Whoever commits one of the following acts of provoking troubles and disturbing social order shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance: (1) beating others at will, and the circumstances are bad; (two) chasing, intercepting, insulting or intimidating others, and the circumstances are bad; (three) extortion or arbitrary damage, occupation of public or private property, if the circumstances are serious; (4) Causing serious disorder in public places.
Zhang, the second instance of the criminal judgment of gathering people to fight.
Jingzhou Intermediate People's Court of Hubei Province
criminal judgement
(20 18) E 10 sentence No.62
The former public prosecution agency Jingzhou District People's Procuratorate.
The appellant (defendant in the original trial) Zhang was detained in criminal detention on February 9, 20 16, and was arrested on June 4, 20 17. Now detained in Jingzhou District Detention Center, Jingzhou City.
Defender Rao, lawyer of Hubei Law Firm.
The appellant (defendant in the original trial) Chen Mou was detained by Jingzhou Branch of Jingzhou Public Security Bureau on June 7, 2065438+2007+65438, and was released on bail on the same day. 20 18 1 19 was arrested by Jingzhou district people's court on suspicion of causing trouble, and was executed by Jinan eco-cultural tourism branch of Jingzhou public security bureau on 22nd of the same month. Now detained in Jingzhou District Detention Center, Jingzhou City.
Defender Peng, lawyer of Hubei Chuyun Law Firm.
Appellant (defendant in the original trial) Jiang, 20 17 02 10, was taken residential surveillance by Jingzhou Branch of Jingzhou Public Security Bureau on suspicion of intentionally destroying property. 20 18 1 19 was arrested by Jingzhou district people's court on suspicion of causing trouble, and was executed by Jinan eco-cultural tourism branch of Jingzhou public security bureau on 22nd of the same month. Now detained in Jingzhou District Detention Center, Jingzhou City.
Huang, the defendant in the original trial, was detained by Jingzhou Branch of Jingzhou Public Security Bureau on February 30th, 20th16th, and was placed under residential surveillance on June 4th, 20th17th. 20 18 1 19 was arrested by Jingzhou district people's court on suspicion of causing trouble, and was executed by Jinan eco-cultural tourism branch of Jingzhou public security bureau on 22nd of the same month. Now detained in Jingzhou District Detention Center, Jingzhou City.
Defender Li, lawyer of Hubei Chuming Law Firm.
Zou Mou, the defendant in the original trial, was placed under residential surveillance by Jingzhou Branch of Jingzhou Public Security Bureau on October 9th, 2065438+2007+65438/KLOC-0. 20 18 1 19 was arrested by Jingzhou district people's court on suspicion of causing trouble, and was executed by Jinan eco-cultural tourism branch of Jingzhou public security bureau on 22nd of the same month. Now detained in Jingzhou District Detention Center, Jingzhou City.
Defender Chen Mou, lawyer of Hubei Chuming Law Firm.
Jingzhou District People's Court heard the case that Jingzhou District People's Procuratorate accused the defendants Zhang, Huang, Jiang and Zou of committing affray, and made a criminal judgment of (20 18 17) E 1003. After the verdict was pronounced, the defendants in the original trial, Zhang, Jiang, refused to accept the judgment of the first instance and appealed separately within the statutory time limit. After the court accepted the case, a collegiate bench was formed according to law to conduct the trial. After checking the evidence of the whole case, the appellants Zhang, Jiang and other co-defendants in the original trial were interrogated according to law, and their respective appeals and defense opinions were heard. The written defense opinions submitted by the appellant Zhang and the defendants Huang and Zou in the original trial were reviewed respectively, and the facts identified in the original trial judgment and the applicable laws were comprehensively reviewed. Considering that the basic facts are clear, he decided not to hold a trial. The case was reviewed by the collegial panel and submitted to the judicial Committee for discussion and decision, and the trial has now ended.
