The place of the crime was at the door of a supermarket in Mengyin County, Linyi City. In June 2024, the parents of the victim Zhang Li still ran a supermarket. Photo by Southern Weekly reporter Chai Huiqun
As a suspect in a homicide case, Xing Wenlong's life and death have undergone two "flips" during the litigation stage:
First, the court of first instance sentenced him to a suspended death, but the procuratorate did not protest. After Xing Wenlong appealed, the court of second instance remanded the case for a new trial, and the court of first instance changed his sentence to death for immediate execution.
According to the defense opinion, the reversal of the sentence violated the principle of "no increase in sentence on appeal". At the end of 2023, during the death penalty review stage, the Supreme People's Court found that the original judgment violated legal procedures, revoked the death sentence, and remanded the case for retrial.
Relevant materials show that after Xing Wenlong was sentenced to a suspended death sentence in the first instance, the victim's family was not satisfied and reported it many times. During the first remand for retrial, the leadership of the court of first instance issued instructions requiring that "no extreme incidents occur".
Murder caused by ordinary quarrels
The facts of Xing Wenlong's case are not complicated. According to the case file materials: At about 17 o'clock on June 29, 2016, Sun Wen and his wife from Mengyin County, Linyi City, Shandong Province, went to pick up their children at their father-in-law's house.
The owner of the supermarket is Zhang Li, the victim in this case. Sun Wen and his wife then entered the supermarket to find Zhang Lili, and the two sides quarreled. According to the testimony of Zhang Li's wife, Sun Wen left with a sentence when he left: "You want to die!" Zhang Li was worried that something would happen, so he called a friend for help.
After leaving the supermarket, Sun Wen called Xing Wenlong to ask him to come over, and Xing Wenlong then arrived by car with two companions. According to Sun Wen's confession, his purpose in looking for Xing Wenlong was to let Xing "beat Zhang Li out of anger". Xing Wenlong, on the other hand, said that the purpose of his visit was to help Sun Wen "stand on the field" (in the local dialect, meaning to help one side deter the other in a conflict).
In fact, neither Xing Wenlong nor the companions who were called by Xing Wenlong knew Zhang Li.
Xing Wenlong was born in 1995 and was married for two months at the time of the crime. Sun Wen, who is 12 years older than Xing Wenlong, was sentenced to re-education through labor for picking quarrels and provoking trouble when he was young, and in addition to partnering with others to let go of loan sharks. According to Xing Wenlong, Sun Wen is the "big brother" of him and his companions.
After meeting near the supermarket, under Sun Wen's prompting, Xing Wenlong and others covered the license plate number. At this time, Sun Wen's wife arrived with her children on an electric car. "Sun Wen asked her to go home, but she didn't leave, and returned to the commissary." Xing Wenlong once confessed to the police.
Sun Wen and others were afraid that she would suffer a loss, so they drove to the supermarket. When they arrived, they saw Sun Wen's wife arguing with Zhang Li. Sun Wen got out of the car first, and slapped Zhang Li when he got up. A physical altercation ensued. Among them, the supermarket side has Zhang Li and his friend Wang Yan; On Sun Wen's side, Sun Wen, Xing Wenlong and his companion Zhang Weiguo were included, and another companion, Chu Xu, did not participate. During the conflict, Zhang Li used Mazha to fight back.
According to the confessions of Xing Wenlong and Zhang Weiguo, during the fight, Sun Wen shouted at Xing Wenlong: "Get in the car and get the guy." Zhu Xu, who was in the car, got out of the car and opened the trunk, Xing Wenlong took out a "Guan Gong knife" from it, and returned to the scene of the conflict. At the same time, Zhang Li also turned around and entered the supermarket.
The fates of several families are rewritten by what happens in the seconds that follows.
In the surveillance footage at the time of the incident, the person who wielded the knife was Xing Wenlong, the person dressed in black was Sun Wen, and the person who walked out from behind the curtain was Zhang Li. Screenshot of the video
Surveillance footage from the scene shows that at the entrance of the supermarket, Xing Wenlong and Sun Wen attacked the burly Wang Yan with the back of Guan Gong's knife and Ma Zha respectively, Wang Yan retreated into the supermarket, and Xing Wenlong chased him to the door. At this moment, Zhang Li came out from behind the supermarket curtain with an "electric baton" in his hand, and Xing Wenlong swung it at him with the blade of Guan Gong's knife.
