Classic Defense Series - Zhang Mou Intentional Injury Case
Case Overview:
On the afternoon of October 15, 2017, defendant Zhang and his mother returned to their home in Longyan Silla from Xiamen and found that the door lock had been pried, so they called the police. Silla police went to Zhang's home to investigate the scene, and Zhang's half-brother Lin (Zhang and Lin did not know each other, had never met) broke into the room with an iron rod, and it was a stick to Zhang's head, and the two were pulled apart by the police during the tearing process. Then Lin called in front of the police to gather everyone, but the police did not stop it. The crowd gathered by Lin surrounded Zhang's mother and son in their home. Zhang Mou saw the situation and took a kitchen knife to hide on the balcony, and saw Lin Mou downstairs summoning more than a dozen young men. Lin Moumou and others gathered by Lin Mou arrived, rushed into Zhang Mou's home again, smashed into Zhang Mu with a stool, Zhang Mu fell to the ground, at the same time Lin Mou rushed to the balcony with a stick, smashing towards Zhang Mou's head, Zhang Mou raised his left arm to fight, and slashed Lin Mou's left arm with a knife in his right hand. Later, Zhang was beaten by the crowd gathered by Lin until he was pulled away by the police. On October 19, 2017, Lin's injuries were identified as minor injuries of the second degree. On January 3, 2018, Zhang was arrested.
In September 2018, the procuratorate filed a public prosecution with the court for the crime of intentional injury to Zhang, and Lin filed an attached civil lawsuit, demanding that Zhang compensate for economic losses of 277393.32 yuan.
In the first instance, Zhang mou had objections to the charges and facts charged in the indictment, believing that he was cutting and hurting Lin mou who rushed up to prevent Lin mou and others from hurting his mother, which did not constitute a crime.
Lawyer Xu Xiaoyun pointed out that Zhang was in legitimate defense, and the injury that was identified as a minor injury of the second degree was not formed by Zhang and could not be used as the basis for a verdict, and Zhang did not constitute the crime of intentional injury.
After trial, the court of first instance held that Zhang intentionally injured the body of another person, causing minor injuries to one person, constituting the crime of intentional injury. It is believed that Zhang and Lin beat each other and do not constitute legitimate defense; it is believed that it is necessary to extend Lin's wound due to clinical treatment, and the appraisal opinion can be used as the basis for the verdict. Zhang was convicted of intentional injury, sentenced to one year and one month in prison, and compensated Lin for various economic losses of 21,488.67 yuan.
The first-instance judgment was pronounced, and Zhang was not satisfied and filed an appeal.
Lawyer Xu Xiaoyun continued to serve as Zhang's second-instance defender, and continued to put forward a defense opinion that Zhang constituted legitimate defense and an appraisal opinion that could not be used as the basis for a verdict.
During the trial of the court of second instance, Zhang had been released on bail after sitting for a full year and one month. After the trial of the court of second instance, the conviction and sentencing of the criminal part of the court of first instance were upheld, and the civil compensation part was changed.
Problems:
1. Does Zhang constitute legitimate defense?
2. Should Zhang bear the legal consequences for the 3cm extended by the clinical operation on the basis of Lin's original wound? (The length of the wound 10 cm is the secondary standard for minor injuries, and the original wound in this case is 9 cm + the surgical extension is 3 cm = 12 cm)
(Longyan Intermediate Courtyard Hall)
Defence Opinions
Dear Presiding Judge and Judge,
Shaanxi Xu Xiaoping Law Firm accepted the entrustment of Zhang's relatives and obtained Zhang's consent to appoint lawyer Xu Xiaoyun as Zhang's second-instance defender. The defender's original judgment found that the facts were unclear, the evidence was insufficient, the law was wrong, and Zhang did not constitute a crime, and requested the court of second instance to change the verdict to Zhang's innocence in accordance with law. The defender now expresses the following defence opinion.
Keywords: The place of the crime occurred in Zhang's home The balance of forces between the two sides is very different The victim and the many people gathered took the initiative to attack Zhang twice
1. Zhang mou constitutes legitimate defense and does not bear criminal responsibility in accordance with law.
According to article 20 of the Penal Code, "legitimate defence means the act of stopping the wrongdoer that causes or is likely to cause harm to the wrongdoer in order to protect the State, the public interest, the person, property and other rights of the person or others from ongoing unlawful infringement".
