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Party information:

The original public prosecution organ is the People's Procuratorate of Louxing District, Loudi City, Hunan Province. Appellant (defendant in the original trial) Ouyang Mou, formerly known as Chen Mou Xiong, male, 1 September, 990/day was born in Xinhua County, Hunan Province, Han nationality, junior high school education, farmer, and lived in Huxi Village, Qixing Street Town, Lianyuan City, Hunan Province. On suspicion of robbery, he was detained in criminal detention on July 5, 2009 and arrested on August 2, 2009. Now detained in Loudi detention center. Defender Xi Xiangdong, lawyer of Shandong Tianmeng Law Firm. Defender Li Jinxing, lawyer of Shandong Chengsi Law Firm.

After the trial:

The People's Court of Louxing District, Loudi City, Hunan Province tried the case that the People's Procuratorate of Louxing District, Loudi City, Hunan Province sued and accused the defendants Ouyang Mou and Ouyang Mou Jia of committing robbery, and made a criminal judgment of (20 10) Louxing Criminal Chu Zi No.29. After that, the defendant Ouyang Mou refused to accept it and appealed to our court. On June 25, 20 10, our hospital made a criminal ruling of (20 10) Lou Zhong Xing Zi No.2 14, revoked (20 10) Lou Xing Zi No.29, and sent the case back to Louxing District People's Court for retrial. Louxing District People's Court formed another collegiate panel to re-hear the case according to law. During the trial, the defendant Ouyang Moujia escaped, and Louxing District People's Court ruled on 20 12123 that the trial of Ouyang Moujia was suspended. On October 8th, 20 131,Louxing District People's Court made a criminal judgment (20 10) Louxing Criminal Chu Zi No.486. After the verdict, Ouyang still refused to accept it and appealed to our court again. After accepting the case, our court formed a collegiate bench according to law, and held a public hearing on this case in Loudi Intermediate People's Court on February 27th, 20 14. Loudi City People's Procuratorate appointed procurators Tan Hui and Xie Kaituo to appear in court to perform their duties, and appellant Ouyang and his former defender Zeng Zhifei attended the proceedings. After the trial, the appellant Ouyang terminated the entrustment relationship with Ceng Zhi, the original defender, and entrusted lawyer Xi Xiangdong of Shandong Tianmeng Law Firm and lawyer Li Jinxing of Shandong Chengsi Law Firm as his defenders. With the approval of the Higher People's Court of Hunan Province, the trial period was extended for two months, and the trial has now ended.

The court of first instance found that:

