Brief introduction to the case: The defendants, Wu and Chen, teamed up to gather others to gamble in a downtown area of Hongjie Street, Jiaojiang District, Taizhou City. Wu and others gathered to gamble in the form of "pulling out two cards" and made profits from the dealers. The casino made a total profit of more than 100000 yuan from the lottery. The defendant, Wu, surrendered to the public security organ after his accomplice was arrested, and was later released on bail pending trial. The prosecution was transferred to the court for trial on the crime of opening a casino, and the defender was entrusted by Wu to appear in court to defend him. The court sentenced Wu and others in the first instance to one year and two months in prison for the crime of gathering people to gamble, with a two-year suspension of execution. The public prosecution did not protest against this case.

The focus of controversy: whether the defendant Wu and others constitute the crime of opening a casino or the crime of gathering people to gamble.

Defense statement

Chief Judge and People's Juror:

Zhejiang Liqun Law Firm has accepted the commission of the defendant Wu in this case and appointed Lawyer Jin Wei as the defender of the defendant Wu. In order to perform the duties of the defender, the defender consulted the file materials of the case, met the defendant Wu Moumou, and participated in the court investigation just now. Now, based on the facts and laws, the defender expresses the following defense opinions for the reference of the Judicial panel:

1. Firstly, the defense believes that the defendant Wu's criminal behavior should be classified as the crime of gathering people to gamble. The indictment accuses the defendant Wu and others of constituting the crime of opening a casino and is not established.

Article 303 of the Criminal Law of our country stipulates two charges: the crime of gathering people to gamble and the crime of opening gambling. Both crimes are subjectively manifested as intentional and profit-making, but there are differences in objective aspects. The crime of gathering people to gamble refers to the act of gathering people to gamble or engaging in gambling for the purpose of profit; The crime of opening a casino refers to the behavior of the perpetrator, with the purpose of profit, providing a place for gambling, setting up gambling methods, providing gambling equipment, chips, funds, and other organized gambling activities. The criminal behavior of the defendant Wu in this case conforms to the characteristics of the crime of gathering people to gamble, but does not meet the special features of the crime of opening a casino. The reasons are as follows:

(1) Opening a casino, as the name suggests, refers to a casino provided by the actor to gamblers, which is both opened and controlled by the actor. However, the defendant Wu and others in this case did not provide or establish a dedicated gambling venue. What they believe to be the casino they opened is actually just the place they found that they believe can gather for gambling. That is to say, the defendant Wu is just looking for a gambling location, looking for a popular gambling location that can attract gamblers to participate in gambling. This can be proven by the content in Chen's interrogation transcript, From the fourth line of page 3 of Chen's first interrogation transcript, "I, Wu, Li, and others are discussing where to put the casino. Li said to go to Hongjia Shangyangqiao Village to take a look and wait. We arrived at a bamboo shed 150 to 200 meters north of the 112 bus stop sign in Hongjia Shangyangqiao Village, and decided to give it a try. The next day at 9:00 am and 10:00 am, Wu, Li, and others came to this bamboo shed to open" dial two tickets " The casino, however, is not very popular here. After about 5 or 6 days, the casino moved to the side of the fish stall at the east gate of the Shangyangqiao vegetable market. "On page 5, bottom 10, line 9," We gathered at the fish stall on the south side of the east gate of the vegetable market to gamble and attract gamblers, but there were many onlookers and too few people participating in the gambling and betting, On page 6, line 2, "Afterwards, the casino moved to the simple shed next to the current cooked food stall opposite the east gate of the Shangyangqiao vegetable market." On page 6, lines 7 to 9, "The third location was opened for about a month because the chicken and duck feathers of the vendor opposite were too smelly, and the casino was moved to the iron shed where the chicken and duck stall was located." "The casino moved to the fourth location for about 10 days. The casino moved south and inside again. The above statement by Chen indicates that the defendants Wu, Chen, and others have been searching for a gambling location that can be used for gambling and attract or attract more gamblers. This location is open and does not belong to any place owned or controlled by anyone. The reason why the place they found turned into a gambling venue was entirely because they got together and started gambling, attracting passersby to participate together. Although Chen mentioned in the interrogation transcript that they opened a casino, their so-called opening of a casino does not truly mean opening a casino in the legal sense, but only refers to finding a gambling location that they believe can be used for gambling.

(2)The defendant Wu and others used their own behavior of gambling first, then attracting others to participate in the gambling, and then taking turns to profit, which fully conforms to the objective manifestation of crowd gambling. It is a behavior of crowd gambling, and generally, the behavior of opening a casino does not involve gambling.

The defendants Wu and Chen both confessed that after they found a place they believed could be gambling, they gathered together to start gambling and attract other gamblers to participate. On page 2, lines 9 to 11 of Wu's fourth inquiry record, we gathered under the iron shed at the intersection of the Shangyangqiao vegetable market to gamble by playing two cards. First, I, Chen, and others took turns grabbing cards and betting to attract gamblers. When there were more gamblers, the five of us stopped playing cards and betting; Starting from line 13 on page 3, "If there is a shortage of people in the casino to dial cards or place bets, we will go ahead. On page 5, line 3 of Chen's first inquiry record, we took turns grabbing cards and betting, and the gambling was done on our own. Often, if we had gambled for more than half an hour without anyone, we would stand by and play. On page 5, line 17, line 18, we asked the old guard at the Yangqiao vegetable market to borrow a wooden table and several plastic stools, and gathered by the fish stall south of the east gate of the vegetable market to attract gamblers.

(3)The main way for the defendant to profit is through "lottery", and opening casinos often provides high interest gambling profits in addition to "lottery".

The defense believes that the defendant Wu and others in this case did subjectively express their intention to open a casino for profit activities, but in their actual behavior, the method they adopted was not directly to open a casino to organize others to gamble for profit, but only to attract others to participate in gambling and make profits through group gambling. Therefore, it does not constitute the crime of opening a casino, but rather constitutes the crime of gathering gambling.

2. In terms of sentencing, the defender believes that the defendant Wu has a legally mitigated or mitigated punishment, and requests the court to impose a lighter punishment on him in accordance with the law.

(1) The defendant Wu surrendered himself. According to Article 67 (1) of the Criminal Law, criminals who voluntarily surrender may be given lighter or mitigated punishment; For those who commit minor crimes, they can be exempted from punishment.

(2) The defendant is a first-time offender and has no previous criminal record;

3. Requesting the application of probation to the defendant Wu.

Article 72 of the Criminal Law stipulates that for criminals who are sentenced to criminal detention or fixed-term imprisonment of not more than three years and meet the following conditions, suspension of sentence can be declared: firstly, the crime is relatively minor, secondly, there is repentance, thirdly, there is no risk of committing another crime, and fourthly, the suspension of sentence has no significant adverse impact on the community in which they reside. The defendant, Wu, was able to voluntarily surrender after committing a crime, which fully reflects his repentant attitude and the risk of no further crime. In addition, according to Article 303 (1) of the Criminal Law, the sentencing for committing gambling crimes is imprisonment, detention, or public surveillance of no more than three years. Therefore, the application of probation to the defendant, Wu, fully meets the conditions stipulated by law. The court is requested to fully consider this.