According to the 12th batch of Guiding Cases issued by the Supreme People's Procuratorate on December 18, 2018, the standard for the boundaries of legitimate defense is clarified, holding that "illegal intrusion into a home or certain personal assault between acquaintances and relatives may be carried out in legitimate defense." In this case, although Lin and Zhang were half-siblings, Zhang did not know Lin, and Lin broke into Zhang's home with weapons to commit murder and injury, which met the definition criteria of the Supreme People's Procuratorate for legitimate defense.
1. Lin X illegally broke into Zhang X's home with an arm and committed murder against Zhang X, which is an ongoing unlawful infringement.
Although Zhang mou and Lin mou are half-siblings, they do not know each other. The house where the case occurred belonged to The property of a certain person of Zhang, and Lin mou, without permission, took the opportunity to enter the room with an arm and directly hit Zhang mou's head with an iron rod, and Lin Mou's violent injury behavior. Lin Mou said to himself "". Lin Mou beat Zhang Mou with an iron rod, Zhang Mou simply did not have time to prepare tools to fight, and could only fight with his bare hands and fight back, unfortunately, the original judgment identified Zhang Mou as "mutual beating", was it only possible to "either run or hide" in the face of illegal infringement? What's more, Zhang Mou's mother and son are in their own homes, where should they run? Where to hide? The original judgment denied Zhang's legitimate defense by inaccurately "beating each other", which was obviously contrary to legal justice.
2. After Lin was pulled apart by the police, dozens of people were gathered to surround Zhang's mother and son in their homes to prove that they did not intend to give up the attack, Zhang's mother and son had not yet substantially escaped from danger, and the unlawful infringement had not stopped and was still continuing.
Lin first broke into Zhang's home with an arm and beat Zhang, and after being separated by the police,。。 while. When the people gathered by Lin arrived at the scene, Lin held a stool and smashed Zhang's mother to the ground, and at the same time, Lin held a stick and smashed Zhang's head.
3. Zhang's behavior has the legitimacy of defense.
Lin first replaced Zhang's door lock without permission, and then invaded the room without permission,。。。 In this case, otherwise Zhang can completely harm Lin before the arrival of the people gathered by Lin. therefore.
4. Zhang's defensive behavior did not clearly exceed the necessary limit, not to mention that Zhang could exercise unlimited defense rights.
Lin mou entered the door and hit Zhang Mou on the head with an iron stick, and then gathered dozens of unidentified people to surround Zhang Mou's room and force Zhang Mou to the balcony. Lin Moumou, who was summoned by Lin Mou, took a stool and knocked Zhang Mou's mother to the ground, and Lin Mou hit Zhang Mou with a stick. At that time, the balance of strength between the two sides was huge, Lin and Zhang had only two mothers and children; from the comparison of the environment, dozens of people blocked the mother and son in their homes, Zhang was forced to the balcony, obviously Zhang was the weak side, Zhang and his mother had no way to escape except jumping off the building, and personal safety was already in real, urgent, and serious danger. If you do not fight back, the consequences are difficult to predict, so Lin's behavior should be identified as "committing a crime". According to Article 20 of the Criminal Law, Zhang can exercise unlimited defense rights, and there is no problem of excessive defense. The original judgment found that Zhang Mou's counterattack with a knife caused lin to injury was a "mutual beating" and thus negated legitimate defense, and its logic was.
In summary, in the face of unlawful infringement, we cannot demand that Zhang have a more rational choice, in fact, Zhang's behavior is already very rational, not to mention that the police did not stop Lin from gathering everyone, did not persuade Lin to leave home, and did not prevent everyone from entering Zhang's home, resulting in Zhang's mother and son "nowhere to hide, no way to escape", and if they do not defend themselves, they will suffer greater illegal infringement. Therefore, Zhang's behavior is in line with legitimate defense and does not bear criminal responsibility according to law.
Second, in this case, Lin X's appraisal as a minor injury of the second degree is insufficient.
(1) The hospital surgical record is only a record of the surgical process, but there is no mention of whether the extension of 3cm is necessary, there is no analysis and demonstration, and the appraisal agency has not analyzed and demonstrated the necessity of the extension.
