Summary of the main points of the adjudication
Point 7 of the judgment: If the witness has made multiple transcripts, the defense lawyer may compare multiple testimonies and examine whether the witness's testimony has changed repeatedly, inconsistently, and contradictoryly
Article 74 (8) of the Judicial Interpretation of China's Criminal Procedure Law stipulates that the testimony of witnesses should focus on examining whether the testimony can corroborate each other and whether there are contradictions
Gist of the judgment 9: Testimony and other evidence cannot corroborate each other
Case 7: Lou Hengwei and Zhang Xiaoyang were convicted of embezzlement of their duties
Case No.: Hubei Wuhan Intermediate People's Court (2017) E01 Xing Zhong No. 1466 Second Instance Criminal Judgment
Reasons for judgment:
During October 2005, defendant Lou Hengwei served as the legal representative of Wuhan Wanquan Real Estate Co., Ltd. (hereinafter referred to as Wanquan Company), and while being responsible for managing the daily affairs of Wanquan Company, Instructed defendant Zhang Xiaoyang, who was the cashier of Wanquan Company, to return RMB21,630,672,600,000 of the demolition proceeds of Wanquan Company from the Wuhan Jianghan District Urban Construction Key Engineering Headquarters (hereinafter referred to as the Jianghan District Key Engineering Headquarters), and after transferring the previous payments to the bank account of Wuhan Shichuang Communication Equipment Co., Ltd. (hereinafter referred to as "Shichuang Company"), where defendant Lou Hengwei was the legal representative, he then wired the RMB21.6 million of the money to the bank account of Zhejiang Hengyuan Industrial Co., Ltd. (hereinafter referred to as "Hengyuan Company"), of which defendant Lou Hengwei was the legal representative. On October 11, 2005, defendant Lou Hengwei arranged for Shen Mou, a financial officer of Hengyuan Company, to wire the above-mentioned funds of RMB21.6 million to the bank account of Wanquan Company in the name of the previous payments.
It was also ascertained that on October 12, 2005, defendant Lou Hengwei instructed defendant Zhang Xiaoyang to have a receipt for Wanquan Company to receive RMB21.6 million from Hengyuan Company for its investment. Defendant Zhang Xiaoyang handed over the above-mentioned receipts for collection and the documents provided by the bank for Hengyuan Company's transfer of RMB21.6 million to Defendant Liu Hong, who was the financial director of Wanquan Company, and Defendant Xiong Jie, who was the accountant, for review and accounting. Defendant Liu Hong, at the behest of Defendant Lou Hengwei, arranged for Defendant Xiong Jie to record the above-mentioned investment receipts, record the funds as hengyuan Company's investment funds on the accounting vouchers and include them in other payable accounts, and defendant Liu Hong, as the financial supervisor of Wanquan Company, signed and confirmed the above-mentioned accounting vouchers.
It was also ascertained that in order to disguise that the above-mentioned funds of RMB21.6 million were the demolition and relocation proceeds of Wanquan Company, the defendants Zhang Xiaoyang, Liu Hong, and Xiong Jie, as the financial personnel of Wanquan Company, transferred RMB21,630,672.60 to wanquan company's bank account, and also transferred it from wanquan company's bank account to the bank account of Shichuang Company. The vouchers of the relevant bank documents transferring RMB21.6 million of the above amounts from the bank account of Shichuang Company to the bank account of Hengyuan Company were not recorded in the financial accounts of Wanquan Company and related units. Subsequently, defendant Lou Hengwei instructed defendants Zhang Xiaoyang, Liu Hong and Xiong Jie to transfer RMB21.6 million of the above-mentioned amounts from Wanquan Company's bank account to Shichuang Company's bank account in the form of a loan, and recorded it in Wanquan Company's financial accounts as accounts receivable from Shichuang Company, and thereafter, this amount was returned to Wanquan Company by Shichuang Company in full. Subsequently, after the public reported the case, the public security organs arrested the defendants Lou Hengwei, Zhang Xiaoyang, and Xiong Jie on May 17 and 23, 2014, respectively, and on May 23, 2014, after the public security organs grasped the clues of the crime, they notified the defendant Liu Hong by telephone to accept the investigation, and the defendant Liu Hong immediately went to the public security organs for interrogation.
It was further ascertained that on September 24, 2002, defendant Lou Hengwei and his wives Chen X1, Chen X2 and Wang X registered and established Hengyuan Company with the administrative department for industry and commerce, and defendant Lou Hengwei held 50% of the company's shares, Chen X1 held 30% of the company's shares, Chen X2 held 10% of the company's shares, Wang X held 10% of the company's shares, and the company's legal representative was defendant Lou Hengwei.
