1. Brief facts of the case
The Public Prosecutor's Office alleges:
(1) Malign forces crime group crimes
Between 2013 and 2014, Ma Xjie, Ma Xfeng, Sha Xlei, Hou Xguang, Ma Xlin, Ma X, Ma Xjun, Ma Xchuang, Ma Xcai, and Ma Xyong organized multiple criminal activities such as kidnapping, assembling crowds to attack state organs, and illegal detention in a certain county and surrounding counties and districts, forming a relatively fixed criminal organization and causing a vile social impact among the masses in the surrounding counties and districts. Since the formation of Ma's malign force criminal group, there have been 7 organized criminal activities of various types by means of violence, threats, and other means. The specific facts of the crime are as follows:
1. Kidnapping and illegal detention
On the night of February 7, 2014, Ma, Ma Xjie, Ma Xfeng, Hou Xguang, and others went to the homes of Zhu X4, a villager in Wanhe Village, to participate in gambling, during which Ma had an argument with Zhu X 1 and Zhu X 3, villagers who participated in gambling, and beat each other, causing injuries to Zhu X 1 and Ma X Jie. After the two sides were persuaded to leave, Ma Xfeng, and others gathered Ma Xlin, Ma Xchuang, Ma Xjun, Ma Xshun, Ma Xyong, Sha Xlei, Zhang Xjing and many others to go to Wan Mounei and Zhu X1's house to find Zhu Mou1 to take revenge, because Zhu Mou1 was hiding unsuccessfully. When Wan failed to find Zhu X 1, Ma X and others abducted Zhu X 4 and Zhu X 5, who were involved in gambling together, and successively restricted their personal freedom in the Hou X 1 Health Center and the urban area. At about 8 o'clock on February 8, Ma Xjie, Hou Xguang, Ma Xfeng, Sha Xlei, Ma Xshun and others drove a vehicle near the west gate of the XX community to stop the vehicle in which Zhu X 1 was riding, beat Zhu X 1 and fellow car members Zhu X 3 and Zhu X 2, and abducted the three of them to the Hou X 1 Health Center. Ma and others asked Zhu X 5 and Zhu X 2 to leave, and continued to detain Zhu X 1, Zhu X 3, and Zhu X 4. At about 20 o'clock on February 8, the families of Zhu Mou4 and Zhu Mou1 were forced to raise 100,000 yuan in cash and hand it over to Ma, Ma Xlin, and Ma Xjie and were allowed to leave. During this period, Ma and others repeatedly beat and abused the above-mentioned victims.
2 Kidnapping
1) One afternoon in August 2014, the victim Wang X 2 and others had an argument with Ma X Xian, Hou X Guang, Ma X Cai, and Ma X Yong (handled in a separate case) while singing in a certain KTV, and Ma X Yong used a beer bottle to injure his leg, and then Ma X Yong gathered Ma X, Ma X Chuang, Ma X Jun, Ma X Shun, Sha X Lei, Ma X Feng and others to a certain KTV to make trouble, beat Wang X 2 and others, and then abducted Wang X 2 to the Hou X 1 Health Center in X County to be detained and detained. Until about 1 o'clock in the morning, Wang 2 and his friends were forced to hand over 40,000 yuan in cash to Ma and were allowed to leave.
2) On the evening of October 31, 2014, Zhao Xchao, Ma Xchuang and others drove to refuel at the gas station in the XX high-speed parking area. Because Ma Xchuang was smoking in the gas area, he was dissuaded by Liu Mou4, a gas station staff, and the two parties had an argument. Later, Zhao Xchao and Ma Xchuang beat ** gathered Ma, Ma Xjie, Ma Xfeng, Wei Xlian and others, and beat the gas station staff Wang 5 Chao, Liu 4 Cheng, and Zhang 1, and Wang 5 Chao was knocked down in the hall, and Ma X and Ma X Jie instructed Wei X Lian to lie down and pretend to be injured. Ma and others abducted Zhang X 1 to the county hospital for detention when they failed to negotiate with the other party, and in the county hospital, Ma X and Ma Xjie arranged for Wei X to practice self-harm, and on this ground, they demanded 8 from the gas station in the 3 parking areaAfter 50,000 yuan, let Zhang 1 leave. Ma Xchuang received 10,000 yuan from Ma 3 for breaking his mobile phone, and Wei Xlian received 20,000 yuan from Ma for causing injury.