The result was a fatal stab. The forensic report showed that Zhang Li's left common carotid artery was severed, resulting in his death from acute hemorrhagic shock.
Seeing that something was wrong, Sun Wen and Xing Wenlong fled in a car. That night, after learning that Zhang Li had died, Sun Wen surrendered to the police. The next day, Xing Wenlong and Zhang Weiguo also surrendered separately.
Chu Xu was taken away by the police at home the next day. About a month before the accident, Chu Xu was arrested for participating in another fight. The day before Zhang Li was killed, he had just been released from the detention center after completing his release on bail pending trial. Xing Wenlong originally planned to drive Chu Xu home that day, but he received a call from Sun Wen halfway, so he turned back and went to "station" for Sun Wen. According to Chu Xu, he planned to go home to see his parents and turn himself in, but before he could turn himself in, the police came to the door.
Charges of Guilt
On June 1, 2017, Xing Wenlong's case was tried in the first instance by the Linyi Intermediate People's Court (hereinafter referred to as the Linyi Intermediate People's Court). The Linyi City Procuratorate indicted Xing Wenlong for intentional homicide and three others for intentional injury. The families of the victims filed attached civil lawsuits against the defendants, demanding compensation of 4 million yuan for various losses.
The prosecution and defense argued fiercely around Xing Wenlong's charges: the prosecution believed that Xing Wenlong constituted the crime of intentional homicide, while the defense argued that Xing Wenlong did not have the intention to kill and only constituted the crime of intentional injury.
Xing Wenlong himself defended himself in court that he did not want to kill Zhang Li. At that time, he was standing at the door, the curtain blocked his view, he saw a hand behind the curtain, holding an electric baton in his hand, his attention was all on the electric baton, so he blocked it with a knife.
However, the prosecution believes that Xing Wenlong's claim that he "used a knife to block the electric batons" is not true, and it can be seen from the surveillance video that the knife was slashed in the direction of Zhang Li's neck rather than the electric batons. The wording used in the indictment for this circumstance was: "Xing Wenlong slashed Zhang Li in the neck with a knife. ”
Xing Wenlong's lawyer made a different interpretation of the surveillance video from the prosecution, believing that Xing Wenlong first stood in front of the door and watched, and did not take the initiative to attack, Zhang Li rushed out from behind the curtain in the house, attacked Xing Wenlong with an electric baton, and Xing Wenlong instinctively swung a knife to avoid being electrocuted.
The defense lawyer believes that Xing Wenlong has no grievances with the victim and cannot want to kill him. And the victim was also at fault in the conflict, using electric batons, which led to the escalation of the conflict.
The prosecution believes that Xing Wenlong's motive for the murder can be divided into two stages - at first, he went to harm, but after returning to the scene with a knife, it turned into murder.
At the retrial of the first instance, the prosecution and defense still had different opinions on the issue of charges: the prosecution emphasized that Xing Wenlong's speed and intensity of the attack showed that he had the intent to kill. The defense emphasized that Xing Wenlong was wearing "flip-flops" at the time, indicating that he did not deliberately kill people, but only failed to grasp the proportions in the fight, which led to serious consequences.
The victims, on the other hand, asserted that all four defendants had committed intentional homicide and strongly demanded a heavier sentence.
During the first-instance trial, there was a controversy as to whether the items held by Zhang Li were electric batons. Xing Wenlong and several other defendants all said that they were electric batons, but what was written in the list of physical evidence was a flashlight. One of Xing's defense lawyers had applied to the court to determine what it was, but according to his statement to Southern Weekly, the court did not do so.
Including Xing Wenlong, the four defendants all said in court that they were "sorry for the victim" and said that they would actively compensate. However, the victim did not agree to civil mediation and demanded that Sun Wen and Xing Wenlong be sentenced to death and immediately executed.
The prosecution and defense also disagree on whether Xing Wenlong and Sun Wen have voluntarily surrendered. Both defence lawyers argued that they had surrendered voluntarily and should be given a lighter sentence. However, the prosecution believes that although the two surrendered, they did not truthfully confess at the trial, which did not constitute voluntary surrender.
