Lawyer's character

"I didn't mean it. I went to the traffic police team to steal my car, not to kill people. I refuse to accept the death penalty sentenced by the court of first instance..." Mao Dewen kept shouting like a neurotic, and finally was scolded by the presiding judge and the bailiff. With the "help", he calmed down.

"The appellant's defense lawyer stated the reasons for the appeal." After speaking, the presiding judge looked at the defense table.

"The defender believes that the facts determined by the court of first instance were unclear, the characterization was inaccurate, and the sentence was too harsh. The appellant did not commit the crime of robbery. The appellant secretly entered the traffic police team and prepared to drive away his own vehicle, which did not have the purpose of robbery. , and did not commit robbery, it did not constitute the crime of robbery, and his behavior did not belong to theft. In the process, the appellant used violence to cause casualties, which should constitute the crime of intentional injury.

The appellant’s behavior is not considered an extremely serious crime and the death penalty should not be applied for immediate execution. We sincerely request the court to give the appellant a lenient punishment. complete. "Fang Yi said.

In the next questioning session, the prosecutor and Fang Yi asked the appellant questions respectively. However, because the appellant had collapsed and his logic was confused, some basic facts of the case were answered in pieces. Most of the time the person asking the question and the person being asked are not on the same frequency at all, which is very uncomfortable.

After that, evidence and cross-examination were conducted. Since none of the three parties submitted new evidence, the procedure moved forward very quickly...

…

"The court investigation is over and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense that the debate should mainly focus on determining guilt, sentencing and other controversial issues.

First, the appellant Mao Dewen conducted his own defense. "The presiding judge said expressionlessly.

Mao Dewen's self-defense was still so elegant and crazy, and his tears were pouring out as if he wanted no money. He wanted to hold the presiding judge's thigh, shake his nose, and beg him to let him go.

With the "help" of the presiding judge and the bailiff, Mao Dewen finally stopped speaking without logic while sobbing.

"The defender of the appellant Mao Dewen has spoken." The presiding judge said expressionlessly.

"Presiding judge, judge: The defender believes that the appellant Mao Dewen secretly drove away from the traffic police compound without completing any formalities and was seized by the public security and traffic management agency in accordance with the law. The Mercedes-Benz owned by Mao Dewen belongs to Mao Dewen. While driving, using violence to cause casualties constitutes the crime of intentional injury.

The court of first instance held that the appellant Mao Dewen’s behavior violated Article 269 of the Criminal Law and constituted theft of stolen goods and the use of violence on the spot to cause death. He should be convicted of robbery in accordance with Article 263 of the Criminal Law. The punishment was due to unclear facts and wrong application of law. The reasons are as follows:

1. The act of the appellant Mao Dewen secretly driving away his seized Mercedes-Benz from the traffic police compound did not constitute theft.

First, Mao Dewen did not have the purpose of illegal possession.

In this case, the reason why Mao Dewen's Mercedes-Benz was seized was that he drove a Mercedes-Benz on the road without a driving license, violating the "Road Traffic Management Regulations of the People's Republic of China" on "Motor Vehicle Drivers Driving Vehicles" When traveling, you need to bring your driver's license and driving permit's regulations.

However, according to Article 9 of the "Supplementary Provisions on Traffic Management Punishment Procedures", after the public security traffic management agency temporarily seizes a vehicle, it shall return it to the person or the relevant unit, except for the vehicle that is decided to be confiscated in accordance with the law.

According to the above provisions, 'temporarily impounding vehicles' is only an administrative coercive measure taken by the public security and traffic management agencies in a short period of time against vehicles that violate regulations or have accidents. It does not constitute an administrative penalty, nor does it constitute confiscation or collection.

Before a decision is made to deal with the temporarily impounded vehicle, the public security and traffic management agency is only responsible for the custody of the temporarily impounded vehicle and does not enjoy any other rights. The ownership of the vehicle shall still belong to the owner of the vehicle. Therefore, after Mao Dewen's Mercedes-Benz was seized, the ownership of the car still belonged to Mao Dewen himself.

Second, the appellant Mao Dewen only secretly took away his Mercedes-Benz in the traffic police compound and did not steal or damage any other public or private property. Therefore, Mao Dewen's behavior did not constitute theft.

The provisions of Article 269 of the Criminal Law should not apply to Mao Dewen's act of causing death while secretly driving away the Mercedes-Benz where he was detained. Because the prerequisite for the application of Article 269 of the Criminal Law is that the appellant must have committed the crime of theft, fraud or robbery.

In this case, from beginning to end, Mao Dewen subjectively had no purpose of illegal possession, and objectively he did not commit any acts of theft, fraud, or robbery, and there was no possibility that his behavior would be converted into robbery.

2. According to the evidence in the case, Mao Dewen entered the traffic police compound on the night of the incident without carrying any murder weapon. After entering the scene, he took out the spare key of the Mercedes-Benz and prepared to drive away. Therefore, Mao Dewen's purpose was to drive away his seized vehicle.

When the appellant was preparing to secretly drive away the Mercedes-Benz, he was discovered and stopped by the officer on duty, which the appellant did not expect. In order to drive away his seized Mercedes-Benz as soon as possible, although Mao Dewen used violence against the personnel on duty, from the subjective point of view of the appellant, his true intention was to exclude the victim from hindering him from secretly driving away the Mercedes-Benz.

The appellant Mao Dewen did not have the motive to kill, and he had no intention to hope or allow the death of the victim to occur. However, Mao Dewen was fully aware that his actions would have the consequences of harming the victim. Therefore, while Mao Dewen secretly drove away his seized Mercedes-Benz, his actions that caused casualties constituted the crime of intentional injury.

In view of the fact that the appellant Mao Dewen was a first-time offender with little harm to society, and he truthfully confessed after being brought to justice, and his family compensated the victim’s family, the defender implored the High Court to change the sentence in accordance with the law and recommended that the appellant be sentenced to life imprisonment. complete! "After Fang Yi finished expressing his defense opinions, he glanced at Mao Dewen in the dock, who was still sobbing.

"The prosecutor will now speak," the presiding judge said.

"Presiding judge and judge: We believe that the court of first instance clearly determined the facts, applied the law correctly, and imposed an appropriate sentence. We ask the court to reject the appellant's appeal request in accordance with the law. Over." said the prosecutor.

"The prosecutor can respond to the defender's defense opinions." After the presiding judge finished speaking, he looked at the prosecutor's box.

“In response to the defender’s defense, we mainly express the following views:

According to the provisions of Paragraph 2 of Article 91 of the Criminal Law, private property that is managed, used or transported by state agencies, state-owned companies, enterprises, collective enterprises and people's organizations shall be treated as public property.

The Mercedes-Benz involved in this case was a vehicle seized by the traffic management department in accordance with the law. It is private property managed by state agencies under the above regulations and should be treated as public property.

The appellant's stealing of the seized Mercedes-Benz without approval constituted theft of public property, so the appellant's behavior should be considered theft.

Anyone who commits the crime of theft in accordance with Article 269 of the Criminal Law and uses violence on the spot to hide stolen goods, resist arrest or destroy criminal evidence shall be convicted and punished in accordance with the crime of robbery in Article 263 of the Criminal Law.

In summary, we believe that the appellant used violence to cause death in the process of stealing the Mercedes-Benz, and his behavior constituted the crime of robbery. Therefore, the facts found by the court of first instance were clear, the law was applied correctly, and the sentence was appropriate. complete. "The prosecutor responded to Fang Yi's opinion in a dignified tone.