The original judgment found that on June 29, 20 16, Ding Mou and Long Mou went to Zhang's home to discuss the balance of the project payment in an A ×××××××× small car 1 driven by Zuo Mou. Defendant Zhang (son of Zhang 2) invited defendants Huang, Jiang, Liao and Qiang (handled separately), defendants Zou, Fan (handled separately) and Liao to invite Zhao and ***9 people to wait at Zhang 2' s home with long-handled knives and machetes prepared in advance. Defendant Zhang saw that it was inappropriate for Zhang and Ding to discuss the settlement of the project payment, so he asked the defendant and others to "contact" (referring to hitting people). When Zhang saw this, he drove the A A×××× small car to send Ding, Long and Zuo away. Defendant Zhang and other nine people stopped the car with a murder weapon, Zhang, Huang, Jiang and Zou respectively. Zuo Mou 1 Holding a "pistol" (which was not identified as a gun), pointing to the person who smashed the car. Huang, Jiang, Zou and others fled. Long and Zuo 1 took the opportunity to get off and escape. Defendants Zhang, Huang, Jiang and Zou chased and beat Long and Zuo 1. According to the appraisal, the damage degree of the dragon is secondary minor injury, the damage degree of the left 1 is secondary minor injury, and the loss value of Su's AA ×××××× small car is RMB 9255.
After the incident, the defendants Chen Mou and Zou surrendered to the public security organs respectively and truthfully confessed their crimes; After the defendants Huang and Jiang arrived at the case, they also truthfully confessed their crimes.
The above facts identified in the original trial include the relevant documentary evidence of filing, arrest and arrival of the case by the public security organ, the testimony of witnesses Li, Zhang 1, Ding and Wang, the price identification conclusion of Jingzhou District Price Certification Center, the appraisal opinions of Jingzhou Public Security Judicial Appraisal Center and Jingzhou Chuxinshengyuan Judicial Appraisal Center, and the appraisal opinions of defendants Zhang, Huang, Jiang and Zou.
The court of first instance held that the defendants Zhang, Huang, Jiang, and Zou were armed and gathered to fight, causing damage to their vehicles and causing minor injuries, all of which constituted the crime of seeking trouble and should be punished. Defendant Zhang is the principal of the crime of * * * *, and he voluntarily pleaded guilty in court, and may be given a lighter punishment as appropriate; Defendants Huang, Jiang and Zou were accomplices of the same crime, and defendants Zou surrendered themselves. Defendants Huang and Jiang confessed their crimes truthfully after they arrived at the case, and they could be given a lighter punishment. According to the provisions of article 292, paragraph 1 (4), article 25, paragraph 1 (4), article 27, paragraph 1 and article 67, paragraph 3 of the Criminal Law of People's Republic of China (PRC), the court of first instance ruled: 1. Defendant Zhang was convicted of affray and sentenced to three years and seven months in prison. 2. Defendant Huang was convicted of affray and sentenced to one year and seven months in prison. Defendant Chen Mou was found guilty of affray and sentenced to one year and six months' imprisonment. 4. Defendant Jiang committed the crime of stirring up trouble and was sentenced to one year and seven months' imprisonment. Defendant Zou was convicted of affray and sentenced to one year and six months in prison.
Appellant Zhang said that it was the other party who first came to my house with a gun and a machete to kidnap my father, and I asked someone to stop the car to save my father. My behavior was self-defense. The court of first instance made a mistake in defining the nature and improperly applied the law.
His defender argued that this case was caused by a civil dispute, and Zhang did not have the criminal motive of gathering people to fight. The original judgment was improper, and the facts about the opinions of gun experts were wrong. He asked that the case be sent back to the court of first instance for retrial.
Chen Mou, the appellant, appealed on the grounds that the court of first instance sentenced him too severely and asked him to be sentenced to one year's imprisonment or suspended sentence.
His defender argued that the case was caused by a debt dispute, and the two sides did not fight, and the responsibility for fighting was not investigated. Chen Mou's behavior does not conform to the crime of affray, so this case should be convicted of intentional destruction of property, and the original judgment found the crime wrong. Chen Mou plays a secondary role, being an accessory and surrendering himself, and should be given a mitigated punishment and suspended sentence. The original sentence is too heavy.
Jiang, the appellant, didn't know about Zhang's calling for help in advance, but only afterwards did he know that he was appealing for the project payment. The court of first instance sentenced him too severely.