The original judgment found that on the morning of July 2, 2009, the defendant Ouyang Mou proposed to rob Loudi, and Ouyang Mou Jia gathered Ouyang Yi, Ouyang Jia, Ouyang Molin, Ouyang Mou Yi and others (all handled separately), and then Ouyang Mou and Chen Mou (handled separately) drove a sky-blue taxi to take Ouyang Mou Jia and others to Loudi City, and chose the location of the crime and carried out the corresponding division of labor. At about 1 o'clock the next morning, except Chen Mou, the other six people finished their supper at Jingu Market. Ouyang arranged for Ouyang Yi and Ouyang Mouyi to look for the robbery object, while others waited in the car. After Ouyang Yi and Ouyang Yi found the victims Xiao Mou and Wu Moumou, they immediately informed Ouyang Mou and others that six people followed the two victims to the downstairs of Jingu Market 10 building, and then held Xiao Mou and Wu Moumou in a taxi driven by Chen Mou with machetes, and took them to a remote place in Fangshi Village, Dake Office, Louxing District. Then Ouyang Moujia watched the wind, and the rest threatened Xiao Mou and Wu Moumou with violence. Ouyang, Through value appraisal, the value of the robbed mobile phone is 1 148 yuan, and the value of the gold necklace is 10842 yuan. The above facts are proved by the following evidence submitted by the public prosecution and cross-examined and certified by the court: 1, acceptance of the criminal case registration form and the decision to file a case, which proves the fact that the public security organ filed a case for investigation; 2. The statements and identification transcripts of the victims Xiao Mou and Wu Moumou prove the fact that the defendants Ouyang Mou and Ouyang Moujia robbed Xiao Mou and Wu Moumou with knives in the early morning of July 3, 2009; 3. The confessions and identification transcripts of the co-defendants, Ouyang Jia, Ouyang Yi, Ouyang Molin and Ouyang Yi, prove the fact that the four men and the defendants Ouyang Mou and Ouyang Moujia robbed the victims Xiao Mou and Wu Moumou with knives in Loudi City in the early morning of July 3, 2009; 4. The testimony of witnesses Guo Moumou, Chen Mou Army and Chen Mou proves the fact that the defendant Ouyang was not in his home or Chen Mou Army at the time of the incident; 5. The testimony of witnesses Liao Moujia, Guo Moumou, Liao Mouyi, He Moumou and Fu Mou proves that Ouyang Jia, the brother of the defendant Ouyang Mou, has been working in Guangdong and has no time to commit crimes; 6. The testimony of witnesses Ouyang Mobing, Ouyang Moding and Lu Moumou proves the fact that Ouyang Jia (Lu Moumou's husband) had no time to commit crimes; 7. The testimony of witness Zhu Moumou (nicknamed Bing Gu) proves the fact that Ouyang Mou didn't call him with his usual mobile phone number on July 1 2009, but with the mobile phone number beginning with 13 1; 8. The testimony of witness Liao proves the fact that Ouyang called him on July 2, 2009, but his phone number was unclear. 9. A call record, which proves that from July 2, 2009 1 051minute to July 3, 2009 at 8: 53, Ouyang's common mobile phone number was158738518/KLOC-0. 10. Show the photos of a mobile phone seized by the public security organ, the photos showing the phone call records and the identification records of the defendant Ouyang Mou, which prove the fact that Ouyang Mou talked with Zhu Moumou three times on July 1 2009 and that Ouyang Mou talked with Liao Mou eight times on July 2, 2009; Evidence 7- 10 proves the fact that the defendant Ouyang used the mobile phone number beginning with 13 1 in addition to the mobile phone number of181; 1 1, the description of Leping Police Station of Louxing Branch of Loudi Public Security Bureau, which proves Ouyang's arrival; 12. Identify photos of the scene to prove the basic situation of the case scene; 13. Price appraisal conclusion, which proves that the gold necklace and Nokia N72 mobile phone robbed by the victim Xiao were valued at * * * yuan/1990 yuan after appraisal; 14. Extract the transcript, which proves the fact that under the guidance of the victims Xiao Mou and Wu Moumou, the public security police extracted two bank cards left by the defendant after robbery at the crime scene; 15. The fact that the defendant Ouyang was brought to justice passively was proved after the arrest; 16. Household registration certificate, which proves that the defendant Ouyang was over 18 years old when he committed the crime.

The court of first instance held that:

The court of first instance held that the defendant Ouyang Mou, for the purpose of illegal possession, took the means of threatening violence with others and robbed citizens' property on the spot in a large amount, which constituted robbery. In the * * * crime, the defendant Ouyang played a major role and was the principal offender. Accordingly, according to the provisions of Article 263, Article 25, Paragraph 1, Article 26, Paragraphs 1 and 4, and Article 52 of the Criminal Law of the People's Republic of China, the defendant Ouyang was convicted of robbery, sentenced to eight years' imprisonment and fined 20,000 yuan.

Request for second instance:

After the verdict was pronounced, the defendant Ouyang refused to accept it and appealed to our court. His appeal was based on unclear facts and insufficient evidence, and he requested to be acquitted in the second instance. The reasons are as follows: (1) He only had a mobile phone number, and the number of 13 1 belonged to his uncle Chen Mou Army, and he did not contact others at the time of the crime; (2) He grew up in Xinhua, and later came to Lianyuan to live in his uncle Chen Mou's military home, and had no contact with his peers in Huxi Village; (3) The case did not rule out the obvious contradiction between documentary evidence, physical evidence and other evidence.

We find out that:

At the trial of the second instance, Ouyang's original defender suggested that the evidence in this case could not exclude reasonable doubts about the facts identified in the original trial. Ouyang's phone bill proved that Ouyang did not contact the taxi driver to transfer the crime place at the time of the crime, and Ouyang's use of the mobile phone number starting with 13 1 could not lead to the conclusion that he had multiple mobile phone numbers. According to the presumption of innocence, Ouyang should be acquitted. At the trial of the second instance, the procuratorial organ believed that the facts of the crime in this case were clear, the evidence was indeed sufficient, the law applied in the original trial was correct, and the sentence was appropriate. The appeal should be rejected and the original judgment upheld. It was found through trial that on the morning of July 3, 2009 1 o, the victims Xiao Mou and Wu Moumou were held in a taxi by five young men with machetes near Jingu Market 10 building in Louxing District, Loudi City. The two victims were taken to a remote place in Fangshi Village, Dake Office in Louxing District, and five people snatched 6,500 yuan in cash and Nokia N72 mobile phone from Xiao Mou.

