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Party information:
The original public prosecution agency was the People's Procuratorate of Louxing District, Loudi City, Hunan Province. Appellant (defendant in the original trial) Ouyang Mou, formerly known as Xiong, male, Xinhua County, Hunan Province 1, Han nationality, junior high school education, farmer, living in Huxi Village, Qixing Street Town, Lianyuan City, Hunan Province. Suspected of robbery, he was detained in criminal detention on July 5, 2009 and arrested on August 2, 2009. Now detained in Loudi detention center. Defender Xi Xiangdong, lawyer of Shandong Meng Tian Law Firm. Defender Li Jinxing, lawyer of Shandong Chengsi Law Firm.
After the trial:
The People's Court of Louxing District, Loudi City, Hunan Province heard the case that the People's Procuratorate of Louxing District of Hunan Province sued and accused the defendants Ouyang Mou and Ouyang Moujia of committing robbery, and made a criminal judgment of (20 10) Louxing Punishment No.29. The defendant Ouyang Mou refused to accept the case and appealed to our court. On June 25th, 20 10, our hospital made a criminal ruling of (20 10)No. 14, and revokedNo. (20 10) No.29, and sent the case back to Louxing District People's Court for retrial. Louxing District People's Court formed a collegial panel separately according to law, and re-tried the case. During the trial, the defendant Ouyang Moujia escaped, and the Louxing District People's Court decided to suspend the trial of Ouyang Moujia on 20 12+65438123 October. Louxing District People's Court made (20 10) criminal judgment No.486 on 20 10 on 8 October. After the judgment, Ouyang still refused to accept it and appealed to our hospital again. After the court accepted the case, a collegiate bench was formed according to law, and the case was heard in the Loudi Intermediate People's Court on February 27th, 20 14. Loudi City People's Procuratorate appointed procurators and Xie Kaituo to appear in court to perform their duties, and the appellant Ouyang and his original defender attended the proceedings. After trial, the appellant Ouyang terminated the entrustment relationship with the original defender and entrusted lawyers from Shandong Meng Tian Law Firm and Shandong Chengsi Law Firm to defend him. With the approval of the Higher People's Court of Hunan Province, the trial period was extended for two months, and the trial has now ended.
The court of first instance found that:
The original judgment found that on the morning of July 2, 2009, the defendant Ouyang Mou proposed to rob Loudi, and Ouyang Moujia gathered Ouyang Yi, Ouyang Jia, Ouyang, Ouyang Mouyi and others (all handled separately), and then Ouyang Mou and Chen Mou (handled separately) drove Ouyang Moujia and others to Loudi City in a sky-blue taxi, and selected the location of the crime to carry out the corresponding division of labor. At 1 the next morning, except Chen Mou, six other people had supper at Jingu Market. Ouyang arranged for Ouyang Yi and Ouyang Mouyi to find the object of robbery, while others waited in the car. After Ouyang Yi and Ouyang Yi found the victims Xiao Mou and Wu Moumou, they immediately informed Ouyang Mou and others to follow the two victims to the downstairs of Jingu Market 10 building, and then held Xiao Mou and Wu Moumou with machetes in the driving taxi and took them to a remote place in the office village of Louxing District. Then Ouyang Mojia watched the wind, and the rest threatened Xiao and Wu with violence. Ouyang mou from. Through value appraisal, the value of the robbed mobile phone is 1 148 yuan, and the value of the gold necklace is 10842 yuan. The above facts are proved by the following evidence submitted by the public prosecution organ and cross-examined and certified by the court: 1, the registration form for accepting criminal cases and the decision to file a case, which prove the fact that the public security organ filed a case for investigation; 2. The statements and identification transcripts of the victims Xiao Mou and Wu Moumou prove the fact that the defendants Ouyang Mou and Ouyang Moujia robbed Xiao Mou and Wu Moumou with knives in the early morning of July 3, 2009; 3. The confessions and identification records of the co-defendants Ouyang Jia, Ouyang Yi, Ouyang Yi, which prove the fact that the four defendants and Ouyang Mou and Ouyang Moujia robbed the victims Xiao Mou and Wu Moumou with knives in Loudi City in the early morning of July 3, 2009; 4.2. Testimony of witness Guo Moumou, Jun, which proves the fact that the defendant Ouyang was not at home or in the army at the time of the crime; 5. The testimony of witnesses Liao Moujia, Guo Moumou, Liao Mouyi, He Moumou and Fu Mou proves that Ouyang Jia, the brother of the defendant Ouyang Mou, has been working in Guangdong and has no time to commit crimes; 6. The testimony of witnesses Ouyang Mobing, Ouyang Moding and Lu Moumou proves the fact that Ouyang Jia (Lu Moumou's husband) did not commit the crime; 7. The testimony of witness Zhu Moumou (nickname) proves the fact that Ouyang Mou called him on July 1 2009 with a mobile phone number beginning with 13 1 instead of his usual mobile phone number; 8. Witness Liao's testimony proves that Ouyang called him on July 2, 2009, but his phone number was unclear. 