3. The crime of assembling a crowd to attack state organs
At about 22 o'clock on July 21, 2014, Jin Xzhe and Jin Xzhe had a dispute with Song Mou5 and others at the door of a KTV and were injured. After the police at the police station were dispatched, the suspect Song Mou5 was summoned to the police station for investigation and handling. During the period when the police at the police station handled it in accordance with the law, Jin Xzhe and Jin Xzhen gathered dozens of people, including Jin Xming, Ma X, Ma Xlin, Ma Xjun, Ma Xxian, Ma Xcai, Hou Xguang, Ma Xfeng, and Ma Xjie, and under the leadership of Jin Xming and Ma, they forcibly entered the courtyard of the police station, abused, tore and pestered the police, snatched the police's guns, searched for Song X 5 house by house in the police station's case-handling work area, and forcibly took Song X 5 to the Hou X 1 police station of the Public Security Bureau despite the people's obstruction, making it impossible for the public security organs to carry out the case-handling work. Seriously undermining the authority and image of public security organs.
4. Unlawful detention
1) One day in January 2013, Ma led Ma Xyong, Sha Xlei, Ma Xjie, Ma Xfeng and others to beat Guo X 3 in a hotel, and then forcibly took Guo X 3 to Hou X 1 Ma's home to restrict his personal freedom for two days, during which Guo X 3 was beaten.
2) At 23:00 on the night of October 8, 2014, Ma Xguang, Ma Xchuang, Sha Xlei, Ma Xjun, Ma Xshun, Ma Xcai, Wei Xlian, Sha Xdong, and Zhang Xjing, together with others, beat the victims Guo X 1 and Zhao X 1 in the XX Hotel and forcibly dragged them to room 4019 of the XX Hotel to take care of them, during which Guo X 1 and Zhao X 1 were beaten again. At about 5 a.m. the next day, the victims, Guo X 1 and Zhao X 1, were released. According to the appraisal of the Criminal Science and Technology Office of the Public Security Bureau, the degree of physical injuries of the victims Guo X 1 and Zhao X 1 constituted minor injuries.
5 Trespass into a dwelling
On February 9, 2013, in order to demand high-interest debts from Wang X 1, Ma X co-authored the home of Wang X Lei, Ma X Feng, Ma X Shun, Ma X Jie, Ma X Yong and many others, and randomly beat and insulted Wang X 1 and his pregnant wife Wang X 7 at Wang X 1's home, and damaged Wang X 1's property, and then left after being criticized and stopped by the public security organs.
(2) Other crimes
1 Kidnapping
At about 8 o'clock in the morning on November 3, 2014, villager Lu XX1 (sentenced) gathered more than 30 people to the XX community construction site to make trouble, Ma Xcai and Ma Xjun teamed up with Lu XX1 and others to forcibly take away the victims Xu XX1 and Hao, and detained the two in Lu XX1's home, county hospital, Hou XX1 XX Hotel and other places, during which they repeatedly beat the second victim and demanded money from the victim's family, until about 21:00 on November 5, 2014, because the matter was revealed, and under pressure, Xu XX1 and Hao was sent to Hou 1 police station. After evaluation, the degree of victim Xu X 1's body injury constituted a slight injury, and the degree of victim Hao's body injury did not constitute a slight injury.
2 Picking quarrels and provoking trouble
1) From 2015 to 2016, Ma summoned Ma Xchuang, Wang Xjie, Ma Xqing, Sha Xzhe and others to use intimidation and abuse methods such as gathering crowds to build momentum and harassment to go to the power company many times to collect debts from 2 Jie, which seriously affected the company's production and operation.
2) One day in October 2016, in order to collect debts, Ma summoned Wang Xjie, Ma Xqing, and Sha Xzhe to go to Liu's 2's house to collect debts from Liu 2 by gathering crowds to build momentum and invade the house to move in.
3) In May 2017, in the name of demanding debts, Ma arranged for Wang Xjie, Ma Xqing, Sha Xzhe and others to go to Guo X 2's house many times to ask for usurious debts from X 1 and his family by hanging banners, intimidation, insults, etc., and asked for two boxes of Moutai and one box of Wuliangye liquor, causing Guo X 2 and his family to live in fear for a long time, and the circumstances were heinous.
4) One day at the beginning of 2016, in the process of recovering debts from Liu 1, Ma put Liu 1's car worth 2560,000 yuan of tobacco and alcohol were forcibly occupied.
To sum up, Ma committed 3 cases of kidnapping, 1 crime of assembling a crowd to attack state organs, 4 crimes of picking quarrels and provoking trouble, 2 crimes of illegal detention, and 1 crime of illegal invasion of residences.
II,Defense Strategy
After receiving the family's entrustment, the lawyer promptly went to the detention center to meet with the client, the first defendant in the case, Ma, and learned from him in detail what had happened.