The Court considers that:

The court believes that the fact that the appellant Ouyang committed robbery in the original judgment is unclear and the evidence is insufficient. The reasons are as follows: 1, the photo of the identification scene identified in the original judgment proves that Ouyang Moujia identified the crime scene; The price appraisal conclusion proves the value of the robbed property; Extract transcripts to prove that the public security police extracted two bank cards left at the scene after the victim was robbed; The testimony of witnesses Liao Moujia, Guo Moumou, Liao Mouyi, He Moumou and Fu Mou proved that the appellant Ouyang's brother Ouyang Jia had no time to commit crimes; The testimony of witnesses Ouyang Mobing, Ouyang Moding and Lu Moumou proved that Ouyang Mou, another Ouyang Jia in the same village, had no time to commit crimes. None of the above evidence can prove that Ouyang has an objective connection with the robbery facts in this case. 2. The testimony of witnesses Guo Moumou, Chen Mou Army and Chen Mou contradicts the testimony of witnesses Liao Xiongsheng and Yan Xiaomei provided by Zeng Zhifei, the original defender of the appellant Ouyang, which cannot be reasonably ruled out and cannot prove that Ouyang had committed the crime. 3. There are doubts in the process of the appellant Ouyang Mou's arrival at the case: Ouyang Mou confessed that Ouyang Jia was the proposer and the main messenger of the robbery after he arrived at the case, but Ouyang Mou was arrested, and the investigation organ issued a statement to prove that on the evening of July 13, 2009, the investigators arrested Ouyang Jia in Qixing Street Town, Lianyuan City, but learned that Ouyang Jia was not at home, and then took Ouyang Mou at home to Qixing Street Police Station. The police handling the case took a mobile phone photo of Ouyang and sent the photo to the police of Loudi Leping Police Station by MMS, so that Ouyang Moujia could make a mixed identification of Ouyang Moujia's photo. After Ouyang Moujia identified it, he pointed out that Ouyang Mou was the person who claimed to be Ouyang Jia. After investigation, there is no such identification record in the evidence of this case, which cannot prove what photos Ouyang Moujia identified at that time, whether there were witnesses present at the time of identification, and how to identify them. In addition, the investigators did not make a reasonable explanation for why Ouyang was directly taken away without verifying whether Ouyang Jia, Ouyang's brother, was involved in the crime or excluding another Ouyang Jia from the same village. Therefore, there are major doubts about Ouyang's arrival. 4. There is a contradiction between the victim's statement and the perpetrator's statement: two hours after the crime, the victims Xiao Mou and Wu Moumou reported that they were held hostage and robbed by five young people with machetes in Jingu Market 1 0 building in the early morning of July 3, but each of them confessed that six people had committed the crime. Therefore, there are great doubts about the number of criminals in this case. 5. There is a contradiction between the documentary evidence and the perpetrator's confession: Ouyang A, Ouyang A, Ouyang B, Ouyang B and others all mentioned in the confession that Ouyang used his mobile phone to contact the taxi driver during the robbery, but the detailed list of Ouyang's mobile phone call retrieved by the investigation agency shows that, There was no call at Ouyang's mobile phone number 1 5873851811from July 2009105 to July 3, 2009 at 8: 53. Witness Liao proved that he had telephone contact with Ouyang on July 2, 2009, but could not determine the telephone number; Witness Zhu Moumou proved that he had telephone contact with Ouyang on July 1 2009, and Ouyang used the number beginning with "13 1", but he could not prove that Ouyang used the number beginning with "13 1" to contact him at the time of the crime. The above evidence can only prove that Ouyang used other mobile phones before the incident, and cannot directly prove that Ouyang used other mobile phones during the incident. At the same time, the public prosecution agency cannot provide objective evidence to prove that Ouyang used other mobile phones or other mobile phone numbers. Therefore, the evidence in this case cannot prove that Ouyang had telephone contact with the taxi driver. 6. Inconsistency of Ouyang A's confession: Ouyang A's confessions in the investigation organ and the original trial have contradictions that cannot be reasonably ruled out, such as when and where he knew Ouyang, whether he knew Ouyang or Ouyang A, and the objectivity and authenticity of his confession are in doubt. 