9. A call record of1.,which proves that there is no call record of Ouyang's commonly used mobile phone number1587 385181since July 3rd, 2009. 10. Show the photos of the mobile phone seized by the public security organ, photos showing the phone records of the defendant Ouyang, and identification records, which prove the fact that Ouyang talked with Zhu for three times on July 1 2009 and Ouyang talked with Liao for eight times on July 2, 2009; Evidence 7- 10 proves that the defendant Ouyang used the mobile phone number beginning with1587 3851811when committing the crime; 1 1. Description of Leping Police Station of Louxing Branch of Loudi Public Security Bureau, which proves Ouyang's arrival; 12, identify the scene photos and prove the basic situation of the case scene; 6. 13 price appraisal conclusion, which proves that the gold necklace and Nokia N72 mobile phone robbed by the victim Xiao were appraised as 1 1990 yuan; 14. Extract the transcript, which proves the fact that the public security police, under the guidance of the victims Xiao Mou and Wu Moumou, extracted two bank cards left by the defendant after the robbery at the crime scene; 15, which proves that the defendant Ouyang was brought to justice passively after being arrested; 16 household registration certificate, which proves that the defendant Ouyang was over 18 years old when he committed the crime.
The court of first instance held that:
The court of first instance held that the defendant Ouyang took the means of threatening violence with others for the purpose of illegal possession and robbed citizens' property on the spot, which constituted a crime of robbery. In the * * * crime, the defendant Ouyang played a major role and was the principal offender. Accordingly, in accordance with the provisions of Article 263, Paragraph 1 of Article 25, Paragraph 1 and Paragraph 4 of Article 26 and Article 52 of the Criminal Law of People's Republic of China (PRC), the defendant Ouyang was convicted of robbery, sentenced to eight years' imprisonment and fined 20,000 yuan.
Second instance request:
After the verdict was pronounced, the defendant Ouyang refused to accept it and appealed to our court. He appealed that the facts of the original judgment were unclear and the evidence was insufficient, and he requested the second trial to be acquitted. The reasons are as follows: (1) He only has a mobile phone number, 13 1 This number belongs to his uncle Chen Mou's army, and he didn't contact anyone at the time of the crime; (2) I grew up in Xinhua, then came to Lianyuan, lived in my uncle Chen Mou's military family, and had no contact with my peers in Huxi Village; (3) This case does not rule out the obvious contradiction between documentary evidence, physical evidence and other evidence.
We found that:
At the trial of the second instance, Ouyang's original defender suggested that the evidence in this case could not rule out reasonable doubts about the facts ascertained in the original trial. Ouyang's phone bill proves that Ouyang didn't contact the taxi driver to transfer the location of the crime when he committed the crime, and Ouyang used the mobile phone number beginning with 13 1, so it can't be determined that he has multiple mobile phone numbers. According to the presumption of innocence, Ouyang should be acquitted. At the second trial, the procuratorate held that the facts of the crime in this case were clear, the evidence was indeed sufficient, the applicable law in the original trial was correct, and the sentence was appropriate. The appeal should be dismissed and the original judgment upheld. It was found through trial that in the early morning of July 3, 2009, around 1, the victims Xiao and Wu were held in a taxi by five young men armed with machetes near Building Jingu Market 10 in Louxing District, Loudi City. The two victims were then taken to a remote place in the village of Dake Prescription in Louxing District, and five people snatched 6,500 yuan in cash from Xiao, a Nokia N72 mobile phone and a piece of gold.
