Criminal Judgment of the People's Court of Weining Yi, Hui and Miao Autonomous County, Guizhou Province
(2019) Q0526 XC No. 207
The public prosecution organ is the People's Procuratorate of Weining Yi, Hui and Miao Autonomous County, Guizhou Province.
The defendant Zhang XX, male, Han nationality, was born in Weining Yi, Hui and Miao Autonomous County, Guizhou Province (hereinafter referred to as "Weining Autonomous County") on March 4, 1998, and lives in Weining Autonomous County. He was detained by the Public Security Bureau of Weining Autonomous County on March 2, 2019 on suspicion of theft, and arrested by the Public Security Bureau of Weining Autonomous County the next day after being approved by XX of Weining Autonomous County on April 8 of the same year. Now he is in custody in the detention center of Weining Autonomous County.
The designated defender is Zhao XX, a lawyer of Guizhou Chihai Law Firm.
The defendant Wan XX, male, Han nationality, was born in Weining Autonomous County, Guizhou Province on March 20, 1970, and lives in Weining Autonomous County. He was detained by the Public Security Bureau of Weining Autonomous County on March 2, 2019 on suspicion of theft, and arrested by the Public Security Bureau of Weining Autonomous County the next day after being approved by XX of Weining Autonomous County on April 8 of the same year. Now he is in custody in the detention center of Weining Autonomous County.
The designated defender is Li X, a lawyer of Guizhou Chihai Law Firm.
XX of Weining Autonomous County accused the defendants Zhang XX and Wan XX of theft with the indictment of Weijian Public Prosecution Criminal Prosecution [2019] No. 1109, and filed a public prosecution to this court. After accepting the case, this court applied the simple collegial system according to law and heard the case in public. XX of Weining Autonomous County appointed a prosecutor, Zhang XX, to appear in court to support the public prosecution, and the defendants, Zhang XX, Wan XX, and their respective defenders, Zhao XX and Li X, appeared in court to participate in the proceedings. The trial of this case has now been concluded.
XX of Weining Autonomous County accused that at about 22:00 on June 13, 2018, the defendant Wan XX found a red Qianjiang two wheeled motorcycle of the victim Xu XX parked at the old house of Chen XX in XX Village, XX Township, Weining Autonomous County, and called the defendant Zhang XX. Later, Zhang XX came and Wan XX and Zhang XX stole the motorcycle.
According to the appraisal of Weining Autonomous County Price Certification Center, the appraised price of Qianjiang two wheeled motorcycle is 3000.00 yuan.
On March 1, 2019, Wan XX voluntarily surrendered to the XX police station of Weining Autonomous County Public Security Bureau, and said that Zhang XX was under control of Xu XX's home. The police of the XX police station rushed to Xu XX's home and summoned Zhang XX to the XX police station for investigation. After arriving at the case, Zhang XX truthfully explained his criminal facts.
On this basis, it is believed that the defendants Zhang XX and Wan XX secretly stole other people's property for the purpose of illegal possession, with a large amount of value. Their acts have violated the provisions of Article 264 of the Criminal Law of the People's Republic of China. The criminal facts are clear, the evidence is reliable and sufficient, and they should be investigated for criminal responsibility as theft. It is also suggested that the defendant Zhang XX be sentenced to 10 months of imprisonment for theft; The defendant will be sentenced to the following punishment of eight months' imprisonment, please sentenced according to law.
The defendants Zhang XX and Wan XX did not dissent from the facts and applicable laws of the prosecution and pleaded guilty in court.
The defender of Zhang XX put forward the following main defense opinions: 1. Zhang XX plays a secondary role in joint crime; 2. The defendant's behavior is minor, truthfully confesses his crime, has confessed, and the stolen property has been recovered; 3. After the case was committed, although the defendant failed to meet the victim's compensation requirements, the defendant has recognized his mistakes and actively made up for them. To sum up, it is recommended that the defendant be sentenced to fixed-term imprisonment of not more than eight months.
The defender of Wan XX put forward the following main defense opinions: 1. The defendant has surrendered himself; 2. The defendant is the first offender; 3. From the perspective of criminal consequences, there is no serious social impact and harmful consequences. In conclusion, we request that the defendant be given a lighter or mitigated punishment according to law.
It was found through trial that on June 13, 2018, the defendant Wan XX found a red Qianjiang two wheeled motorcycle of the victim Xu XX parked at the old house foundation of Chen XX's family in XX Village, XX Township, Weining Autonomous County. At about 22:00 on the same day, Wan XX called his defendant Zhang XX to "have a look" (meaning theft). Zhang XX took another person's motorcycle to the foundation of Chen XX's old house in XX Village, XX Township, Weining Autonomous County, where the crime was committed, and stole and parked a red Qianjiang two wheeled motorcycle of the victim Xu XX at home. Xu XX didn't report the case in time because he thought that the stolen motorcycle might not be recovered. More than ten days later, Xu XX found Zhang XX riding the motorcycle to Geng's house to sell the stolen goods. Both parties discussed privately that Zhang XX and Wan XX should compensate Xu XX 48000.00 yuan. After Zhang XX and Wan XX were unable to compensate, they went out to work in Hebei Province. At the beginning of 2019, Zhang XX and Wan XX returned home. On March 1 of the same year, Xu XX found Zhang XX and Wan XX. Later, Xu XX wanted to take Zhang XX and Wan XX to his home to claim compensation for the stolen motorcycle. Wan XX said that he wanted to change money to compensate Xu XX because he surrendered to the police station of the Weining Autonomous County Public Security Bureau, truthfully confessed his criminal facts, and said that Zhang XX was controlled in Xu XX's home, The police of ×× police station immediately went to Xu XX's home to summon Zhang XX to the police station for investigation. After arriving at the case, Zhang XX truthfully confessed his criminal facts.