7. Although Ouyang Moujia and other * * * accomplices all confessed to the fact of participating in the robbery, there are contradictions in the details related to Ouyang Mou: (1) Ouyang Moujia confessed that on the morning of July 2, 2009, Ouyang Mou went to Ouyang Mouyi, Ouyang Molin, Ouyang Yi and Ouyang Jia's home and asked them to go to Loudi together. Ouyang Jia, Ouyang Yi, Ouyang Mouyi and Ouyang Molin all confessed that Ouyang Mouyi called them that day. (2) Ouyang Moujia confessed in the investigation organ that Ouyang Mou and Ouyang Yi, Ouyang Jia, Ouyang Molin and Ouyang Mouyi all live in the same village, study in the same school and often surf the Internet together, so they all know each other. Ouyang Yi, Ouyang Jia, and Ouyang Molin confessed that they were introduced by Ouyang Moujia when they went to rob. (3) When Ouyang A arrived at the case, he confessed that Ouyang A was the one who robbed together. After Ouyang A arrived at the case, Ouyang A confessed that Ouyang A was the one who robbed together. Ouyang Mou Yi, Ouyang Yi and Ouyang Jia all mentioned that Ouyang Mou was the one who robbed in their first confessions on 10/6, 2009. To sum up, there are many contradictions in the confessions of Ouyang A and other * * * accomplices about whether they know Ouyang, when and where they know Ouyang, and who gathered them to rob Loudi together, which cannot be reasonably ruled out. Therefore, it is doubtful whether Ouyang A and other * * * accomplices know Ouyang and whether Ouyang participates in the robbery. 8. All the * * * accomplices confessed that after they came to Loudi on July 2, they checked in on the fifth and ninth floors of the Everest Hotel at Loudi Railway Station. After the robbery, they returned to the hotel to rest until the morning of July 3. However, the owner of Everest Hotel proved that there were no six similar young people staying on July 2nd. 9. In this case, the taxi driver who picked up the perpetrator, the taxi used for committing the crime, the machete, the mobile phone and necklace obtained from the robbery were not found. Ouyang Moujia and others confessed that they rented a sky-blue taxi to Loudi at that time. The taxi driver's surname was Chen and the license plate number was Xiang KX43. However, the investigation agency failed to find the taxi and the taxi driver. At the same time, the murder weapon and stolen mobile phone in this case were not verified. Because taxis, murder weapons and stolen goods are objective evidences that can directly prove whether the appellant Ouyang participated in the robbery, the lack of these evidences makes the existing evidence lack of objective physical evidence to confirm it. To sum up, although the evidence in this case can prove that the victims Xiao and Wu were robbed by others in the early morning of July 3, 2009, according to the analysis of the evidence that the appellant Ouyang participated in the robbery in the original judgment, there are doubts about the evidence of the number of criminals; Ouyang has major doubts in the process of arriving at the case; * * * The confession of the accomplice Ouyang Moujia is inconsistent, and its confession about whether and when he knew Ouyang Mou is inconsistent with other evidence in this case, and there are also contradictions with other accomplices' confessions about how to know Ouyang Mou; There are also contradictions in the witness testimony of whether Ouyang has committed the crime. In addition, the taxi driver who drove to pick up the robber, the taxi used in the crime, the murder weapon and the gold necklace and mobile phone obtained from the robbery were not found. Therefore, in this case, it is proved that the evidence of the appellant Ouyang's participation in the robbery has significant doubts, which cannot be reasonably ruled out, and a complete chain of evidence has not been formed, which cannot meet the proof standard of clear facts and sufficient evidence. Therefore, the appellant Ouyang and his defender's appeal grounds and defense opinions for requesting acquittal were established and adopted by our court. The original judgment found that the facts were unclear and the evidence was insufficient. Accordingly, in accordance with the provisions of Item (3) of Paragraph 1 of Article 225 and Item (3) of Article 195 of the Criminal Procedure Law of the People's Republic of China, and after discussion and decision by the judicial committee of our court, the verdict is as follows:

The result of the second instance judgment:

1. Revoke the criminal judgment (20 10) No.486 of Louxing Criminal Chu Zi of Louxing District People's Court of Loudi City, Hunan Province. Second, the appellant Ouyang is not guilty. This judgment is final.

Judges:

Presiding Judge Zhao Yongan

Judge Zhou Wei

Acting Judge Zhang Ting

Judgment date: July 11th, 2014

Clerk Acting Clerk Xie Lixiu