The court held that:
The court believes that the fact that the appellant Ouyang committed robbery in the original judgment is unclear and the evidence is insufficient. The reasons are as follows: 1. The photos of the scene identified in the original judgment prove that Ouyang Moujia identified the crime scene; The conclusion of price appraisal proves the value of the robbed property; Extract the transcript, which proves that the public security police extracted two bank cards left at the scene after the victim was robbed; The testimony of witnesses Liao Moujia, Guo Moumou, Liao Mouyi, He Moumou and Fu Mou proves that Ouyang Jia, the brother of the appellant Ouyang, had no time to commit the crime; The testimony of witnesses Ouyang Mobing, Ouyang and Lu Moumou proves that Ouyang, another Ouyang family in the same village, had no time to commit crimes. None of the above evidence can prove that Ouyang has an objective connection with the robbery facts in this case. 2. The testimony of witnesses Guo Moumou, Jun, and Liao Xiongsheng and Yan Xiaomei, who were provided by the appellant Ouyang's original defender, are contradictory, which cannot be reasonably excluded, and Ouyang cannot be proved guilty of this crime. 3. The appellant Ouyang Mou was suspicious when he arrived at the case: Ouyang Mou confessed that Ouyang Jia was the proposer and the main messenger of the robbery, but Ouyang Mou was arrested, and the investigation organ issued a statement to prove that on the evening of June 13, 2009, investigators arrested Ouyang Jia in Qixing Street Town, Lianyuan City, but learned that Ouyang Jia was not at home, and later took Ouyang Mou at home to Qixing Street Police Station. The police handling the case took photos of Ouyang with their mobile phones, and sent the photos to the police of Loudi Leping Police Station through MMS, so that Ouyang Moujia could confuse Ouyang Moujia's photos. After Ouyang Mojia identified it, he pointed out that Ouyang was the person who claimed to be Ouyang Jia. After investigation, there is no such identification record in the evidence of this case, which cannot prove what photos Ouyang Moujia identified at that time, whether there were witnesses present at the time of identification and how to identify them. In addition, without verifying whether Ouyang Jia, Ouyang's brother, was involved in the crime or excluding another Ouyang Jia in the same village, the investigators did not give a reasonable explanation for why Ouyang was taken away directly. Therefore, there are great doubts about Ouyang's arrival. 4. There is a contradiction between the victim's statement and the perpetrator's statement: two hours after the crime, the victims Xiao Mou and Wu Moumou reported that they were robbed by five young people with machetes in Jingu Market 1 0 building at around1in the early morning of July 3, but the same perpetrator confessed that six people had committed the crime. Therefore, there are great doubts about the number of criminals in this case. 5. There is a contradiction between documentary evidence and the perpetrator's confession: Ouyang A, Ouyang A, Ouyang B, Ouyang B and others all mentioned that Ouyang contacted the taxi driver with his mobile phone during the robbery, but the detailed list of Ouyang's mobile phone calls obtained by the investigation organ shows that between July 2, 2009 and July 3, 2009, witness Liao proved that he had an affair with Ouyang on July 2, 2009. Witness Zhu Moumou proved that he had telephone contact with Ouyang on July 1 2009, and Ouyang used the number beginning with "13 1", but he could not prove that Ouyang used the number beginning with "13 1" to contact him at the time of the crime. The above evidence can only prove that Ouyang used other mobile phones before the crime, but cannot directly prove that Ouyang used other mobile phones at the time of the crime. At the same time, the public prosecution agency cannot provide objective evidence to prove that Ouyang used other mobile phones or other mobile phone numbers. Therefore, the evidence in this case cannot prove that Ouyang had telephone contact with the taxi driver. 6. Ouyang Jia's confession is inconsistent: there are contradictions between Ouyang Jia's confession in the investigation organ and the original trial that cannot be reasonably ruled out, such as when and where he knew Ouyang, whether he knew Ouyang or Ouyang Jia, and the objectivity and authenticity of his confession are in doubt. 