These include:Whether Ma committed kidnapping, illegal detention, intentional injury, storming state organs, and illegally invading other people's homes. Because there are many things involved, Ma did not explain it in detail, but can only give a general idea. Specific and detailed case information can only be grasped after the procuratorate reviews the case file for prosecution and the lawyer reads the case file. During the review and prosecution stage, after the lawyer read the case file, he grasped the circumstances of the case, and the procuratorate's indictment also listed Ma's criminal conductOn the basis of the evidence in the case, the following defense opinions are put forward:
1.Ma did not subjectively have the intent to illegally take possession of other people's property, objectively did not commit acts of violent hijacking or threatening the victim, nor did he threaten others to pay ransom under the threat of the victim's life and safety, nor did he embezzle any of the victim's property, so it does not constitute the crime of kidnapping. The three kidnapping cases alleged in the indictment were all caused by civil disputes, and the degree of physical restraint imposed on the victim by Ma and others' conduct did not meet the standard of kidnapping, during which the victim's relatives and friends took the initiative to mediate with an intermediary, and the cases all occurred in public places, which did not meet the characteristics of the crime of kidnapping.
2.Ma did not lead others to forcibly break into the police station, nor did he cause any losses, and the normal work of the state organs was still carried out, and his conduct did not constitute the crime of assembling a crowd to storm the state organs.
3.Ma X illegally detained Guo X 3 because Guo X 3 owed money and did not pay it back, his subjective malice and social harm were not great, and Guo X 3 was not beaten during the detention period, and Ma X should be given a lighter punishment.
4.Ma did not participate in the illegal detention of Guo X 1 and Zhao X 1, and the alleged fact does not exist.
5.Ma's visit to the victim Wang's home in order to collect debts is an act of debt collection and an act of exercising civil rights, and this cause blocks the establishment of the crime.
6.Ma demanded a debt from 2 Jie, and Liu 3 did not report to the police at that time, and there was no pre-procedure for the relevant departments to stop it, so the case should be a general civil dispute.
7.After being criticized and stopped by the public security organs, Ma stopped the acts he carried out, and this case occurred in a private place, which is an administrative violation and does not constitute the crime of picking quarrels and provoking trouble.
8.Wang Xjie, Sha Xzhe, and Ma Xqing demanded debts from a certain 1 right, but they were not instructed by Ma, and this case has nothing to do with Ma.
9.The statement of the victim Liu X 1 contradicts the testimony of the witness Lu X and cannot prove that Ma X forcibly took possession of Liu X 1 Value 2560,000 yuan of property.
10.The whole case of this case does not constitute a crime committed by malign forces, and Ma XX3 is not the ringleader of the criminal group. In this case, each of them did not form a criminal gang, did not use violence, threats or other means to carry out criminal activities, did not carry out illegal and criminal activities on a regular basis (more than three times), and did not reach the level of disrupting economic and social order and causing a relatively bad impact.
Three,Case outcome
The court held that in response to the defendant's defense and the defender's defense opinions, this court judged as follows:
1. Ma's conduct met the characteristics of the crime of kidnapping and constituting the crime of kidnapping by violent means for the purpose of illegal possession and soliciting property from the victim's relatives or unit. Although the three kidnapping crimes committed by Ma were caused by civil disputes, Ma took advantage of the topic to beat and kidnap many people on the grounds that Ma Xjie was injured in the "Wanhe" incident, and demanded a high ransom from the other party; In the "certain KTV" incident, ignoring the fact that Ma Xyong injured himself, he beat and abducted the victim Wang X 2, and after beating the victim Zhang X 1 in the XX highway service area, he ignored the fact that Wei X Lian pretended to be injured, ignored the police obstruction, forcibly abducted the victim Zhang X 1, and deliberately caused false injuries, taking advantage of the victim's personal and psychological disadvantage of being forced and intimidated, and imposing his will on the other party in the name of "mediation" to demand the other party's property, and his conduct fully conformed to the criminal composition of the crime of kidnapping. The defender's statement that "Ma did not subjectively have the intention to illegally occupy other people's property, objectively did not commit acts of violent hijacking or threatening the victim, nor did he threaten others to pay ransom under the threat of the victim's life and safety, nor did he embezzle any victim's property, so it does not constitute the crime of kidnapping." The three kidnapping cases alleged in the indictment were all caused by civil disputes, and the degree of personal restraint imposed on the victim by Ma and others' conduct did not meet the standard of kidnapping, and during the period the victim's relatives and friends took the initiative to mediate with an intermediary, and the cases all took place in a public place, which did not meet the characteristics of the crime of kidnapping", and this court did not accept it.
