Last week, it was very rare to make three consecutive assault judgments. I didn't expect to be so lucky after one week's alternation. I pronounced the judgment in court, sentenced to three years' suspension of execution, released on bail and then released.
before the trial, we predicted that the result was very bad. The sentencing opinion of the prosecution as armed affray was three to four years. Our only defense view is that it does not constitute affray, but it should be considered as intentional injury. However, the victim was slightly injured in seven places, and one place can be sentenced to three to six months, and the starting point of sentencing is less than three years. The probability of probation is not great, because the case is violent. The defendant Hou Moumou is from Shandong and there is no practice of probation in Tianjin. If he is identified as affray, he will not be suspended for more than three years. If he is identified as intentional injury to the procuratorate, he will even disagree with probation because of qualitative errors.
The collegial panel announced a new trial after a short period of after-court deliberation. The defendant Hou Moumou was ordered to stand up and wait for the judge to read out the fair sanctions against his fate, prepare to accept the judgment restricting personal freedom, and prepare to accept such a long or short restriction period. We were surprised when the judge read out "In view of the fact that the defendant Hou Moumou will be more conducive to reform in society", but Hou Moumou was still waiting anxiously. When he heard that "the suspended execution will not cause harm to society", Hou shed tears. At this time, "the defendant Hou Moumou committed the crime of affray and was sentenced to three years in prison with a three-year suspended execution". Hou Moumou and his parents from afar have been crying.
Now let me restore this story. Because it is a story, I will also tell you the facts that have no evidence to prove. In July 211, a company in Beijing was going to move its main business to Tianjin. After Tianjin Investment Co., Ltd. was established in Tianjin, the company needed to find an office address in Tianjin. At this time, a social person named Mr. Chen volunteered to find a house for the company. In September 211, the company was established in Tianjin and entered the office space sought by Chen Mou. Subsequently, Chen Mou asked Tianjin XXX Investment Co., Ltd. to pay 6, yuan as a favor fee, but the company only promised to pay 3, yuan. During this period, Chen asked Tianjin XXX Investment Co., Ltd. for benefits many times, and his attitude was very bad and barbaric. On October 15th, 211, Chen and Chen invited three Northeasters to Tianjin XXX Investment Co., Ltd. (11th floor of XXX Building). They demanded and argued for a while in the company lobby, and the receptionist politely invited them to the office. Chen Moumou and other four people chatted in the office for about half an hour. Suddenly, the door was knocked open and five or six young people came in, holding steel pipes, wooden sticks and knives in their hands. Hou Moumou saw: That's him, hitting people! Then steel pipes, wooden sticks and knives * * * *, with one after another. Hou Moumou and Chen Moumou did not say anything, but secretly hid next to the woman's house until the police arrived. After hitting Chen for a while, Chen was held out of the office. At this time, more than a dozen young people came up from the elevator, also steel pipes, wooden sticks and knives. The person who came late did not participate in the beating in the office, so he took Chen to the balcony and abused and beat him again. Chen suffered a broken limb, multiple stab wounds and blood flow, which led to fainting. Only a few minutes after the beating, more than 2 young people followed, and Hou Moumou was quietly waiting for the arrest of the police in the office.
When the detention center met Hou Moumou, he cried because we told his wife that she had a son. . . . .
In the investigation stage, we went to Tianjin several times to negotiate with the fellow villagers, friends and eldest brother of the victim Chen, talking about compensation and forgiveness, and finally completed the compensation and obtained forgiveness, and signed a compensation agreement with Tianjin XXX Investment Co., Ltd.
In the investigation stage, we went to Tianjin several times to negotiate with the fellow villagers, friends and eldest brother of the victim Chen, talking about compensation and forgiveness, and finally completed the compensation and obtained forgiveness, and signed a compensation agreement with Tianjin XXX Investment Co., Ltd. It took more than ten times. . . . . .
ii. excerpts from the indictment
. . . . . . Defendant Hou Moumou is the sales manager of XXX (Tianjin) Equity Investment Fund Co., Ltd. and the sales manager of the company. At about 1: 3 on October 15th, 211, the victim Chen, accompanied by his friends Li, Wang and Yang, came to a company located on the 12th floor of the office building of a company in the development zone of this city to discuss debt disputes with the company. Because Chen was more emotional, the defendant Hou, who was working in the company, was dissatisfied. Hou called Zheng (handled separately) and said that someone in the company had made trouble and asked Zheng to bring someone over. At about 12 o'clock, Zheng Moumou led more than ten men to the 12th floor of an office building with pickaxes, wooden sticks and iron pipes. Under the leadership of Hou Moumou, he entered a company. Later, Hou Moumou identified the victim Chen Moumou to Zheng Moumou and others, and Zheng Moumou and others beat Chen Moumou with the weapon they carried with them, and took Chen Moumou to the top of the office building to continue beating and then fled.
