In the first instance, Zhang San was convicted of intentional homicide and illegal possession of a gun and sentenced to death with a two-year suspension. After full defense by lawyers Liu Bin and Wang Bingbing, the court of second instance sentenced Zhang Ren to life imprisonment and deprived of political rights for life on charges of intentional homicide and illegal possession of guns.

Brief introduction of the case

In May 2002, Zhang San's father contracted an orchard in a village. On the afternoon of May 14, 2003, Zhang San went up the mountain to shoot pheasants with a homemade soil gun. While patrolling his orchard, he found someone stealing bananas in the orchard. Zhang San shouted to catch the thief, and the victim Li Si (a pseudonym, the same below) fled. Zhang San ran after him with a gun. During the chase, Zhang San shot at the back of the victim Li Si, causing the victim Li Si to die on the spot. Zhang San absconded for 17 years, and then Zhang San surrendered himself to the public security organ on February 3, 2020.

The First Intermediate People's Court made a first-instance judgment: Zhang San committed the crime of intentional homicide and illegal possession of guns, and was punished for several crimes. Decided to execute the death penalty, suspended for two years, deprived of political rights for life.

Zhang San refused to accept the judgment of the first instance and filed an appeal. The second instance entrusted a lawyer to defend him.

Focus of controversy

1. Does Zhang San constitute justifiable defense?

2. Is it reasonable to sentence Zhang San to a suspended execution in the first instance?

Defense opinion

(1) In this case, Zhang San's unlawful infringement exists objectively, and Zhang San's behavior against the other party belongs to the crime of injury in the sense of criminal law, and Zhang San's shooting back meets the prerequisite of special defense.

According to the provisions of the third paragraph of Article 20 of the Criminal Law, taking defensive actions against violent crimes such as assault, murder, robbery, rape and kidnapping that seriously endanger personal safety, resulting in casualties of illegal infringers, is not excessive defense and does not bear criminal responsibility. According to "Guiding Opinions of the Supreme People's Court, Ministry of Public Security, the Supreme People's Procuratorate on Applying the Self-defense System according to Law": "15. The following acts should be considered as "attacks": (1) using deadly weapons, which seriously endangers the personal safety of others; Although it has not caused actual damage, it has caused serious and imminent danger to personal safety, which can be considered as "injury crime".

Specific to this case, Zhang San didn't know the victim before the incident, and he had no grievances with the victim. The cause of this case is that the victim chopped bananas. When Zhang San was chasing the victim, the victim came back with a hook knife to cut Zhang San. The testimony of two other witnesses can prove the fact that the victim held a knife. Among them, witness Wang mentioned: "There is a mountain-breaking knife beside him", and witness Lan Rusheng mentioned: "At that time, I saw a hook knife on the ground near the right hand of the deceased Pu Mingyuan, but I didn't see the young man shoot Pu Mingyuan with my own eyes."

The victim, armed with a deadly weapon-a hook knife, rushed at Zhang San at a distance of only two to three meters, with the intention of chopping at Zhang San. Although the murder committed by the victim did not cause actual damage to Zhang San, his behavior has already posed a real threat to Zhang San's health and even his life. In this case, the victim's act of stabbing Zhang San with a knife conforms to the determination of intentional homicide in the legitimate defense opinion of the Supreme Court. Countering illegal violence is an instinctive reaction of human beings. In this critical situation, the victim's behavior is likely to lead to serious injury or death of Zhang San. Therefore, Zhang San's shooting defense against the victim who is committing a crime is completely in line with the prerequisite of legitimate defense.

(2) Zhang San shot back at the victim for defensive purposes before the victim's aggression ended, and his behavior should constitute justifiable defense.

1. When Zhang San shot back, the victim's attack was not over yet.

Zhang San shot in self-defense when the victim rushed over with a knife and the illegal infringement was in progress. The victim tried to cut Zhang San with a knife, and Zhang San warned the victim not to come over with a gun, but the victim continued to rush over and Zhang Sanfang shot to avoid illegal infringement. Until Zhang San shot, the victim's illegal infringement was still not over.