On April 8, 2005, the shares of Wanquan Company were changed to 40% held by Hengyuan Company, 35% held by Chen Mou1 and 25% held by Yang Mou, and the registered capital of the company was RMB22 million (the registered capital on December 20, 2005 was changed to RMB80 million), and the legal representative of the company was defendant Lou Hengwei. On January 25, 2007, the shares of Wanquan Company were changed to 65% held by Hengyuan Company and 35% held by Chen Mou1. On November 16, 2007, the shares of Wanquan Company were changed to 75% held by Hangzhou Real Estate Industrial Development Co., Ltd. (hereinafter referred to as Hangfang Industrial Company) and 25% held by Zhejiang Tianping Legal Business Agency Company (hereinafter referred to as Zhejiang Tianping Company).
On April 28, 2005, the shares of Shichuang Company were changed to 60% held by defendant Lou Hengwei and 40% held by Yang, with a registered capital of RMB 5 million, and the legal representative of the company was defendant Lou Hengwei.
The evidence of the above facts determined by the original trial includes: 1. reporting materials, arrest process, cracking the case, list of seized items, and detailed information of the permanent population; 2, industrial and commercial archives, meeting minutes, information notes, remittance slips, incoming bills, reply notes, electronic remittance supplementary reports, accounting vouchers, receipt receipts, IOUs, transfer check stubs, equity transfer agreements, receipts, and other documentary evidence; 3, asset appraisal reports, electronic data appraisal reports, and special audit reports; 4, witness testimony; 5, defendants' confessions and defenses.
Jurisprudence:
In response to the opinions of the appellants and defenders, as well as the opinions of the People's Procuratorate of Wuhan Municipality, Hubei Province, on the basis of the facts, evidence and relevant legal provisions ascertained, this court's comprehensive judgment is as follows:
(1) Regarding whether Lou Hengwei and others have subjective intent to encroach on the crime of office encroachment. After investigation, the existing evidence proves that lou Hengwei, Liu Hong and others instructed Zhang Xiaoyang and Xiong Jie to recycle the 21.6 million yuan of the demolition and relocation money involved in the case, enter the Wanquan company in the name of the investment funds of Hengyuan Company, and record it under the company's "other payables" accounting account, but the purpose is to increase the company's costs and avoid taxes, and there is no evidence to prove that they have the subjective purpose of taking the money involved in the case for themselves.
(2) Regarding whether the nature of the money involved in the case is not recorded and has been reversed through a cycle. After investigation, although the money involved in the case was returned to Wanquan Company in the name of the past and was recorded in the "other payables" account, the money was actually occupied and controlled by Wanquan Company and still belonged to the property of the company. The aforementioned bookkeeping does not directly change the ownership of the money involved.
(3) Regarding whether the money involved in the case was actually in the possession of Lou Hengwei and others. After investigation,
The money involved in the case was returned to the accounts of Wanquan Company until November 2007, when Hengyuan Company and Chen Mou1 transferred 100% of the equity of Wanquan Company to Hangfang Industrial Company, and there was no evidence to prove that the money was illegally possessed and disposed of by Lou Hengwei and others. In addition, there is no evidence to prove that Hengyuan Company or Lou Hengwei claimed rights or obtained relevant benefits from Wanquan Company with the "investment funds".
(4) Testimony of witness Yang Mou. After investigation, Yang's repeated testimonies on the fact that the money involved in the case were recycled and recorded in the name of Hengyuan Company's investment funds were inconsistent, contradictory, and contradictory with other evidence. At the same time, there is a conflict of interest between Yang and Lou Hengwei, and the authenticity and objectivity of his testimony are in doubt. This Court does not accept it.
In summary, the existing evidence cannot confirm that Lou Hengwei and the other four people have the subjective intention to embezzle 21.6 million yuan, cannot confirm that the circular reversal of the accounts of Lou Hengwei and the other four people has led to a change in the nature of the money involved in the case, and objectively there is no result that the money is actually occupied by an individual, and their acts are not in line with the criminal composition of the crime of embezzlement of office. Both the appellant and the defender submitted the grounds of appeal and the defence opinion that did not constitute the crime of encroachment on office, which were adopted by this Court. The opinion of the People's Procuratorate of Wuhan Municipality, Hubei Province, is not accepted by this court.