After the incident, Li Moumou immediately reported the case to the public security organ. After receiving the report, the police rushed to the scene and arrested the defendant Hou Moumou under the identification of Chen Moumou.
According to forensic identification, the victim Chen suffered from fractures of his right eye, left radius, left ulna, left hand and left patella, and the degree of soft tissue injury and chest injury was minor.
。 . . . . . In our court's opinion, in order to show off hegemony and suppress the other side, Hou Moumou gathered many people to beat others with weapons in the office, causing many people to be slightly injured. His behavior has violated the provisions of Article 292, paragraph 1 (2) and (4), and Article 25, paragraph 1 of the Criminal Law of the People's Republic of China. The facts of the crime are clear and the evidence is really sufficient, so he should be investigated for criminal responsibility for the crime of affray.
sentencing suggestion is three to four years! ! ! ! !
III. Excerpts from legal opinions and defense words
Opinions on the determination of Hou Moumou's crime of affray
. . . . . .
On April 13th, 212, a certain people's court filed a case for investigation, and now he is detained in Tianjin No.2 Detention Center. Entrusted by the relatives of the suspect Hou Moumou, our hospital was appointed as the defender of Hou Moumou.
after accepting the entrustment, we met with the suspect, learned about the case of the suspect, and read all the files and evidence materials in detail.
According to the facts and evidence, we believe that the fact that Hou Moumou was involved in the case should be characterized as intentional injury rather than affray. Please refer to your hospital for the following defense opinions:
First, Hou Moumou and others did not violate the public order.
the object of affray crime is social public order, and this case obviously does not have this feature.
the specific location of this case is: the office and balcony of the 12th floor of Building A2 of XXX Investment Co., Ltd. in Development Zone. The victim Chen has an economic dispute with a certain company; Defendant Hou Moumou is an employee of an investment company; Zheng and others are contacted by Hou; The bystander is a partner appointed by an employee of a certain company and Chen. And the victim is XXX, namely Chen Moumou.
all people are involved in this matter to some extent, and no one can stay out of the bystanders or the masses. Therefore, this case did not violate any public interests, but only violated Chen's personal health.
second, the specific behavior of Hou moumou and others is not affray.
the objective behavior of the crime of affray is the expression of intention to strike and suppress the other party while fighting. This case does not have this feature.
In the indoor beating behavior of an investment company, almost all people didn't speak. At the beginning, Hou Moumou identified Chen Moumou to Zheng and others, and then Chen Moumou was beaten in the office and then pulled to the balcony to be beaten. In this behavior, the two sides did not agree on the place of fighting in advance, nor did they book the place of fighting, but Hou Moumou improvised and asked Zheng and others to participate. Hou Moumou, Zheng Mou and others didn't say anything, and neither side violently beat "counting off", "negotiating", "showing off", "provoking", "showing off", "reprimanding" and "whether to yield".
Therefore, in the absence of mutual agreement on the location of the fight, there is no "prestige" or "spoil the fun", and there is no usurpation of the host's role. It was just an act of beating, beating, hurting and hurting Chen.
Third, Hou Moumou and others do not have the subjective intention of gathering people to fight.
The subjective intention of the crime of affray is knowing that it will disturb the public order, and holding an attitude of hope and active investigation for disturbing the public order, which cannot be proved and inferred in this case.
The subjective intentions of Hou Moumou, Zheng Mou and others can only be judged from the confessions and behavior patterns of criminal suspects.
According to the obtained confession; Hou moumou is subjectively only for the sake of maintaining company order. The subjective intention of Zheng Moumou and others cannot be verified because they are not at the crime scene.
from the specific behavior; See 2. The specific behaviors of Hou Moumou and others are not affray. It did not show the motives of dominating the king, making trouble with heroes, fighting with each other, and clearly indicating that they would beat each other. There is no rogue motivation or intention to seek excitement or pursue despicable desires in this kind of fighting behavior.
Fourth, the evidence of affray is insufficient.
First of all, there is no evidence to prove that Hou Moumou has affray behavior and affray intention. There is no evidence to prove that Hou Moumou has a bad influence on public order, that Hou Moumou and Zheng Mou have the intention of gathering people to fight, and that Zheng Mou and other people involved in gathering people to fight have the intention of gathering people to fight.