The family strongly demanded the death penalty
On September 11, 2017, the Linyi Intermediate People's Court issued a first-instance verdict, finding Xing Wenlong guilty of intentional homicide and sentencing him to a death sentence with a two-year reprieve, with restrictions on commutation. Sun Wen was sentenced to life imprisonment for intentional injury, Zhang Weiguo was sentenced to 9 years in prison, and Chu Xu was sentenced to 4 years in prison. In addition, the defendant was ordered to jointly compensate the victim's relatives more than 29,000 yuan. The judgment mentioned that after the collegial panel deliberated the case, the adjudication committee of the Linyi Intermediate People's Court studied and decided. The adjudication committee is the highest adjudication organization for the court to decide on the handling of cases, and is composed of court presidents, division heads, senior adjudicators, and other personnel, and is responsible for researching and deciding on issues concerning the application of law in major, difficult, and complex cases.
With regard to Xing Wenlong's defense opinion that the crime of intentional homicide was not constituted, the Linyi Intermediate People's Court held that based on the tools Xing Wenlong used, the location of the stabbing and the force of the stabbing and the consequences caused, his conduct constituted the crime of intentional homicide, and the lawyer's defense opinion could not be sustained and was not adopted.
In this judgment, the Linyi Intermediate People's Court found that both Xing Wenlong and Sun Wen had surrendered voluntarily and could be punished lightly in accordance with the law. The defense lawyer believes that the circumstances of voluntary surrender were an important factor in Xing Wenlong's ability to save his life in the first trial.
After the first-instance verdict, the Linyi Municipal Procuratorate did not protest. All four defendants, including Xing Wenlong, appealed, arguing that the first trial was too severe.
The victim's family felt that the sentence was too lenient. In March 2018, Zhang Li's father reported to the relevant departments that Sun Wen and Xing Wenlong had engaged in fights, usury, and illegal detention of others.
Three months later, the Shandong Provincial High Court accepted the recommendation of the Shandong Provincial Procuratorate, holding that the facts of whether Xing Wenlong and Sun Wen had voluntarily surrendered, that the evidence was insufficient, and that they were suspected of crimes committed by underworld forces, and ruled to revoke the original verdict and remand for a new trial.
In September 2018, the Mengyin County Public Security Bureau issued a notice to solicit clues from the public about Xing Wenlong and Sun Wen's violations and crimes, saying that the two were "criminal gangs involved in evil".
On April 3, 2019, the Linyi Intermediate People's Court retried Xing Wenlong's case. Before the trial, the judge in charge of hearing the case had received the family of the victim Zhang Li. According to the reception record, Zhang Li's family once again strongly demanded that Xing Wenlong and Sun Wen be sentenced to death, and said that they "do not (accept) mediation and do not want money".
Among the case file materials, there is an approval letter from the then leader of the Linyi Intermediate People's Court. According to the instructions, after the retrial began, the victim's family told the Linyi Intermediate People's Court in writing that if Xing Wenlong was not sentenced to death, they would "risk their lives to defend their rights to the end" and "will not hesitate to use any extreme means." The leaders of the Linyi Intermediate People's Court at that time issued instructions on this, requiring the adjudicators of the case to "arrange for the work of clarifying and explaining, so that no extreme incidents can occur".
Zhang Li's mother holds a portrait of her son. Photo by Southern Weekly reporter Chai Huiqun
On November 22, 2019, the Linyi Intermediate People's Court issued a retrial judgment of first instance, commuting Xing Wenlong's death sentence for intentional homicide, three years' imprisonment for assembling a crowd to fight, and two years' imprisonment for picking quarrels and provoking trouble. The sentences of the other three were the same as the original sentences. According to the retrial verdict, the verdict was also discussed and decided by the adjudication committee of the Linyi Intermediate People's Court.
It is worth mentioning that the retrial judgment "removed" the circumstances of Xing Wenlong's voluntary surrender determined in the first instance, on the grounds that Xing Wenlong's confession at the retrial trial was inconsistent with the facts, and the circumstances of the retraction of the confession were sufficient to affect the conviction and sentencing of the facts.