This court held that the evidence in the original judgment finding that the appellants Lou Hengwei, Zhang Xiaoyang, Liu Hong, and Xiong Jie had committed the crime of encroachment on their positions was insufficient, and the appellants Lou Hengwei, Zhang Xiaoyang, Liu Hong, and Xiong Jie should be acquitted in accordance with law.
Case 8: Li Xinli's crime of smuggling, selling, transporting, and manufacturing drugs
Case No.: Pingjiang County Court (2017) Xiang 0626 Xingchu No. 170 First Instance Criminal Judgment
The Pingjiang County People's Procuratorate alleged that defendant Li Xinli had contacted him by telephone in advance and sold heroin to drug addicts Yu mou and others three times in the teachers' dormitory in Pingjiang County, hereinafter referred to as Siyuan School) in November 2014, with a total transaction amount of 780 yuan. The specific facts are as follows:
1. On November 3, 2014, drug addict Yu and Qiu agreed that Yu would call defendant Li Xinli to purchase heroin from the defendant. Defendant Li Xinli sold a small package of heroin of 200 yuan to Yu near the teacher's dormitory of Siyuan Experimental School, and Yu bought drugs and smoked them together with Qiu;
2. On November 4, 2014, drug addict Yu and Qiu agreed that Yu would call defendant Li Xinli again to purchase heroin from the defendant. Defendant Li Xinli sold Yu a small bag of heroin of 200 yuan near the teacher's dormitory of Siyuan Experimental School, and Yu bought drugs and smoked them together with Qiu;
3. On November 5, 2014, drug addicts Yu, Qiu and Ou jointly agreed that Yu would call defendant Li Xinli to buy heroin, Yu would rent a motorcycle to Siyuan Experimental School to find the defendant for a transaction, and Qiu and Ou would wait near the Fourth People's Hospital of Pingjiang County. Defendant Li Xinli sold Yu a 380 yuan two small package of heroin in Room 501 of the teacher's dormitory of Siyuan Experimental School, which was seized on the spot by the police of the Criminal Investigation Brigade of the Pingjiang County Public Security Bureau, and the second small package of heroin was seized from Yu. The net weight was 0.5495 grams; RMB380 in cash was seized from defendant Li Xinli at the scene; 14 small packets of heroin with a net weight of 2.2233 grams were seized from Li Xinli's bedroom bed; and 86 red magu pills with a net weight of 8.4238 grams were seized from the bedroom safe.
After the drug appraisal conducted by the Yueyang Municipal Public Security Bureau Physical Evidence Laboratory, two small packets of drugs with a net weight of 0.5495 grams were seized from Yu Mou's body, and heroin components were tested; fourteen small packets of drugs with a net weight of 2.2233 grams were seized from the bed of defendant Li Xinli's bedroom, and heroin ingredients were detected; 86 red pills with a net weight of 8.4238 grams were seized from the bedroom safe, and the caffeine ingredients were detected.
The public prosecution organ believes that the defendant Li Xinli has repeatedly sold drugs, and should be investigated for criminal responsibility for the crime of drug trafficking, and hereby initiates a public prosecution, please sentence her according to law.
This court holds that the public prosecution organ accused Li Xinli of committing the crime of drug trafficking, and now, in light of the facts ascertained at trial, a comprehensive judgment is made on the contradictions and doubts between the evidence and the alleged crime as follows:
First, in the first and second cases of the indictment, there are the testimonies and phone calls of Yu and Qiu in terms of evidence, but Yu's testimony only gives a detailed account of the time he was arrested on November 5, 2014, and does not give a detailed confession about the process of purchasing drugs from Li Xinli on November 3 and November 4, but only generally speaks of buying drugs 7 or 8 times before November 5, and the specific time and place are not clear, sometimes at the door of her house, sometimes Li Xinli sent downstairs. However, according to the confessions of Yu and Li Xinli, Yu did not go into Li Xinli's room, but Yu confessed when questioned by the public security organs that she "did not know where Teacher Li's drugs came from, only that she should put the drugs in the safe in her bedroom." Since Yu did not enter Li Xinli's room, why did he know that Li Xinli had put the drugs in the safe in the bedroom. According to Qiu's testimony, for November 3, 2014 and November 4, 2014, Yu mou purchased drugs twice, Qiu mou had detailed testimony, but Qiu did not directly see Yu and Li Xinli trading, Qiu said that on November 4, Yu mou on the way to buy drugs, in the middle of the way to call Yu to ask how much drugs, but according to the call details record, it did not show that Li Xinli took the initiative to call Yu's phone. This court held that there was no complete chain of evidence between the evidences on November 3 and November 4, 2014, and That Yu's testimony was inconsistent, and there were contradictions between Qiu's testimony and the detailed statement of the call.