Secondly, the act and intention of affray cannot be proved. The affray must involve more than three people and be intentional. Hou Moumou stated that only intentional injury was recognized in this case. Without Zheng and others being brought to justice and supporting evidence, it was impossible to prove the affray behavior and affray intentionally, nor could it be proved for the purpose of disturbing the public order based on hooliganism.
Third, based on the principle of doubt and explanation in favor of the defendant, there are doubts about the determination of the crime of intentional injury and affray between the criminal suspect and the defendant, so the determination of intentional injury should be made in favor of the defendant.
there must be more than three participants in the crime of affray; The subject of the crime of intentional injury can be one person, or two or more people. If this case is characterized as affray, what kind of cases involving more than three people and injuries cannot be characterized as affray?
Defense words
(trial of Hou Moumou)
Presiding judge and judge:
Beijing Yiming Law Firm accepted the entrustment of the defendant Hou Moumou's family, appointed a special person to act as the defendant Hou Moumou's defender according to law, and issued an indictment involving Hou Moumou to the people's court for the prosecution of this case by consulting the case file, meeting the defendant and attending the trial. The indictment accuses Hou Moumou involved in the case of affray. From the aspects of the degree of proof, the result of proof, the nature of the case, etc., and around Hou Moumou's affray crime, the following light defense opinions are issued, and the collegial panel is urged to fully consider and adopt them according to law.
1. On the charges charged in the indictment.
The indictment alleges the facts: "We believe that the defendant Hou Moumou ignored the national laws, and in order to show off his domineering and suppress each other, gathered many people to commit armed attacks in the office, causing many people to be slightly injured ......"
Evidence:
Evidence volume, interrogation transcript of Li Moumou, P23.
"Only one of the people asked," Who is it? "... and then these people swarmed. ..... and then these people swarmed and pulled Fourth Brother out of the house.
"In the whole incident, did anyone else get hurt besides Brother Four?" "A:No."
evidence volume, interrogation record of Chen Mou, P15.
"I don't know exactly. They came to hit me when they saw me."
"After hitting me a few times, the other party dragged me out of the office and took me to the rooftop. The other party kept hitting me with wooden sticks and steel pipes."
Fact: At 12 o'clock on November 15th, 211, Hou Moumou called Zheng Mou and others to beat Chen Moumou, which was a purposeful injury. There is no intention of trying to be brave and fighting for hegemony and suppressing each other.
There were four people who came to the company with Chen, but Shan only hit Chen. Don't make noise, provoke or brag with words before hitting people. In this case, it is obvious that the crime of affray is used to infer and imagine the behavior of affray because of the nature of the cause and effect.
second, about the evidence.
evidence is the basis of judicial notarization and the only means to prove the facts of a crime. The determination of the facts of a case should be based on reliable and sufficient evidence. If there is no evidence to prove the facts of a crime, it will not be determined.
(1) The place where the criminal acts of Hou Moumou and others occurred.
evidence volume, interrogation record of Chen, P15.
"Q: When and where were you injured? Answer: The time was around 11: on October 15th, 211, and the place was XXX Investment Co., Ltd. "< P >" on the 12th floor of Building A2 in the development zone. After several strokes, the other party dragged me from the office to the rooftop, and the other party continued to beat me with wooden sticks and steel pipes. "
evidence volume, Li shouqiang's interrogation record, P23.
"... there was a fight between the 12th floor of Building A2 of a company office building in Tianjin."
purpose of proof: the beating incident occurred at 12th floor, A2 building, Investment Company Limited, Development Zone. It was Hou Moumou's work unit, which had an economic dispute with Chen Moumou, and the company's office and balcony were mostly on the same occasion.
(2) evidence of subjective intention of Hou moumou and others.
oral confession, interrogation record of Hou Moumou, police station, P119.
"A: I wanted the" Five Brothers "to come here quickly, and I didn't want to make a big deal out of it in case of a fight."
purpose of proof: the purpose of Hou moumou's letting "Brother Five" (Zheng) and others come here is to maintain and guarantee the normal order of the company, that is to say, it is also subjective and intentional to hurt Chen.
(3) The concrete evidence of the crime committed by Hou Moumou and others.
evidence volume, interrogation record of Chen, P15.
"I don't know exactly. When they saw me, they came and hit me."
"After hitting me a few times, the other party dragged me out of the office and took me to the rooftop. The other party continued to hit me with wooden sticks and steel pipes."
"Q: Besides you, was anyone else beaten? A:No. "
Testimony volume, interrogation record of Hou Moumou, day ] police station.