4.03.6103/sp

Processual penal e penal - inépcia da denúncia e nulidade da sentença - não ocorrência - estelionato - seguro desemprego - dolo - não comprovação - atipicidade da conduta - absolvição - art. 386, iii, do cpc. Provimento do recurso. 1. Afastada a alegação de inépcia da denúncia, que especificou o período em que o apelante teria recebido o seguro-desemprego de forma irregular, e de nulidade da sentença condenatória a qual não se mostra discrepante da acusação em nenhum aspecto, nem mesmo no que concerne à data dos fatos apurados no âmbito do presente feito. 2. Não se olvida que a percepção do seguro-desemprego, ao mesmo tempo em que o agente exercia atividade remunerada, sem carteira assinada, configura o delito de estelionato, na forma do art. 171, § 3º, do CP. O dolo é evidenciado na conduta do agente que, valendo-se da situação de irregularidade formal do vínculo trabalhista, faz incorrer em erro o Ministério do Trabalho e Emprego, obtendo vantagem ilícita em prejuízo do erário. 3. Tal não se dá nos presentes autos, onde ficou demonstrado que o agente sequer possuía condição para se supor empregado - ainda que informal - da empresa referida na denúncia, encontrando-se em situação empregatícia precária, sendo posteriormente reconhecida a relação de emprego por sentença trabalhista. 4. Provimento do recurso para absolver o réu, por ausência de demonstração do dolo.

Rel. Des. Luiz Stefanini

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