Defender of Huang, the defendant in the original trial, put forward a defense opinion, arguing that the case did not happen in public, and Huang's behavior did not constitute the crime of gathering people to fight, but constituted the crime of deliberately destroying property, and the original judgment was improperly convicted. Huang is an accessory to this case and pleaded guilty after arriving at the case. Please give him a lighter punishment.
The defender of Zou Mou, the defendant in the original trial, put forward a defense opinion, arguing that this case was caused by a civil dispute, and the two sides did not agree to gather people to fight, and there was no fight. Zou's behavior does not constitute the crime of affray, and the original judgment is wrong in law.
It was found through trial that in late February of 2012,65438, the appellant Zhang's father Zhang contracted a new rural community construction project subcontracted by Li in Maojiagang Town, Gongan County. After the completion of the project, Li paid more than1100,000 yuan to Zhang for many times. As of 20 16, 1, Li Shang owed 65438 as the final payment of the project. During the period, Zhang asked his father for the final payment of the project, and had a dispute with Li. On June 28th, 20 16, Zhang Er and Li had another dispute over the balance of the project payment on the phone. Li promised to go to Zhang's house the next day to discuss the final payment of the project, so Zhang told his son Zhang that Li would come to his house. Zhang, the appellant, was afraid that Li would take someone to his home for revenge, so he immediately called the appellant, Jiang, Huang, Liao and Qiang (handled separately) to inform his father that there was a dispute over the project payment, and asked the above-mentioned personnel to cheer at his home the next day. To this end, Zhang also prepared steel pipes, kitchen knives, axes and other weapons in advance for storage at home, and asked people to make several knives. On the morning of June 29th, 20 16, Zhang called Huang, Jiang and Liao again and invited them to help at home. Later, the defendants Zou, Fan (handled separately) and Liao invited Zhao (pseudonym, handled separately) to help Zhang. Later, Zhang drove, Huang, Liao, Zhao and others to meet Zou, Fan, Jiang and others waiting at the roadside near Anjiacha, Ji 'an. Shortly after arriving at Zhang's home, "Qiangmou" also rushed to Zhang's home with a machete. Zhang and the above-mentioned nine invitees, armed with weapons prepared in advance, waited for the arrival of Li and others in Zhangjiazhong. On the morning of that day, Li Yin was unable to go to Zhang's family because of something. He appointed project manager Ding and employee Long to Zhang's home to discuss the final payment of the project. Long Rangzuo 1 drove his A×××× car from Gongan County to Zhangjia 2. After meeting Ding near Jingzhou Railway Station, Long and Zuo arrived at Zhang's home in Group 3, zaolin village, Jin 'an Town, Jingzhou District at noon that day. After Ding Mou and Zhang Er failed to discuss the final payment of the project, Zhang Er invited Ding Mou, Long Mou and others to have dinner at home. At this point, the appellant Zhang rushed over, grabbed the rice bowl from the dragon and buckled it on the table. The two men immediately clashed. Huang He stood by, surrounded by weapons. Zhang Er is afraid of making a big deal out of things, and he is going to drive the dragon's car to see Ding, Long and Zuo leave first. When Zhang 2 started the vehicle to send Ding to leave, Zhang instructed Huang and others to stop and fight. Subsequently, Zou Mou, Huang Mou, Jiang Mou, Zhao Mou and others successively smashed the car with a knife, and Zhang also smashed the car with a knife and chopped Long's left hand. Zuo 1 immediately took out a simulated "pistol" from his backpack and warned the person who smashed the car. Zhang, Huang, Jiang, Zou and others ran away. After the dragon snatched the gun from Zuo 1, he got off with Zuo 1 and Ding and fled separately. Zhang, Huang, Jiang, Zou and Zhang chased Long and Zuo 1 to a paddy field. Zhang, Huang, Jiang, Zou and Fan came forward with knives, respectively with Long and Zuo's 65448. Afterwards, Long and Zhang didn't call the police. After identification, the smashed Asu A A×××× small car was worth 9255 yuan; The injuries of Long Mou and Zuo Mou 1 were minor injuries of the second degree respectively.