2. It can be inferred from the appraisal that the victim should have turned around at the moment when Zhang San shot.

Regarding the admissibility of evidence, the evidence in this case has not been identified by criminal science and technology. * * * (200*) can also prove that Zhang San didn't see the victim turn around, and the victim turned around at the moment of shooting. In this appraisal, we can see that the victim was shot in the back and had a shallow contusion scar under the left earlobe. In fact, as can be seen from photo 5, there is no difference in the size of the gunshot wound and scar between the injured part and the back, and it should be a wound caused by shooting. Although the appraisal book records that there is no injury in the front neck, it is obvious from photo 5 that there is a bullet-shaped contusion wound in the left front neck, but the appraisal book does not record the injury in detail. Photo 4 shows that the victim was shot in two or three places in front of the left side of his waist and abdomen, but it was not recorded in the appraisal book. If Zhang San shot in the back, it is impossible for his body to be hit in the side or in front.

3. Zhang San has been steadily confessing the fact that the victim committed the crime, and the victim also has the realistic possibility of committing the crime. Zhang San's confession should be accepted as self-defense.

The case happened on a field path overgrown with weeds. Although there are no witnesses, Zhang San's confession is stable and can be mutually confirmed with other evidence. His confession should be accepted. Defenders have also applied to the court for polygraph testing to further verify the authenticity of Zhang San's statement. During the confrontation between Zhang San and the victim, Zhang San tried to warn the victim to stop the crime, but the victim did not listen to dissuasion and still rushed over with a knife. Zhang Sanfang fought back. In this sudden situation, Zhang San could not be demanding to see whether the victim turned and fled, let alone demanding to take back the trigger that the victim had pulled when he turned instantly. Zhang San can't make an accurate and quick judgment on whether the victim continues to commit illegal infringement, and should accept it when Zhang San makes a move. Therefore, Zhang San shot back at the victim when committing illegal infringement, and Zhang San's behavior should constitute self-defense.

(3) The investigation organ induced confession during interrogation, and the interrogation record was inconsistent with the interrogation video, and Zhang San's confession was not recorded truthfully. There is no corresponding audio and video recording in the transcript of the fourth interrogation, which is illegal evidence and should be excluded.

It is embodied in the interrogation video of the third interrogation on February 7, 2020, 65438:

1. induced confession by public security organs

The police repeatedly pressed Zhang three times. Please remember whether he was facing you or facing you when you shot him. Zhang San replied, I shot at that time and fell down when I saw him. I don't know. After that, the trial was interrupted for about 2 minutes, and then the police repeatedly put pressure on Zhang San on this issue twice. Obviously, there is a situation of inducing confession.

2. The transcript did not completely record Zhang San's answer.

The policeman asked, Do you know who you killed? A: No. He came to our banana garden to steal bananas. Video actual answer: I didn't know at the time. He rushed over there. I dare not shoot. I don't know him. He cut me with a knife. He came to our banana garden to steal bananas.

3. Zhang San's statement was omitted from the transcript.

I missed the following: I also pulled the trigger. I'm afraid of him, too. I don't want him to rush over and turn around. I couldn't help it then. A second later, he also turned around.

The transcript completely distorted Zhang San's statement.

The policeman asked: Which part of the man's body did you photograph? Answer: It should be his back. He fell to the ground after I shot him. The actual answer of the video: I didn't know it was my back when I hit it, and that's it (the client raised his gun and bowed his head to be shooting positions), so I got down.

In addition, the fourth interrogation on June 5438+February 65438+February 07, 2020 did not have the corresponding interrogation video, and the evidence was illegal and should be excluded.

(4) In this case, there is no evidence that Zhang San does not have the possibility of self-defense. If the fact that the victim stabbed Zhang San with a knife is confirmed, the prosecution shall provide evidence according to law. If the evidence cannot lead to doubts about the facts, the facts in favor of the defendant shall be stated.