7. Although Ouyang Moujia and other * * * associates all confessed to the fact of participating in the robbery, there are contradictions in the details related to Ouyang Moujia: (1) Ouyang Moujia confessed that on the morning of July 2, 2009, Ouyang Moujia went to Ouyang Mouyi, Ouyang Molin, Ouyang Yi and Ouyang Jia's home and asked them to go to Loudi together. Ouyang Jia, Ouyang Yi, Ouyang Mouyi and Ouyang all confessed that Ouyang Mouyi called them that day. (2) Ouyang Moujia confessed in the investigation organ that Ouyang Moujia and Ouyang Yi, Ouyang Jia, Ouyang Molin and Ouyang Mouyi all live in the same village, go to school in the same school and often surf the Internet together, so they all know each other. Ouyang Yi, Ouyang Jia and Ouyang Molin confessed that Ouyang Moujia introduced them when they went to rob. (3) Ouyang A confessed after the case, and it was Ouyang A who robbed together. After Ouyang A arrived, Ouyang A confessed that it was Ouyang A who robbed. Ouyang Mouyi, Ouyang Yi and Ouyang Jia all mentioned that Ouyang was the robber in their first confessions in June 65438 +65438 10+June 2009. To sum up, there are many contradictions in the confessions of Ouyang A and other accomplices about whether they know Ouyang, when and where they know Ouyang, and who gathered them to rob Loudi together, which cannot be reasonably ruled out. Therefore, it is doubtful whether Ouyang A and other accomplices knew Ouyang and whether Ouyang participated in the robbery. 8. All * * * associates confessed that after they came to Loudi on July 2, they checked in at the fifth and ninth floors of the Everest Hotel in Loudi Railway Station. After the robbery, they returned to the hotel to rest until the morning of July 3. However, the owner of the Everest Hotel proved that there were not six similar young people staying on July 2. 9. In this case, the taxi driver who picked up the perpetrator, the taxi used to commit the crime, the machete, mobile phone and necklace obtained from the robbery were not found. Ouyang Moujia and others confessed that they rented a sky-blue taxi to Loudi. The taxi driver's surname is Chen, and the license plate number is Xiang KX43. However, the investigation agency failed to find taxis and taxi drivers. At the same time, the murder weapon and stolen mobile phone in this case have not been verified. Because taxis, murder weapons and stolen goods are objective evidences that can directly prove whether the appellant Ouyang participated in the robbery, the lack of these evidences makes the existing evidence lack of objective physical evidence to confirm it. To sum up, although the evidence in this case can prove that the victims Xiao and Wu Mou were robbed by others in the early morning of July 3, 2009, according to the analysis of the evidence of the appellant Ouyang's participation in the robbery, there are doubts about the evidence of the number of criminals; Ouyang has major doubts in the process of arriving at the case; * * * The confession of Ouyang Moujia, an accomplice, is inconsistent, and his confession about whether and when he knew Ouyang Mou is inconsistent with other evidence in this case, and there are also contradictions with other accomplices' confessions about how to know Ouyang Mou; There are also contradictions in the witness testimony about whether Ouyang committed the crime. In addition, the taxi driver who drove to pick up the robbers, the taxi used in the crime, the murder weapon and the gold necklace and mobile phone obtained from the robbery were not found. Therefore, this case proves that the evidence of the appellant Ouyang's participation in the robbery has significant doubts, which cannot be reasonably excluded, and a complete chain of evidence has not been formed, which cannot meet the standard of proof with clear facts and sufficient evidence. Therefore, the appellant Ouyang and his defender's appeal grounds and defense opinions for acquittal were established and adopted by our court. The original judgment found that the facts were unclear and the evidence was insufficient. Accordingly, in accordance with the provisions of Item (3) of the first paragraph of Article 225 and Item (3) of Article 195 of the Criminal Procedure Law of People's Republic of China (PRC), the judicial committee of our court decided through discussion that the judgment is as follows:
The result of the second-instance judgment is:
1. Revoke the criminal judgment (20 10) of Louxing District People's Court of Loudi City, Hunan Province, that Louxing was sentenced to Zi Chu Zi No.486. Second, the appellant Ouyang is not guilty. This is the final judgment.
Judges:
Presiding Judge Zhao Yongan
Judge Zhou Wei.
Acting Judge Zhang Ting
Date of judgment: 201July 4 1 1 day.
Clerk Acting Clerk Xie