Lawyer

Chapter 386 Change of sentence!

"The prosecutor can respond to the defender's defense opinion." The presiding judge said.

"As for the attempted robbery proposed by the defender, in this case, we believe that this case belongs to the transformational robbery crime, and in the process of transforming from theft to robbery, there is only the problem of whether one crime is transferred to another crime or not. As long as the appellant Shen Hu's behavior meets the conditions for transformation, it constitutes a crime of robbery, and all robberies should be completed. It is accomplished. There is no attempt at all." The inspector said sonorously.

"Next, the defender of the appellant Shen Hu will respond to the prosecutor's opinion." The presiding judge raised his big eyelids and said.

"The presiding judge and the judges: the defender believes that the crime of transformed robbery is also a crime of robbery, and its criminal form should also be determined in accordance with the criminal form of general robbery crimes. Therefore, like general robbery crimes, there should also be completed and attempted forms. The reasons are as follows :
[-]. In theory, the transformational robbery crime can be divided into attempted and accomplished
In this case, since the appellant, Shen Hu, had already carried out theft and other acts, and had the objective conditions of committing violence or threatening violence on the spot (causing minor injuries to the security guards), it was obvious that "the crime had already been committed", so there was no crime in this case. Ready form.

However, transformational robbery needs a certain amount of time and space from the basic criminal behavior (theft) to the implementation of the new behavior (violent resisting arrest), and then to the completion of the new behavior (transforming into robbery and succeeding), which also makes the crime stop or attempted Existence has real possibility.

[-]. Application of the principle of commensurate crime with punishment
The crime of robbery distinguishes between completed and attempted, in order to identify the degree of harm the crime has caused to society, and then determine the corresponding criminal responsibility.

The perpetrators of transformation-type robbery generally only have the intention of stealing, defrauding, and snatching before the nature of the crime is transformed, so the degree of subjective malignancy is relatively small.If no distinction is made between transformational crimes and they are all deemed to have been accomplished, it is very likely that the sentencing will be heavier and violate the principle of appropriate crime and punishment.

In this case, although the appellant caused minor injuries to the victim, he did not obtain property. According to the sentencing standard for general robbery, the appellant should be considered an attempt.

If Chen Hu constitutes the crime of transformational robbery without any distinction as the completed robbery, the sentence will obviously be heavier than the general robbery crime, and it is obvious that the crime and punishment are not suitable.

260. Article [-] of the "Criminal Law" only stipulates the transformation of charges.

Article 260 of the "Criminal Law" only stipulates that whoever commits the crime of theft and uses violence or threatens violence on the spot in order to resist arrest shall be convicted and punished in accordance with the provisions of the crime of robbery.This provision is only a symbol of the transformational robbery crime, and does not deny the division of completed and attempted forms, nor does it stipulate that the transformational robbery crime is unified as an accomplished crime.

The defender believes that the conditions for constituting the crime of transformational robbery and the form of the crime are two different concepts, and the transformation behavior only leads to a change in the nature of the entire behavior, that is, from the crime of theft to the crime of robbery, but it cannot prevent the crime of robbery from being accomplished or attempted. divided.Therefore, after it is determined that the theft has been transformed into a crime of robbery, it is still necessary to distinguish between attempted and accomplished crimes of robbery after transformation.

[-]. Accomplished and attempted standards for transformational robbery

The defender believes that the main difference between transformational robbery and general robbery lies in the sequence of using violence and coercion. Transformational robbery takes possession of property first, while violence is used second. In general robbery, violence is used first and property is seized. In the latter case, there is no substantial difference in the composition of crimes between the two.

According to the provisions of the "Opinions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Robbery and Snatching", whether it is robbing property or causing minor injuries to others, the robbery is completed.

For the crime of transformational robbery, the criteria for determining the completed robbery should be consistent with the above-mentioned criteria, and if neither property was robbed nor caused minor injuries to others, it should be considered an attempted robbery.

In this case, the appellant, Shen Hu, first stole a battery worth RMB 150 and committed violence in order to resist arrest and caused minor injuries to security guards. He should be convicted and punished for the crime of robbery.

Although the appellant had already removed the battery and put it on his electric bicycle, illegally occupying the property, but in the subsequent process of resisting arrest, the appellant Shen Hu did not take the battery with him when he fled the scene, but left it in the At the scene, did not actually get the battery.

The defender believes that in this case, the appellant Shen Hu illegally took possession of the property during the theft, which cannot be considered as the robbed property in the crime of robbery, that is, the completion of the first act does not necessarily lead to the completion of the second act.

In addition, the appellant's resistance to arrest only caused minor injuries to the security guards, and did not cause more than minor injuries.

To sum up, in this case, the appellant neither robbed property nor caused minor injuries to others. The court of first instance found the appellant Shen Hu guilty of robbery, but did not apply the relevant provisions of attempted crimes to reduce the punishment of the appellant. The sentencing is obvious. If there is any inappropriateness, please ask the court to change the judgment according to law.complete! "Fang Yi said.

……

"... this case has been deliberated by the collegial panel and has formed a judgment opinion. In view of the opinions of the prosecution and the defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court makes the following comments:

Shen Hu stole other people's property and used violence on the spot in order to resist arrest. His behavior constituted the crime of robbery and was attempted.

The court of first instance did not inappropriately determine the nature of the crime and the circumstances of the lighter punishment, but it did not determine that the crime of robbery in this case was attempted and should be corrected.The verdict is as follows:
Uphold the conviction of the appellant Shen Hu by the court of first instance, revoke the sentencing judgment, and change Shen Hu's sentence to two years' imprisonment. " said the presiding judge.

The court of first instance sentenced Shen Hu to three years in prison, and Fang Yi suggested that he should be sentenced to one year in prison. As a result, the court of second instance took an intermediary and changed the sentence to two years in prison.

Fang Yi was not surprised when he heard the verdict, because such a verdict was within his expectations, and the court could accept the lawyer's defense opinion, but most of the time the lawyer's sentencing suggestion was just a reference and was rarely adopted by the court.

Shen Guilin in the auditorium watched helplessly as his son was escorted out of the court by the bailiff. The father and son looked at each other with complicated eyes.When Shen Hu's figure disappeared at the gate of the court, Shen Guilin's eyes became moist.

"Lawyer Fang, if I apply for retrial, can my son's sentence be reduced?" Outside the court gate, Shen Guilin looked at Fang Yi and asked.

"Difficult! I personally think it is very difficult. Do you want to apply for retrial?" Fang Yi asked.

"Hey! Forget it, let's forget it since there is no hope!" Shen Guilin sighed.

Shen's family is poor, and he has spent a lot of money hiring a lawyer. Before the trial, he had consulted other lawyers. If he applied for a retrial, he would have to pay a lot of legal fees. Shen Hu has been detained in the detention center for four years. It's been more than a month, and it will come out in more than a year.

Shen Guilin weighed it over and over again, and finally gave up the idea of ​​applying for a retrial to commute his son's sentence.

(End of this chapter)