Second, regarding the third indictment, the existing evidence reflects the following problems: 1. Regarding the source of drug funds, there are contradictions between witness testimony, Yu's testimony states that he only has 180 yuan, and his friends give 100 yuan each, a total of 380 yuan to buy drugs; and Qiu's testimony states that Qiu himself gave 160 yuan (100 yuan, 50 yuan, and 10 yuan) to Yu; Ou's testimony states that Qiu gave 160 yuan to Yu and did not make up money. 2. When the public security organs arrested Yu, they seized two packs of heroin from Yu's hands with a net weight of 0.5495 grams, each with an average weight of 0.2747 grams, while the 14 small packets of heroin seized in Li Xinli's bed had a net weight of 2.2233 grams, and each package weighed 0.1588 grams. 3. Who owns the heroin seized by the public security organs in Li Xinli's bedroom bed and the drugs in the safe. The confession of defendant Li Xinli's ex-husband Mao said that he usually injected heroin, and the amount of one injection was about one and a half grams. This corresponds to the weight of heroin per pack in the bed. In addition, when the public security organs searched Mao, the search record did not show that the safe was searched, Mao previously said that the safe was Li Xinli's, and in the retrial and supplementary investigation, he confessed that it was his, but did not remember the password, Li Xinli said that the safe was Mao's. Who the drugs in the safe actually belonged to, there is no other evidence to support it.
In summary, this court holds that the contradictions between the first and second accusations of the public prosecution organs and the witness testimony and the detailed telephone calls provided by the public prosecution organs cannot form a complete chain of evidence, and the facts of the two accusations cannot be determined. For the drugs and Magu seized in Li Xinli's room, due to the special nature of the case (the defendant's ex-husband was sentenced to life imprisonment for drug trafficking), the existing evidence cannot exclude the possibility that they were left behind by his ex-husband, so the above drugs cannot be identified as the quantity of drugs sold by defendant Li Xinli. In the third case of the alleged facts, although there are witnesses' testimony, drug funds seized at the scene, drug scene video materials, call details and other evidence, the source of drug funds and the quantity of drugs are doubtful and cannot be reasonably explained, the video data is incomplete, the existing evidence cannot form a complete evidence chain, and it is not enough to exclude other possibilities, so the facts of the allegation cannot be determined.
After discussion by the adjudication committee of this court, it is held that the facts of this case are unclear, there are contradictions between the evidence, and they cannot be reasonably explained, and a complete chain of evidence cannot be formed, which is not enough to exclude other possibilities. The evidence provided by the public prosecution organ is insufficient to convict the defendant.
Case Nine: Ren Hailing's intentional homicide
Case No.: Shaanxi Xi'an Intermediate People's Court (2012) Xi xing yi chu zi no. 00198 first instance criminal judgment
The People's Procuratorate of Xi'an City, Shaanxi Province, alleged that in 2005, defendant Ren X met Hua and lived together in a rented house. In 2007, Hua met and had an ambiguous relationship with the victim Mi, and then proposed to break up with Ren, and Ren hated Mi for this. At about 22:00 on May 14, 2008, Ren, pretending to be Hua's sister, went to the rented house of Mi, Room 102, No. 76, Tielumiao Village, Yanta District, Yanta District, and in the small talk between the two, the defendant Ren X let Mi drink the coffee milk tea he brought and put with sedative drugs, and when Mi was asleep, he stabbed Mi's son Ji X B in the neck with a knife, and then used a knife to cut Mi X's left wrist and fled the scene. According to forensic medical identification: Ji Mouyi was stabbed in the neck and died due to rupture of the vertebral artery and loss of a large amount of blood; Mi's injury was a minor injury.
Accordingly, the public prosecution organ held that the defendant Ren X retaliated against the murder because of emotional entanglement, and his behavior had violated the provisions of article 232 of the Criminal Law of the People's Republic of China, and he should be investigated for criminal responsibility for intentional homicide, and submitted to this court for sentencing according to law.
During the trial, defendant Ren denied the indictment's allegations of intentional homicide, arguing that it was the victim Mi who stabbed her with a knife first, and she took Mi's child to block the knife before causing the child to die. His defender submitted that the indictment alleging that the defendant Ren X had put a sedative drug in the coffee and milk tea drunk by the victim Mi X and killed Ji X B with a knife was insufficient, and the public prosecution's accusation could not be established.
