1. The actor voluntarily surrendered and did not truthfully confess his criminal facts until compulsory measures were taken. His behavior does not constitute surrender.
2. For a case of second instance in which only the defendant appeals, on the premise that the criminal facts are clear and the evidence is reliable and sufficient, if the court of second instance cancels the sentencing circumstances that the court of first instance finds beneficial to the defendant, and if it finds that it is voluntary surrender, the court of second instance may not increase the defendant's punishment due to the restriction of the principle of no additional punishment on appeal; If the revocation is unfavorable to the defendant's sentencing circumstances, if the recidivist is found, the defendant's punishment should be increased accordingly.
if it is a recidivist, the defendant's punishment should be reduced accordingly.
case index
Court of first instance: Yizheng People's Court of Jiangsu Province (23) No.331 (March 6, 24)
Court of second instance: Yangzhou Intermediate People's Court of Jiangsu Province (24) No.29 (April 23, 24)
Case
Defendant Mi Wentao was criminally detained on September 19th, 23 and arrested on September 3th of the same year on suspicion of committing affray.
Defendant Li Yonggang was released on bail on October 1, 23 on suspicion of committing affray.
On the night of February, 1998, the defendant Mi Wentao had a quarrel with Peng Silu, Wang Zhaofeng (both sentenced) and others in the Jinchi Ballroom in Shizhou Town, Yizheng City, Jiangsu Province because of trivial matters, and Chen Chao and Li Xiaofei (both sentenced) and others. The next night, Chen Chao and others smashed the taxi glass of the defendants Mi Wentao, Li Yonggang and Wang Zhaofeng near the Jinchi Ballroom. After the defendant Mi Wentao and Chen Chao agreed by telephone, the defendants Mi Wentao, Li Yonggang, Peng Sifeng, Ni Wanqing and Wang Zhaofeng gathered Sun Jianguo, Yang Jibing and Bruce Lee (both sentenced) together with wooden sticks and other equipment, and served Chen Chao, Li Xiaofei, Gao Jian, Du Jingfeng (both sentenced) and Wu Chunman with water pipes, wooden sticks and knives on the south side of Yizheng Health Bridge. On October 1, 23, the defendant Li Yonggang voluntarily surrendered to the public security organ, but did not truthfully confess his criminal facts. It was not until October 1 of the same year that compulsory measures were taken to obtain bail pending trial that he truthfully confessed his criminal facts. The defendant Mi Wentao took the initiative to report other people's criminal acts in the first instance, but it was not verified.
Trial
Yizheng People's Procuratorate prosecuted the defendants Mi Wentao and Li Yonggang for affray and the defendant Li Yonggang for surrender.
after hearing in public, Yizheng people's court held that the defendants, Mi Wentao and Li Yonggang, openly flouted the law and society * * * * *, collaborated with many people with weapons in public, and fought with Chen Chao and others, which constituted the crime of affray, and the circumstances were serious. Defendant Mi Wentao organized many people to fight, and was the organizer of affray. Defendant Li Yonggang actively participated in affray and should be punished according to all the crimes he participated in. Defendant Li Yonggang voluntarily surrendered himself to the public security organ, and can be given a lighter punishment according to law. Although the defendant Mi Wentao reported other people's criminal acts, but failed to verify them, it was not meritorious service. In view of the fact that the two defendants have a good attitude of pleading guilty after being brought to justice and have certain repentance, they may be given a lighter punishment as appropriate. The charges made by the public prosecution against the defendants Mi Wentao and Li Yonggang are clear, the evidence is true and sufficient, and the charges are established, which should be supported. Accordingly, on March 6th, 24, according to the provisions of Article 292, Paragraph 1 (2) and (4), Article 25, Paragraph 1 and Paragraph 4 of Article 26, Paragraph 1 of Article 67 and Paragraph 1 of Article 72 of the Criminal Law of the People's Republic of China, the court convicted the defendant Mi Wentao of affray as follows < P >.
Defendant Li Yonggang committed affray;
Defendant Li Yonggang was convicted of affray and sentenced to one year and six months' imprisonment, suspended for two years.
after the verdict was pronounced in the first instance, the defendant Li Yonggang accepted the sentence. The defendant Mi Wentao appealed that the other party should bear the main responsibility for the fight, and pleaded guilty after being brought to justice. He was a first-time offender and showed remorse. The fight did not cause any consequences, and he requested a lighter punishment.
After the second trial, the Intermediate People's Court of Yangzhou City, Jiangsu Province held that the appellant Mi Wentao and the defendant Li Yonggang in the original trial had a large number of armed gangs fighting with others for improper purposes. The appellant Mi Wentao organized many people to fight, belonging to the ringleaders, and the defendant Li Yonggang in the original trial actively participated in the fighting, which seriously disturbed the society and constituted the crime of affray. Although the appellant Mi Wentao exposed others' crimes, he failed to verify them and did not perform meritorious service. Li Yong, the defendant in the original trial, only voluntarily surrendered himself to the public security organs, but did not truthfully confess the criminal facts of armed fighting. He was released on bail pending trial before he truthfully confessed his criminal facts, which did not meet the conditions for surrender. It has the initiative to surrender the case and can be given a lighter punishment as appropriate.
The original judgment found that the criminal facts of the appellant Mi Wentao and the defendant Li Yonggang in the original trial were clear, the evidence was true and sufficient, and the conviction was accurate. However, it was found that the actions of the defendants Mi Wentao and Li Yonggang were "serious" because the crime of affray was not stipulated in Article 292 of the People's Republic of China (PRC) People's Criminal Law. The crime of affray did not stipulate serious circumstances, so the original trial was wrong and should be corrected. The original judgment found that the defendant Li Yonggang's behavior constituted surrender and was given a lighter punishment, which was an error of applicable law and should be revised. However, the revised judgment will lead to heavier punishment for the defendant. According to the principle of no heavier punishment on appeal, the people's court of second instance shall not increase the defendant's punishment when trying the defendant's appeal, so it is not appropriate for our court to directly revise the sentence. With regard to the appellant Mi Wentao's appeal reasons, such as "the other party should bear the main responsibility for the fight, and after being brought to justice, he pleaded guilty with a good attitude, was a first-time offender, showed remorse, and the fight did not cause any consequences, and asked for a lighter punishment", it was found that the appellant Mi Wentao played an organizational role in the affray, was the ringleader of the affray, and was mainly responsible for the occurrence of the affray. It is mainly responsible for the organization of gathering people to fight. Mainly responsible for the occurrence of; Its organization of gathering people to fight seriously disrupts the public order and causes harmful consequences; The original judgment considered that he had a good attitude of pleading guilty after being brought to justice and showed remorse, and he was given a lighter punishment as appropriate, so the appellant Mi Wentao's appeal reason could not be established. Accordingly, on April 23rd, 24, our court ruled as follows:
The appeal was dismissed and the original judgment was upheld in accordance with the provisions of the first paragraph of Article 19 and the first paragraph of Article 189 of the Criminal Procedure Law of the People's Republic of China.
principle of non-aggravated punishment on appeal ".