"Shoot yourself in the foot"
In the view of a lawyer involved in Xing Wenlong's defense, since the procuratorate did not protest, if Xing Wenlong did not appeal, he would have been sentenced to a suspended death sentence. After he appealed, his death sentence was commuted, which is tantamount to "shooting himself in the foot".
However, this trial process was alleged to have violated the principle of "no increase in sentence on appeal". The Criminal Procedure Law stipulates that the court of second instance may not increase the defendant's sentence in a case of appeal unless the procuratorate appeals. This provision, referred to simply as "no increase in sentence on appeal", is one of the basic principles of criminal trial, and was written into the Criminal Procedure Law as early as 1979.
However, some members of the legal profession have pointed out that in judicial practice, the court has also broken through the principle of "no increase in sentence on appeal" to increase the sentence of the defendant. For example, before the revision of the Criminal Procedure Law in 2012, some courts did not directly increase the sentence of a criminal suspect in the second instance, but would remand for a new trial to increase the sentence of the court of first instance, which did not literally violate the legal provision of "no increase in sentence on appeal".
When the Criminal Procedure Law was revised in 2012, it imposed restrictions on "retrial and increase of sentence", stipulating that in cases remanded for new trial, the original trial court may not increase the defendant's punishment unless there are new facts of the crime and the procuratorate supplements the prosecution.
Some lawyers pointed out that after the promulgation of this provision, in some places, the defendant's punishment was increased by means of supplementary prosecution by the procuratorate.
When Xing Wenlong was re-indicted, the Linyi City Procuratorate added two charges of "picking quarrels and provoking trouble" and "gathering crowds to fight" in addition to the crime of intentional homicide.
After the retrial commuted the death sentence, Xing Wenlong appealed again. In the appeal, he no longer stressed that he had been sentenced severely, but expressed remorse for his criminal acts and apologized to the victim's family, saying that he and his family were willing to "do their best to compensate the victim's relatives."
However, the families of the victims remained resolute. In the attached civil appeal, the victim's family mentioned that the defendants had evaded due punishment on the grounds that "the sentence would not be increased on appeal", and that the court of second instance should "resist" this.
On December 3, 2020, the Shandong Provincial High Court held a retrial. Before the trial, the presiding judge received Zhang Li's family and said that after the trial, he would "speed up the progress of the case." At this time, it has been 4 years and 5 months since the case occurred. After Xing Wenlong's death was suspended in the first trial, Zhang Li's family reported to the authorities many times.
At the same time, Xing Wenlong's family also petitioned the Shandong High Court. According to the transcript of the reception, they believed that Sun Wen, as the organizer, was sentenced to life, while Xing Wenlong was sentenced to death, which was "too unfair."
Supreme People's Court: The original judgment violated legal procedures
At the beginning of the second-instance trial, Xing Wenlong's defense lawyer focused on the first-instance violation of the principle of "no increase in sentence on appeal" and held that the Linyi Intermediate People's Court changed the sentence to Xing Wenlong's death sentence for immediate execution when the procuratorate did not raise a protest or add new evidence for the crime of intentional homicide.
The procurator of the Shandong Provincial Procuratorate, who appeared in court, said that the first-instance trial did not violate the principle of "no increase in sentence on appeal" and that the second-instance trial was remanded for retrial on the basis that there were problems in the original first-instance trial's determination of voluntary surrender and that new criminal clues were discovered in the second-instance trial. In addition, it was mentioned that the commutation of the death sentence also took into account Xing Wenlong's personal danger, social harm, and Zhang Li's only son.
Xing Wenlong's defense lawyer believes that none of the two crimes prosecuted in the retrial can be prosecuted for immediate execution, and that a suspended death sentence cannot be "raised" to an immediate execution with a fixed-term imprisonment.
In fact, according to the first-instance retrial verdict, Xing Wenlong's death sentence was commuted to immediate execution for the crime of intentional homicide.
After Xing Wenlong's second appeal, the Shandong High Court upheld the death sentence, holding that the first-instance trial "did not violate the principle of not increasing the sentence on appeal, conformed to the spirit of the law and the original intent of the legislation, and embodied the unity of procedural justice and substantive justice."