The plaintiffs in the attached civil lawsuit, Mi X and Ji X A, sued for an order to compensate them for economic losses of 494196 yuan. Among them, funeral expenses are 21,226 yuan, death compensation is 364,900 yuan, transportation costs are 520 yuan, medical expenses are 550 yuan, lost work expenses are 7,000 yuan, and mental loss fees are 100,000 yuan.
This court holds that the determination of the facts of the case must be based on evidence. The evidence for finding the defendant guilty and imposing a criminal punishment must be credible and sufficient, that is, the facts of conviction and sentencing must be proved by evidence; the evidence on which the conviction is based has been verified to be true through legal procedures; and the evidence of the whole case has been comprehensive, and reasonable doubts have been excluded from the facts ascertained. In response to the fact that the defendant Ren X was accused of intentional homicide, the Xi'an Municipal People's Procuratorate produced evidence such as Ren X's early confession during the investigation stage and the inspection and appraisal documents of the Xi'an Municipal People's Procuratorate, the evidence in the whole case did not form a complete evidence chain and proof system. The main manifestations are: (1) Evidence such as the statements of the victim Mi X, the testimony of witnesses Hua X, Ji X A, Wang X, and others presented by the public prosecution organ in court, and the telephone records can only prove that the defendant Ren X and Hua X and Mi X have emotional entanglements, and Ren X learns that Hua X has a grudge because Mi X wants to break up with him, and has the motivation to commit the crime; Ren X and Mi X have contacted each other many times on the day of the crime, have been to the scene of the crime, and have the time to commit the crime. (2) The physical evidence test report provided by the public prosecution organ on the blood stains on the victim's pajamas and bed sheets can only prove that the substance is present in the victim's body, but how the substance entered the body of the victim, the source and whereabouts of the sedative drugs containing diazepam and alprazolam, and the public prosecution organ did not provide solid and sufficient evidence to prove it. (3) Although defendant Ren X made a confession of guilt after his arrest, from investigation to trial, Ren never confessed to the fact of using sedative drugs. (4) The defendant's repeated confessions after Ren X's return to the case were inconsistent. (5) The investigating organs did not extract the physical evidence such as coffee, milk, teacups, cigarette butts, mobile phones, keys, and blood coatings mentioned in Ren's confession, and could not confirm the authenticity of his confession. (6) The investigative organs did not completely check the households around the scene, whether the gate of the courtyard where the victim Mi lived was closed on the night of the crime, and whether it was anti-locked, nor did it conduct a detailed investigation, and it cannot be ruled out whether there were other people who entered the scene of the crime on the night of the crime. (7) The investigative organ did not conduct a fingerprint identification of the knife provided, and the blood stains of the deceased Ji X B were not detected on the knife, and it could not be conclusively proved that Ren X killed Ji X B with this knife. (8) There are contradictions between the evidence: (1) Witness Wen X proves that after she entered the scene, she placed a fruit knife on the coffee table in Mi's room, she pulled the fruit knife to the ground, and called 110 and 120, but the investigation organ's on-site investigation record showed that there was a fruit knife on the white wooden cabinet on the left side of the entrance door, and there was blood on the knife. (2) The evidence in the volume reflects that the victim, Mi X, said that Ji X B wore a white T-shirt and pants before going to bed, but the scene investigation records and photos showed that Ji X B was wearing long pants.
In summary, the facts of the public prosecution organ's accusation that defendant Ren X retaliated against the killing of Ji X B due to emotional entanglement are unclear, the doubts and contradictions that exist between the evidence cannot be ruled out, and the existing evidence cannot prove the facts of the crime alleged in the indictment, nor can it completely rule out the possibility of others committing the crime, so the defense opinion that Ren X's defender accuses of putting a calming drug with a calming effect in the coffee and milk tea drunk by the victim Mi X and killing Ji X B with a knife is insufficient, and the public prosecution organ's accusation cannot be established, it is accepted. According to the available evidence, the consequences of the victim's death cannot yet be determined to be the work of Any one, and a separate prosecution may be made after the facts of the case are clarified.
This article is partially reproduced by ding Guangzhou's lawyer team members in the "Eleven Key Points and Points of Defense of Witness Testimony" | 4533 Results of The Second Study of Acquittal Cases. Ding Guangzhou's legal team has a relatively fixed member of eight lawyers, most of whom have experience in the front-line work of the Public Prosecution Law, and the "Forty Years of the Opening of the People's Courts" issued by the General Office of the Supreme People's Court has four major criminal cases in Shenzhen, and the team members have participated in three.