。 During the second-instance trial, Lin's surgeon Zeng X clearly refused to issue a statement of the situation, the surgeon could not explain the necessity of the extension, but the original judgment held that there was a need for extension, which could only represent or be limited to the judge's personal opinion, and could not represent the medical point of view. Judges are not medical professionals, and in the absence of professional appraisals, the judge's personal opinion cannot be used as a basis for a verdict. The original judgment is based. At the same time, from Lin's outpatient medical records and inpatient medical records, the length of Lin's original wound has never been recorded, so how long Zhang's wound of Lin is not certain. According to the principle that the evidence should be suspected to be interpreted in favor of the defendant, it should be determined that the length of Lin's wound is unknown.
(2) According to the principle of judicial appraisal, an extension of 3cm cannot be used as the basis for appraisal.
According to several guiding opinions of the Fujian Provincial Public Security Department on the application of the "Standards for the Identification of the Degree of Human Injury" to the public security organs in the province, the clear appraisal principle requires that the standard is supreme, must be strictly observed, must not be broken, and insist that there is no suspected injury. In view of the problem of expansion, clinical exploration, debridement is necessary, according to the length of expansion identification, but... According to the spirit stipulated in the General Provisions of the "Interpretation of the Standards for the Identification of the Degree of Human Injury", Therefore, surgically prolonged 3 cm and injury wounds cannot be superimposed as criteria for minor injuries.
(3) The timing of the appraisal of the injury in this case was wrong, the source of the materials was unclear, and the appraisal procedures were illegal.
1. Identify the timing error.
According to the Reply Opinions of the Judicial Appraisal Center of the Supreme People's Court on the Relevant Provisions on the Application of the Minor Injury Standard, the timing of the appraisal of the length of the wound should not be appraised at the time of the suture of the wound or after the stitches have just been removed, and special attention should be paid to wounds that have just reached the lower limit length of the appraisal standard. Uncertainty in the determination of the length of the suture wound (especially in the critical state), such injuries should be assessed more objectively and reliably at the time of injury (before debridement and suturing) or after 3 months after medical termination, scarring, and stabilization of the injury. Lin Mou was injured on October 15, 2017, and was just identified on October 19, 2017 after the wound was sutured, which obviously did not meet the timing of the identification.
2. The source of the test material is not clear.
How does an appraisal body obtain medical information? How to ensure that the identification data is true and reliable? There is no complete record of this.
3. The appraisal procedure is illegal and the appraisal specifications are not complied with.
According to the Reply Opinions of the Judicial Appraisal Center of the Supreme People's Court on the Relevant Provisions on the Application of the Minor Injury Standard, the assessment of the degree of injury should be based on the consequences or outcomes directly caused by the injury, and for those who significantly aggravate the consequences of the injury due to medical factors, it is generally not appropriate to assess the degree of injury based on the final results, and surgical treatment does not include general debridement and suturing. According to the provisions of the "Standards for the Identification of the Degree of Human Injury", the basis for identification is calculated according to the length of the "wound". According to the provisions of Article 5.11 of the Interpretation of the Standards for the Identification of the Degree of Human Injury, the appraisal institution must make standardized and accurate measurements of the length of the wound. In this case, the hospital did not have a record and description of the length of the "wound" in Lin's physical examination record, and the appraisal agency did not have a description and record of the length of the "wound" during the appraisal, but described it as a "suture wound", according to the provisions of several guiding opinions of the Fujian Provincial Public Security Department on the application of the "Human Body Injury Degree Appraisal Standards" by the public security organs in the province, the "suture wound" cannot be compared or replaced with the "original wound". Prove that the appraisal institution did not comply with the professional norms and violated the relevant appraisal norms.
4. The case-handling organ deprived Zhang of the right to object to the appraisal opinion.
After the investigative organs served Zhang with the appraisal conclusions, Zhang X was not satisfied with the appraisal, and Zhang X and his defender proposed a new appraisal to the investigating organs and public prosecution organs, but they were all rejected without reason. According to item 10 of article 84 of the Judicial Interpretation of the Supreme People's Court on the application of the Criminal Procedure Law, it cannot be used as the basis for a verdict.
3. Mr. Zhang shall not bear legal consequences for the 3cm extended by the acts of Mr. Zhang himself.
。 In this case, it was precisely because it was extended by 3cm on the basis of the original mouth that Lin's wound was identified as a minor injury of the second degree. The defender argued that according to the principle of causation and self-responsibility in the criminal law, the aggravating consequences of the extension of 3cm of the hospital surgery made Zhang bear the principle of "no explicit provisions of the law and no punishment".