At the same time, it was found out that after the incident, the public security organs seized 5.03 grams of ice and a hunting knife in Zuo 1' s backpack, a silver starting gun and 2 rounds of military pistol bullets in Long's car, and extracted a black simulation "pistol" in Zhang's two places. The extracted simulated "pistol" was purchased from the Internet by Longmou at a price of 4,200 yuan, and was carried by Zuomou 1 on the day of the crime. After identification, the gun does not have any performance of a gun and is not recognized as a gun. The two bullets seized were domestic 92-type 9mm pistol bullets, which were directly identified as ammunition.
It was also found that Long Mou and Zuo Mou 1 had been given administrative punishment by the public security organs for taking drugs. After the incident, the public security organs conducted a methamphetamine urine test on Long Mou and Zuo Mou 1, and the test results were positive. The latter two were sent to compulsory detoxification respectively.
Defendants Chen Mou and Zou surrendered themselves to the public security organs on 20 17, 17 and 19 respectively after the crime, and truthfully confessed their crimes. Defendants Huang and Jiang also truthfully confessed their crimes after returning to the case.
The above facts are recorded by the public security organs, such as related incidents and arrests, as well as the process of the case; On-site investigation transcripts and on-site photos; List of seized items; Identify transcripts and photos; Testimonies of witnesses Zhang 2, Li, Ding, Long, Zuo 1, Zhang 1, Wang and others; Related call records; Price certification opinions of damaged vehicles; Judicial expertise of damage inspection of Long Mou and Zuo Mou1; Appraisal of relevant firearms and ammunition and other appraisal opinions; The confessions of the defendants Zhang, Huang, Jiang, Zou and their associates Liao and Zhao were confirmed. Relevant evidence has been presented and cross-examined in court at the trial of first instance. After a comprehensive review in accordance with the law, our hospital confirmed the main facts and evidence listed in the first-instance judgment.
According to the appeal reasons put forward by Appellants Zhang, Jiang and the defense opinions put forward by Appellants Zhang, Jiang and Defendants Huang and Zou in the original trial, according to the facts, evidence and relevant laws and regulations of this case, the comprehensive analysis and judgment are as follows:
The appellant Zhang's appeal reason is that "the other party first came to my house with a gun and machete to kidnap my father, and I asked someone to stop and save my father. My behavior belongs to self-defense, and the defense opinion of the gun expert opinion put forward by the defender in this case is wrong.
After investigation, judging from the facts and evidence of this case, although there is a dispute between Zhang's father Zhang Er and Li due to the settlement of project funds, there is no major contradiction and dispute between them. Li did not refuse to pay the final payment of the project, nor did he make any violence or threat to Zhang 2 and his family. Even on the day of the incident, Ding Mou, Long Mou and others were entrusted by Li to discuss the final payment of the project with control devices in the appellant's house. However, in the process of discussing the project payment with Zhang 2, Long and others did not disclose guns and equipment on the spot to threaten Zhang 2 and his family by violence, nor did they restrict Zhang 2' s personal freedom. But after the conflict between Zhang and Long, Zhang offered to drive Ding and others away. There is no such thing as Zhang said that his father Zhang 2 was kidnapped by the other party to save his father. On the contrary, in order to retaliate against the other party, the appellant Zhang invited others and prepared the murder weapon in advance, first started to make trouble and instructed his accomplices to smash the car and hurt people, which had obvious criminal intention of gathering people to retaliate against others. His behavior is completely different from the essential attributes of justice and legitimacy of legitimate defense stipulated by law, and he does not have the legitimacy and legitimacy of defense. At the same time, the appraisal opinions made on the guns involved are objective scientific conclusions made by the appraisal institutions in accordance with legal procedures. Appellant Zhang did not apply for re-appraisal according to law during the investigation stage, and the defender did not provide corresponding evidence to prove the fact that he argued that the appraisal was wrong. Therefore, Appellant Zhang's appeal reason that his behavior belongs to self-defense and defender's defense opinion that the conclusion of gun appraisal involved in the case is wrong have no factual and legal basis, and this court will not adopt it.
Appellant, Defender of Appellant Zhang, Defendants Huang and Zou of the original trial and their defenders all put forward the defense opinions that the two parties in this case did not reach an agreement, and should not be convicted of affray, and the judgment of the original trial was improper.