Based on the principle of presumption of innocence, the prosecution must provide evidence to prove that the defendant has committed a specific criminal act, and the defendant has no obligation to prove his innocence. However, the prosecution has always stated to Zhang San that the favorable fact that the victim cut him with a knife was not mentioned in the indictment. The judgment of the first instance only mentioned the sentence "the fact that the victim determined to cut Zhang San with a knife in the chase", but did not analyze whether Zhang San had the motive of intentional homicide, nor did he analyze the actual situation and possible situations at that time, completely ignoring the actual situation when Zhang San committed the crime.

It is clear that there were no witnesses at the time of the crime, and the witnesses in this case proved the scene and afterwards of the shooting. In the case of the victim's death, the conflict during the crime is mainly confirmed by Zhang San's own confession, on-site inspection and physical evidence. When the investigation agency rushed to the scene, the scene was basically destroyed by the onlookers. At the same time, when investigating the scene, the investigation organ did not investigate and analyze the traces on the ground, whether there was a fight, etc., and even omitted the key material evidence of the hook knife next to the victim mentioned by the witness. In this case, the fact that the case is in doubt is caused by gross negligence and defects in investigation and evidence collection. If the victim was shot in the back only in the appraisal conclusion, that is to say, Zhang San was found to have no need for defense at that time, and the event was inferred from the damage result, which is equivalent to presumption of Zhang San's guilt and also violates the principle of presumption of innocence in China's criminal law.

Therefore, the prosecution should fully investigate and verify the fact that the victim stabbed Zhang San with a knife and provide evidence for the facts. Although the existing evidence in this case cannot completely prove that Zhang San had justifiable defense, there is no evidence to prove that Zhang San did not have the possibility of justifiable defense at that time. Because the prosecution's evidence cannot lead to doubts about the facts of this case, a reasonable explanation should be made in favor of the defendant. The court cannot rashly dismiss the fact that the victim cut Zhang San with a knife while chasing because of insufficient evidence.

(5) To take a step back, even if Zhang San's defensive shooting behavior exceeds the necessary limit, it is also excessive defense and should be mitigated or exempted from punishment as appropriate. Moreover, Zhang San has many circumstances that can mitigate or mitigate the punishment and should be given a lighter punishment.

First, it has a plot of surrender. After arriving at the case, it can be confirmed that Zhang San surrendered voluntarily. After surrendering, truthfully confessing the facts of the case should be considered as surrender, and Zhang San should be given a lighter or mitigated punishment. Second, the other party has a serious fault. Even if it is suspected of constituting a crime, even if the court finally does not find that Zhang San's behavior belongs to self-defense, it should at least find that the victim has a serious fault and give Zhang San a lighter punishment. Third, Zhang San pleaded guilty voluntarily and showed obvious repentance. Can be given a lighter punishment as appropriate.

To sum up, Zhang San's first-instance judgment constitutes a qualitative error in the crime of intentional homicide, and Zhang San's behavior belongs to special defense and should not bear criminal responsibility. Even if it is considered to constitute a crime, there are still some mitigating or lighter punishment circumstances. Zhang San should be given a lighter punishment. The facts of the first-instance judgment are unclear, the applicable law is wrong, and the sentence is too high. The judgment of second instance should be revised according to law.

Judgement result

1. Maintain the second item of criminal judgment (202*) of No.1 Intermediate People's Court, that is, confiscate and destroy a single-tube powder gun transferred with the case according to law.

2. The first item of criminal judgment (202*) of No.1 Intermediate People's Court was revoked, that is, the defendant Zhang San was guilty of intentional homicide, sentenced to death, suspended for two years, and deprived of political rights for life; He was convicted of illegal possession of firearms, sentenced to one year's imprisonment, combined with several crimes, decided to execute the death penalty, suspended for two years and deprived of political rights for life.