4. The evidence favorable to Mr. Zhang in this case was artificially concealed, and according to the principle that suspicion should be made in favor of the defendant, it was determined that Mr. Zhang did not constitute a crime.
In this case, the defender argued that there was reasonable doubt that there was evidence artificially concealed in favor of Zhang.
。 Lin broke into Zhang's home and committed an armed crime, the police just did the pulling behavior that ordinary people would do, did not perform police duties, did not drive Lin out of Zhang's room, and did not stop lin when he gathered everyone to surround Zhang's room, but let it go, objectively contributed to Lin's fearless implementation of aggression, aggravated Zhang's panic, and legitimate defense was imperative.
。 The law enforcement recorder is the most direct, objective and true evidence reflecting the truth of the case at the scene of the crime, but the police present prevaricated that they did not carry the law enforcement recorder. According to the Notice of the Ministry of Public Security issued the "Provisions on the Work of Public Security Organs on On-site Law Enforcement Video and Audio Recording", law enforcement recorders shall be worn for police handling, disposal of the scene, on-site inspection and inspection, and other work. Why is there a claim that a law enforcement recorder is "not worn" in this case? Obviously, the police present were to clear up the suspicion of dereliction of duty.
。 Lin himself admitted to holding a stick twice, and now the testimony of witnesses and defendants also proves that Lin beat Zhang with a stick twice, but what about the "stick" who held the stick twice? The police officers present at the scene proved that the stick was thrown away by himself. So why didn't the police present at the police station provide Lin Mou's crime tools? As a result, Lin's two-time weapon-holding crime tool in this case was not in the case.
Therefore, the defender believes that the evidence favorable to defendant Zhang in this case was artificially concealed, which objectively caused an unfavorable determination of Zhang, and it is even more regrettable that the original judgment also took the "knife" defended by Zhang with a knife as one of the reasons for the heavier punishment of Zhang, even though it reflected that the original judgment had made an unfavorable determination of Zhang from beginning to end, and hoped that the second-instance trial would correct it.
Longyan Intermediate Courtyard
V. During the second-instance trial, the victim or witness simultaneously retracts the confession, but cannot make a reasonable explanation for the retraction, and according to the provisions of the Judicial Interpretation of the Criminal Procedure Law, where a reasonable explanation cannot be given for the retraction and there is no other evidence to corroborate it, it cannot be accepted.
(1) During the second-instance trial, it is not impartial for the procuratorate or investigation organ to only make up the investigation on the victim's side.
The object of this supplementary investigation is the victim's side and the two policemen who have lost their neutral position, and a large amount of emotional verbal evidence has been checked as needed, and there is no investigation and evidence collection from the defendant's side, which is obviously a remedial measure taken to safeguard the erroneous determination of the first instance, and from this point of view, the collective reversal of confessions is no accident.
(2) It is no accident that the subjects of supplementary investigations collectively retract their confessions during the second-instance trial.
1. Lin retracted his confession in order to cooperate with the erroneous determination of the original trial.
A. Lin retracted his confession to the cause of the case. On October 18, 2017, the third day of the crime, Lin said that he went to Shui Yun Hua to get clothes, and when he met Zhang and his mother at home, he angrily picked up an iron rod and knocked it on Zhang's body, without mentioning the matter of supporting the elderly. But on March 6, 2019, Lin changed his mouth and asked Zhang why he didn't care about his father's medical expenses. After nearly two years, Lin's statement has changed so much, obviously in order to maintain the court of first instance's erroneous determination that "this case was caused by a maintenance dispute".
B. Lin's reversal of the fight process. Lin Mou's description of the fight process on October 18, 2017, the third day of the crime, the first fight was to see Zhang and his mother at home and angrily pick up an iron rod and knock it on Zhang Mou's body... The second fight was afraid that his uncle would be cut by Zhang, so he picked up a wooden stick on the ground and wrestled with Zhang. On March 6, 2019, Lin changed the second fight to Zhang Mou rushing to his uncle with a knife, and he went to stop it. Obviously, it is to uphold the erroneous determination of the court of first instance that "it is mutual beating and not legitimate defense".
2. Police officers Zhang X and Xu X retracted their confessions in order to cooperate with the erroneous judgment of the original trial.