After investigation, judging from the facts of this case, first of all, on the day of the crime, Ding Mou and Long Mou went to Zhang's home, and were appointed by Li to discuss with Zhang's father Zhang Er to settle the balance of the project payment. Subjectively, there was no intention and purpose of fighting with each other. Secondly, when Ding and Zhang were not ready to leave the final payment of the settlement project, Zhang and others immediately rushed to smash Long's vehicle, and Ding and Long did not fight with Zhang and others. Third, according to the law, gathering people to fight should investigate the criminal responsibility of both sides of the fight, while the original judgment only investigated the criminal responsibility of the defendant Zhang, but did not investigate the criminal responsibility of the other party Ding Mou, Long Mou and others. Therefore, the original judgment investigated the criminal responsibility of the defendant in the original trial for affray, which was an improper conviction. Therefore, the Appellant, Appellant Zhang's defender and defendants Huang, Zou and their defenders in the original trial claimed that this case should not be convicted of affray, and the defense opinion that the original judgment was improper was established and adopted.
Our court believes that the appellants Zhang, Jiang and the defendants Huang and Zou in the original trial made much ado about nothing, entangled with each other, ignored social order, and arbitrarily damaged other people's vehicles by violent means, resulting in property losses worth more than 9,000 yuan. The circumstances are serious, and they beat others at will with a weapon, causing minor injuries to more than two people. If the circumstances are bad, they should be punished as the crime of provoking trouble. Because the opposing parties in this case, such as Ding Mou and Long Mou, have neither the subjective intention of affray nor the behavior of mutual affray, the defendant in this case was convicted of affray in the original judgment, which was an improper conviction and was corrected by our court. Therefore, the reasons for appeal and defense opinions put forward by the appellant, the defendant in the original trial and their defenders were established and adopted. The appellant Zhang, headed by Zhang, invited many people to beat others with murder weapons and instructed his accomplices to smash vehicles, which played a major role in the joint crime of * * * * and was the principal offender in this case. After arriving at the case, he refused to plead guilty, did not think about repentance, and was subjective and vicious, and should be severely punished according to law. Appellants Chen Mou, Jiang and defendants Huang and Zou actively helped to participate in the crime. After being invited, they smashed cars and beat others at will, which played a secondary role in the accomplice crime and were accomplices. Zou Mou, the appellant and the defendant in the original trial, had surrendered himself. Huang Mou and Jiang Mou confessed their crimes truthfully after they arrived at the case, and they could be given a lighter punishment according to law. The main facts identified in the original judgment are clear and the evidence is indeed sufficient, but the application of law is wrong and our court will correct it. According to items (1) and (3) of the first paragraph of Article 293 of the Criminal Law of People's Republic of China (PRC), paragraphs (1) and (4) of Article 25, paragraphs (1) and (4) of Article 26, paragraphs (1) and (3) of Article 67 of the Criminal Procedure Law of People's Republic of China (PRC).
1. Revoke the criminal judgment of Jingzhou District People's Court (20 17) E 1003.
2. Appellant (defendant in the original trial) Zhang was guilty of stirring up trouble and was sentenced to three years and seven months' imprisonment.
(The term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention will be converted into one day of imprisonment, that is, from February 9, 20 16 to July 8, 2020).
Three. Appellant (defendant in the original trial) Chen Mou was convicted of stirring up trouble and sentenced to one year and six months' imprisonment.
(The term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment, that is, 2018 65438+1October 22nd to 201September 2nd1day).
4. Appellant (defendant in the original trial) Jiang was convicted of picking quarrels and provoking troubles and sentenced to one year and seven months' imprisonment.
(The term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment, that is, from 2018 65438+1October 22nd to 20 19 2 1 month).
5. Huang, the defendant in the original trial, committed the crime of stirring up trouble and was sentenced to one year and seven months in prison.
(The term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment, that is, from 2018 65438+1October 22 to 201August 5, 9).
6. Zou Mou, the defendant in the original trial, was guilty of seeking trouble and was sentenced to one year and six months in prison.
(The term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment, that is, 2018 65438+1October 22nd to 201September 2nd1day).
This is the final judgment.
Presiding Judge Liu Junping
Judge Zhang Xinyuan.
Judge Cao Lei.
August 13, 182
Clerk Tian Sisi.