Lawyer

Chapter 552 Not a person inside or outside

"The defender of the appellant Shi Ling made a statement," said the presiding judge.

"The presiding judge, the judge: the defender believes that the appellant Shi Ling used blackmail for the purpose of illegal possession and forcibly extorted 10 yuan from the victim, and got 5 yuan. His behavior did not constitute the crime of robbery, but constituted the crime of extortion. .The reason is as follows:
Both robbery and extortion can use threats to illegally occupy other people's property.However, the on-the-spot threat of the threat and the on-the-spot acquisition of property in the process of robbery are not available in extortion.

[-]. The immediacy of the threat

1. The crime of robbery is an act in which the perpetrator directly commits violent means to rob the robbed person.The threat of extortion can be face-to-face or non-face-to-face, such as phone calls, WeChat, etc.

In this case, the appellant Shi Ling threatened the victim and extorted money on the grounds that the victim had an improper relationship with Jiang Yu.

2. The crime of robbery is to obtain the victim's property on the spot, so in order to exclude the victim's possible resistance, the perpetrator must threaten the victim with violence that directly violates the victim's body, forcing the victim to hand over the property on the spot.

The threat of extortion mostly threatens the victim by destroying the reputation and exposing privacy.Even if there is a threat of violence, the threat of violence is generally not directed at the victim, but at the relatives and friends of the victim, in order to achieve the purpose of blackmailing the victim.The threat or coercion of extortion is not immediate, and generally threatens the victim to perform a certain behavior at a certain time in the future.

In this case, the appellant did not inflict physical violence on the victim during the process of extorting money.Moreover, the evidence in the case shows that the victim himself was afraid that the derailment would be made public by the appellant, so he proposed to give the appellant a certain amount of financial compensation.

3. The threat of the crime of robbery is imminent, and the victim has no time to consider and choose except for delivering the property on the spot.The threat and coercion of the crime of extortion are not as urgent as the crime of robbery, and the victim still has some room for consideration and choice in deciding whether to hand over the property.

In this case, the victim proposed to pay money to the appellant to solve the affair. The appellant agreed to the victim's suggestion, and the two parties also discussed how much to pay. It can be seen that the appellant's extortion of money was not urgent.

[-]. Immediateness of obtaining money

The on-the-spot nature of obtaining money is also an important difference between the two crimes.In the crime of robbery, the perpetrator's behavior, highlighting the word "rob", can only obtain money on the spot, and the amount of money stolen is random, it may be one yuan or two yuan, or it may be one hundred or two hundred.

In the process of extortion, the perpetrator generally obtains the money afterwards, and there is often a certain time interval between the extortion act and the acquisition of the money, and before the extortion act, the perpetrator will have a certain amount of money extorted. estimate.

In this case, the appellant did not obtain the money on the spot, and the two parties negotiated on the amount of extorted money, which shows that the appellant did not have the intention of robbing.

To sum up, the defender believes that the appellant's behavior does not constitute the crime of robbery, but constitutes the crime of extortion.In view of the fact that the victim was at fault for the occurrence of the case and the appellant showed remorse, the defender suggested that the court change the sentence of the appellant to probation.complete. "Fang Yi said.

"Now it's up to the prosecutor to speak." The presiding judge said.

"Presiding judge and judge: We believe that the appellant used violent means to rob money for the purpose of illegal possession, which constituted a crime of robbery. The facts found by the court of first instance were clear and the application of the law was correct. We request the court to reject the appellant's appeal in accordance with the law." said the inspector.

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

"Okay, presiding judge. Regarding the defender's defense, we mainly express the following points:

In this case, the appellant stalked and broke into the room that his wife and the victim shared in the hotel, witnessed his wife and the victim together, and then violently beat the victim.

Under the violent coercion of the appellant, the victim was forced to agree to pay 10 yuan in compensation to the appellant.The appellant's behavior met the constitutive elements of the crime of robbery, so he should be convicted of the crime of robbery.complete. " said the inspector.

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

"Based on the prosecutor's defense opinions and responses, the defender issued the following defense opinions:
The defender believed that after the appellant broke into the hotel room, he saw his wife cheating on the victim, and then committed violence against the victim.

Regarding the appellant's violence, the defender believes that it should be understood as Shi Ling's pure injury based on momentary anger, not violence for the purpose of robbery, which is also in line with common sense.It cannot be simply linked to his violent behavior and subsequent extortion.

Afterwards, in order to prevent the scandal from being made public and to get out as soon as possible, the victim offered to compensate Shi Ling with money to settle the matter.At this time, Shi Ling had the intention to take the opportunity to blackmail him for money.

The victim had the intention of 'breaking the money to eliminate the disaster', and the appellant had the purpose of 'taking the opportunity to blackmail', and the two hit it off, so the appellant's extortion of money had a reason.Shi Ling's extortion of the victim's money is an opportunity to threaten.

To sum up, although Shi Ling committed violent acts in this case, his means of extorting money was not using violence or threatening violence, but extorting by taking advantage of the victim’s affair with Jiang Yu, and not all of the money he obtained was Obtained on the spot, therefore, does not meet the constitution of robbery.Should be convicted and punished for extortion.complete. "Fang Yi said.

……

After the trial, after deliberation by the collegial panel, the presiding judge pronounced the verdict in court.

The collegial panel held that the appellant, Shi Ling, used threats and coercion for the purpose of illegal possession, and forcibly extorted 10 yuan from others, but actually obtained 5 yuan.His behavior has constituted the crime of extortion, and the amount is huge.

The original judgment was inappropriate for appellant Shi Ling's conviction and sentencing for the crime of robbery, and the sentence should be changed.Finally, the sentence was changed: [-]. The District People's Court's criminal judgment of the first instance in this case was revoked; [-]. The appellant Shi Ling committed the crime of extortion and was sentenced to five years in prison.

The sentence was changed from 12 years to five years. Although Shi Ling was still upset, he could only accept it. After the sentence was pronounced, he thought about how to reduce his sentence in the prison and get out of prison as soon as possible.

As for his wife, Jiang Yu, as early as when he was sentenced to 12 years in prison by the court of first instance, Jiang Yu filed for divorce through a lawyer.She could no longer live in the Shi family. Shi Ling was sentenced because of her. Not only the Shi family couldn't tolerate her, but her natal family was also extremely dissatisfied with her, because many of her natal family depended on the Shi family for food.

Jiang Yu is now Zhu Bajie looking in the mirror, not a human being inside and out.

(End of this chapter)