Originally, in this case, Zhang X and Xu X were two uninterested witnesses, and their testimony was more effective than other verbal evidence, but these two witnesses were police officers present, and there were serious acts of dereliction of duty throughout the incident, such as not stopping Lin X's gathering personnel to surround Zhang X's door, not driving Lin X away to prevent the situation from deteriorating after knowing that Lin X had privately broken into Zhang X's door, sending police law enforcement without wearing law enforcement recorders, and even auxiliary police wearing plainclothes law enforcement, etc., resulting in a change in the position of the two witnesses, intending to wash away their responsibilities and not hesitate to retract their confessions. The two witnesses did not say a word about Lin Mou's second beating of Zhang Mou with a stick, but described Zhang Mou's active attack, Lin Mou's stable and passive situation, and even said that When Zhang Mou cut Lin Mou, Lin Mou did not want to hurt Zhang Mou's behavior, no one started to beat Zhang Mou's mother, she sat on the ground herself, etc. Obviously, in order to maintain the wrong determination of the first instance, the two witnesses took pains to change their testimony.
(3) The subject of the supplementary investigation collectively denied that he had not beaten Zhang, but the appraisal opinion of Zhang confirmed that Zhang had a brain trauma reaction and multiple soft tissue blunt injuries throughout his body.
(4) If the victim and the witness do not give a reasonable explanation for the reasons for the retraction and there is no evidence to corroborate it, the verbal evidence after the retraction cannot be admissible.
In this case, Lin mou had two conflicts in Zhang's home with the presence of the police, the first conflict was that Lin mou saw Zhang Mou and his mother and got angry, took an iron rod and hit Zhang Mou. The plot has lin's self-confession, as well as Zhang's confession and Zhang's mother's testimony that can corroborate each other. Subsequently, lin's telephone call to gather others was not only corroborated by the testimony of witnesses Zhang and Xu, but also the testimony of Zhang's confession and Zhang's mother. The plot of Lin gathering dozens of people to surround Zhang's family not only has Zhang's confession, but witnesses Zhang and Xu also confirmed that a group of people came (there were three or four people blocking the door and nearly 10 people downstairs), which is enough to confirm the fact that Lin gathered social personnel and relatives to surround Zhang's home. In this case, the witnesses Zhang X and Xu X did not prevent Lin X from calling and gathering social personnel, nor did they drive Lin X away from Zhang X's home, which was not only self-confessed by Zhang X and Xu X, but also corroborated by other testimonies, confessions, and statements. The second conflict was that Lin X, who was gathered by Lin X, insulted Zhang X and his mother without asking questions, and held a wooden chair and smashed it (Zhang X's testimony) and smashed it on the elderly woman (Xu X's testimony), the elderly woman fell to the ground, Lin picked up a wooden stick and smashed it against Zhang, and Zhang took a knife and slashed Lin's arm. The circumstances of the second conflict include Lin's statements during the investigation stage, zhang and Xu's testimony during the investigation stage, and Zhang's multiple confessions that can corroborate each other. During the second-instance trial, Lin retracted his confession, and Zhang, Xu, Lin and others retracted their confessions on key circumstances, but did not make a reasonable explanation for the inconsistencies, and even the supplementary investigation organ deliberately did not allow witnesses to give an explanation. According to the rules on the admissibility of criminal evidence, where the pretrial verbal evidence is inconsistent with the verbal evidence in court, and no reasonable explanation can be made, and the pretrial verbal evidence is corroborated by relevant evidence, the pretrial testimony may be accepted. Therefore, the verbal evidence of the second-instance supplementary investigation cannot be admissible and cannot be used as the basis for a verdict.
In summary, Zhang's conduct constituted legitimate defense and did not bear criminal responsibility according to law; the case-handling unit deprived Zhang of the right to apply for a new appraisal, the appraisal could not be used as evidence, and the legal consequences of requiring Zhang to bear the extension of the operation were insufficient. According to the Implementation Opinions of the Supreme People's Court on Comprehensively Promoting the Reform of the Trial-Centered Criminal Procedure System and the Opinions on Establishing and Improving the Working Mechanism for Preventing Unjust, False and Wrongly Decided Criminal Cases, Article 236 (3) of the Criminal Procedure Law stipulates that Zhang mou was acquitted in accordance with law.
Sincerely
A municipal intermediate people's court
Shaanxi Xu Xiaoping Law Firm
Lawyer: Xu Xiaoyun
8 August 2019