3. Appellant Zhang San was convicted of intentional homicide, sentenced to life imprisonment and deprived of political rights for life; He was convicted of illegal possession of firearms, sentenced to one year in prison, combined with several crimes, and decided to execute life imprisonment and deprive him of political rights for life.

case analysis

This case was a major intentional homicide 17 years ago. In view of the backward investigation technology at the time of the incident, Zhang San was unable to obtain supplementary evidence before he was brought to justice, so it was difficult to defend the case. Zhang San stated that the victim rushed over with a knife before shooting, and his shooting was based on defense. There is no evidence to prove this fact except his own statement. Zhang San once made a statement against himself, and Zhang San admitted to reading it many times in the transcript. Based on the above difficulties, lawyers Liu Bin and Wang Bingbing, as Zhang San's defense lawyers, made the following defense work for Zhang San's efforts to change his sentence and reduce his sentence:

(1) Carefully review the file and sort out the doubtful points of evidence.

In the second trial, after careful and repeated reading, lawyers Liu Bin and Wang Bingbing found that the court of first instance had omissions in determining the facts of the case, and did not recognize the key facts such as Zhang San's statement that the victim was killed and Zhang San's confrontation with the victim. The photos in the Criminal Science and Technology Appraisal Report reflect that the victim was shot not only in the back, but also in the front and side of his body, which can prove the fact that the victim turned and fled at the moment when Zhang San shot. In addition, the video of Zhang San being interrogated by the police is quite different from the interrogation transcript. What is not truthfully recorded in the transcript is precisely Zhang San's statement about whether he saw the victim turn around when shooting. Therefore, lawyers Liu Bin and Wang Bingbing submitted detailed written defense opinions to the court of second instance on the above doubts.

(2) Be good at using the principle of never suspecting a crime, and emphasize the burden of proof for Zhang San's intentional homicide.

During the trial, the prosecution and the defense had a heated debate on whether Zhang San had defensive facts. Lawyers Liu Bin and Wang Bingbing put forward doubts in this case closely around the principle that doubts are beneficial to the defendant, and further emphasized that the prosecution should bear the burden of proof. The specific reason is that Zhang San has no obligation to prove his innocence, and there were no witnesses at the time of the incident. In the case of the victim's death, Zhang San's statement, on-site inspection and expert opinion are the key evidence for the conviction of this case. According to the witness's statement, many people were watching before the police arrived at the scene, and the victim's wife had the victim carried back. The scene environment has already been destroyed by onlookers. As for the on-site inspection on record, the police only took photos of the general environment, ignoring many details, including taking footprints, examining and analyzing ground traces, and unable to verify whether Zhang San had a confrontation or fight with the victim. In addition, the police also missed the key material evidence, and the hook knife mentioned by the witness many times was not seized as material evidence in this case. Therefore, the suspicion of facts in this case is caused by the flaws and gross negligence of the public security in obtaining evidence, and the prosecution has no evidence to show that Zhang San does not have the possibility of defense. Based on the principle that doubt is beneficial to the defendant, Zhang San's story should be accepted.

(three) actively communicate with the judge and persuade the judge to reach a consensus on the facts and evidence of the case.

During the trial of the second instance, lawyers Liu Bin and Wang Bingbing, relying on their professional skills and special sensitivity to criminal cases, found doubts and flaws in the case in time, made full use of their right of appeal and experience to communicate with the judge repeatedly, submitted a lie detector application to the judge, and applied for a lie detector test on Zhang San, so as to restore all the facts of the case. Although the collegial panel finally disagreed with Zhang San's polygraph, in the judgment of the second instance, the judge still recognized the key fact that "Zhang San confronted the victim briefly at close range, Zhang San held a gun, the victim held a knife, and Zhang San could not control himself because of nervousness". In the end, the court of second instance adopted the lawyer's opinion that the sentence was too heavy and changed Zhang San's sentence from death to life imprisonment.

conclusion and suggestion

In criminal defense, specialty is the most important, and details are the most important. Lawyers should pay more attention to the careful study of evidence and carefully examine every piece of evidence in the case. In the case of Zhang San's intentional homicide, although the second-instance judgment did not adopt the lawyer's defense view that Zhang San constituted self-defense, the court of second instance still sentenced Zhang San to life imprisonment without adding mitigating circumstances, which is enough to reflect that the judge of second instance definitely questioned whether Zhang San was a self-defense homicide.