Second, Ma led others to forcibly break into the public security organs, had an argument with the people's police, and forcibly took the parties involved in the case away from the public security organs, making it impossible for the public security organs to carry out their work normally, seriously damaging the prestige of the public security organs and their status and image among the people, and causing irreparable heavy losses. The defender's defense opinion that "Ma X did not lead others to forcibly break into the police station, nor did he cause any losses, and the normal work of the state organs was still carried out, and his conduct did not constitute the crime of assembling a crowd to attack state organs" cannot be sustained, and this court does not support it.
3. Ma led and instructed others to detain Guo 3 due to a debt dispute, during which Guo 3 was beaten, and this case is a joint crime, and regardless of whether Ma beat Guo 3 or not, he should also bear legal responsibility for the criminal acts committed by the people he gathered. The defender's defense opinion that "Ma X illegally detained Guo X 3 because Guo X 3 owed money and did not pay it back, his subjective malice and social harm were not great, and Guo X 3 was not beaten during the detention period, and Ma X should be given a lighter punishment" cannot be sustained, and this court does not accept it.
Fourth, Ma Xjie and Ma Xchuang, as well as co-defendants Jin Xzhen and Ma X3, all confessed that they were instructed by Ma to participate in the detention of victims Guo X 1 and Zhao X 1, and Hou X Guang confessed that Ma X participated in the mediation of the matter at the "XX" hotel in a certain county. The above evidence is sufficient to prove that Ma was involved in the case and played an important role. The defender's defense opinion that "Ma X did not participate in the illegal detention of Guo X 1 and Zhao X 1, and the alleged fact does not exist" cannot be sustained, and this court does not accept it.
5. In order to collect debts, Ma gathered a number of people to forcibly enter Wang's home, had a dispute with Wang1 and his family, beat Wang1 and his pregnant wife, and destroyed the property in Wang1's home, seriously disrupting the normal lives of others, and his conduct met the criminal composition of the crime of illegal home trespass. The defender's defense opinion that "Ma X went to the victim Wang's house to collect debts is an act of debt collection and an act of exercising civil rights, and this cause blocks the establishment of the crime" cannot be sustained, and this court does not support it.
6. The evidence in the case shows that Ma X led and instructed others to use illegal means such as insulting, intimidating, and pulling banners to demand debts from X 2 Jie, Liu X 2, and Guo X 2, seriously affecting the production and business activities of the "XX" power company operated by Liu X 3, causing psychological panic to Liu X 3, Liu X 2, and Guo X 2, and their conduct meets the criminal composition of the crime of picking quarrels and provoking trouble. The defender's statement that "Ma's request for debts from 2 Jie and Liu 2 is not out of nothing and does not constitute the crime of picking quarrels and provoking trouble." Wang Xjie, Sha Xzhe, and Ma Xqing demanded debts from a certain 1 right, but they were not instructed by Ma, and this case has nothing to do with Ma", and this court does not adopt it.
Seventh, in his confession, Ma did not deny the fact that he took the property in the car of the victim Liu X 1, but only argued that it was used to offset the debts owed by Liu X 1. However, when the victim Liu X 1 and the witness Lu X testified that Ma X took the property in Liu X 1's car, Liu X 1 failed to stop it, and there was no substantive contradiction between the victim's statement and the witness's testimony to prove that Fang X was responsible. It can be seen that Ma's act of appropriating Liu1's property for himself violated Liu1's will and belonged to the category of forcible demand. The defender's statement that "the statement of the victim Liu X 1 contradicted the testimony of the witness Lu X and could not prove that Ma X forcibly took possession of Liu X 1 value 2."56 property" cannot be sustained, and this court does not accept it.
Eighth, Ma said that "in the three kidnapping cases alleged by the public prosecution, he did not gather people and did not beat the other party's personnel. In the case of assembling a crowd to attack state organs, he did not gather people, but was only a bystander and did not participate. Entering Liu's home with Liu's permission does not constitute the crime of picking quarrels and provoking trouble. He did not arrange for Wang Xjie and others to ask for accounts from a certain 1 right. Liu X 1 took the initiative to deliver his property to himself, and his own conduct did not constitute the crime of picking quarrels and provoking trouble", which is inconsistent with the facts and evidence of this case, and is not accepted by this court.
Defendant MaCertaincommitted the crime of kidnapping and was sentenced to 15 years imprisonment and a fine of 300,000 yuan; commits the crime of assembling a crowd to attack state organs and is sentenced to six years' imprisonment; committed the crime of picking quarrels and provoking trouble, and was sentenced to six years' imprisonment and a fine of 30,000 yuan; committed the crime of illegal detention and was sentenced to two years' imprisonment; guilty of trespass to a dwelling and sentenced to one year's imprisonment; It was decided to enforce the sentence of 20 years imprisonment and a fine of 330,000 yuan.