According to the appraisal of the Price Certification Center of Weining Autonomous County, Xu XX's stolen Qianjiang brand two wheeled motorcycle is worth 3000.00 yuan.
On March 2, 2019, the Public Security Bureau of Weining Autonomous County detained Xu XX's stolen motorcycle. On June 1 of the same year, the Public Security Bureau of Weining Autonomous County informed him to collect the seized stolen motorcycle, and Xu XX refused to collect the motorcycle on the ground that it had been damaged by Zhang XX and Wan XX.
The above facts are supported by the police reception registration form, the case acceptance registration form, the defendant's statement and defense, the victim's statement, witness testimony, identification records and photos, on-site survey records, seizure list, price appraisal opinions, the process of case arrival, household registration information and other evidence after the court trial and cross examination of both the prosecution and the defense.
In this case, based on the facts charged by the public prosecution organ, combined with the evidence adducing, cross examination and mutual debate between the prosecution and the defense, the Court makes the following judgments:
The defense opinion of the defender of the defendant Zhang XX that "Zhang XX plays a secondary and primary role in the joint crime", although the criminal intent of the theft crime is really put forward by Wan XX, Zhang XX is proactive in the theft crime, and the act of selling stolen goods was carried out by Zhang XX. Now there is no evidence to prove that Zhang XX plays a secondary and primary role in the crime, and this court will not accept it.
With regard to the defense opinion of the defendant Zhang XX that the defendant's behavior was minor, Zhang XX jointly participated in the theft. The theft value was large, and his behavior had violated the criminal law and constituted a crime. Therefore, the defense opinion was unfounded in law, and the court refused to accept it.
The rest of the defense opinions put forward by the defender Zhang XX, the defendant, are consistent with the facts and laws found out, and the Court adopts them.
The defense opinions put forward by the defender of the defendant Wan XX are in line with the facts and legal provisions of the case, and the Court adopts them.
The Court believes that the defendants Zhang XX and Wan XX jointly stole others' property in secret for the purpose of illegal possession, with a large amount of value. Their behavior has violated the criminal law and constitutes a crime of theft, which should be punished. Accordingly, the public prosecution organ accused Zhang XX and Wan XX of theft. The facts are clear, the evidence is conclusive, and the charges are confirmed by the court. Wan XX voluntarily surrendered to the case and truthfully confessed his criminal facts after arriving at the case, which is voluntary surrender and can be given a lighter punishment according to law; After arriving at the case, Zhang XX truthfully confesses his criminal facts, and may be given a lighter punishment at his discretion. Zhang XX and Wan XX plead guilty in court, and the stolen property of the victim Xu XX has been recovered, Zhang XX and Wan XX can be given a lighter punishment as appropriate. Accordingly, the sentencing suggestions put forward by the public prosecution organ conform to the legal provisions, and the Court adopts them. According to the circumstances of Zhang XX and Wan XX's crimes, and in accordance with the provisions of Article 264, the first paragraph of Article 25, the first and third paragraphs of Article 67, Article 52 and Article 53 of the Criminal Law of the People's Republic of China, the judgment is as follows:
1、 The defendant Zhang XX was sentenced to eight months' imprisonment and a fine of 1500 yuan for theft.
(The term of imprisonment shall be calculated from the date of execution of the judgment. If the person is detained before the execution of the judgment, one day of detention shall be converted into one day of the term of imprisonment. That is, from March 2, 2019 to November 1, 2019, the penalty shall be paid within three months after the judgment comes into effect.)
2、 The defendant Zhang XX was sentenced to seven months' imprisonment and a fine of 1500 yuan for theft.
(The term of imprisonment shall be calculated from the date of execution of the judgment. If the person is detained before the execution of the judgment, one day of detention shall be converted into one day of the term of imprisonment. That is, from March 2, 2019 to October 1, 2019, the penalty shall be paid within three months after the judgment comes into effect.)
If you do not accept this judgment, you can appeal through this court or directly to the Intermediate People's Court of Bijie City, Guizhou Province within ten days from the second day of receiving the judgment. If you appeal in writing, you should submit one original and two copies of the appeal petition.
Chief Judge Ma Yue
Judge Zhang Sen
People's juror Zhu Xiyu
July 24, 2019
Clerk Xiong XX
