Recurso Especial Nº 1.392.386 – Rs

Penal e processo penal. Recurso especial. 1. Contrariedade ao art. 159, Caput e § 1º, do cpp. Ausência de prequestionamento. Súmulas 282/stf e 356/stf. 2. Negativa de vigência ao art. 155, § 4º, ii, do cp. Não ocorrência. Furto qualificado. Escalada. Ausência de perícia. Existência de fotos E testemunhos. Dinâmica delitiva filmada. Materialidade Comprovada. 3. Recurso especial improvido. 1. A ausência de apreciação pelo Tribunal local do conteúdo normativo do artigo tido por violado impede o exame da matéria por esta Corte Superior, pois, além de não se ter explicitado previamente a tese jurídica controvertida, não houve o preenchimento do requisito constitucional do prequestionamento. Inteligência dos enunciados nos 282 e 356, ambos da Súmula do Supremo Tribunal Federal. 2. Estando devidamente demonstrada a existência de provas referentes à utilização da escalada para realizar o furto, por meio de filmagem, fotos e testemunhos, ainda que não tenha sido realizado exame de corpo de delito - o qual pode ser suprido pela prova testemunhal, nos termos do que disciplina o art. 167 do Código de Processo Penal -, não há se falar em violação ao art. 155, § 4º, inciso II, do Código Penal, encontrando-se, dessarte, legalmente comprovada a materialidade. Não pode o processo penal andar em descompasso com a realidade, desconsiderando-se elementos de prova mais modernos e reiteradamente usados. Com efeito, atualmente existem inúmeros recursos aptos a registrar imagens, as quais, na maioria das vezes, podem revelar de forma fiel a dinâmica delitiva e as circunstâncias do crime praticado. 3. Recurso especial a que se nega provimento.

Rel. Min. Marco Aurélio Bellizze

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