The Criminal Procedure Law stipulates that death penalty (immediate execution) cases must be approved by the Supreme People's Court. Xie Tongxiang, a defense lawyer at the stage of Xing Wenlong's death penalty review, told Southern Weekend that as far as he knew, there were initial disagreements within the SPC on whether Xing Wenlong's commutation of death sentence violated the principle of "not increasing the sentence on appeal", but later unified opinions and ruled to revoke the original verdict and remand for a new trial.
In its ruling in Xing Wenlong's case, the Supreme People's Court wrote: "The original judgment violated legal procedures and affected the fair trial of the case. The defense lawyer's defense opinion on the violation of legally-prescribed procedures in this case conforms to the provisions of the law, and this court adopts it. ”
In Xie Tongxiang's view, the so-called "violation of legal procedures" means that the retrial and commutation of the death sentence violates the principle of "no increase in sentence on appeal".
Xie Tongxiang told Southern Weekend that in some criminal cases he handled in the past, he also circumvented the principle of "no increase in sentence on appeal" by remanding for retrial and supplemental prosecution to increase the defendant's punishment. However, cases generally do not reach the Supreme Court, so it is difficult to correct them.
According to public information, the Linyi Intermediate People's Court has a total of three criminal courts. According to Xie Tongxiang, Xing Wenlong's case was tried by the Third Criminal Division of the Linyi Intermediate People's Court in the first instance, and was tried by the First Criminal Court in the first instance. The second retrial has not yet been heard.
A non-case lawyer who has been concerned about the issue of "no increase in sentence on appeal" believes that after the retrial, the court can still continue to change the verdict through the retrial procedure, while the retrial procedure is not subject to the "no increase in sentence on appeal".
The obsession of two fathers
After Zhang Li was killed and Xing Wenlong was arrested, both families were in trouble. Zhang Li's father and Xing Wenlong's father, one insisted on running for his son's "justice"; The other did everything he could to save his son's life.
Coincidentally, as the perpetrator and the victim, Zhang Li and Xing Wenlong were both born in peasant families, and their backgrounds have many similarities.
Zhang Li is the only son in the family and has two older sisters. His father, Zhang Guangyou, told a reporter from Southern Weekend that he took his family to the northeast to "hide" and give birth to Zhang Li. According to Zhang Guangyou's idea, he was supposed to stay in the Northeast, but his wife was unaccustomed to the water and soil, so he returned to his hometown in Shandong.
After Zhang Li became an adult, he first learned to repair cars with his brother-in-law who opened an auto repair shop, and then he didn't want to make much money. Zhang Guangyou paid for his son to open the supermarket. He said that he has always "loved children", and he didn't feel at ease where Zhang Li went, so he didn't think about what happened at home.
Zhang Li had a son before his death, and his wife was pregnant again when he died. According to Zhang Guangyou, after Zhang Li's death, his daughter-in-law once wanted to "drain away" the child, but he disagreed and insisted on letting his daughter-in-law give birth to the child. The daughter-in-law couldn't resist it and gave birth to a daughter. In Zhang Guangyou's view, in this way, Zhang Li has sons and daughters, and as a father, he can be regarded as living up to his dead son.
Zhang Guangyou originally hoped to keep his daughter-in-law, but the daughter-in-law later remarried and had a child. The two children were initially brought by Zhang Guangyou and his wife, but due to their advanced age, they gradually became unable to do so, and they were worried that their grandchildren and granddaughters would become "street children", so they had to hand them over to their former daughter-in-law.
Zhang Guangyou has spent more than 100,000 yuan running around. However, the second daughter will be seriously ill again in 2023, and due to the poor family background of his son-in-law, Zhang Guangyou had no choice but to take out his pension money to help his daughter treat her illness.
But even so, Zhang Guangyou was uncompromising in pursuing Xing Wenlong's death penalty. In his opinion, it is only natural that murder pays for life. "I have no other demand, my demand is that [Xing Wenlong] be sentenced to death and executed immediately." Zhang Guangyou told a reporter from Southern Weekly. He rejected the Xing family's request for financial compensation in exchange for forgiveness because, in his view, the justice of the law "cannot be bought by money."
Zhang Guangyou's eldest daughter's attitude is the same as that of her father, and she does not accept financial compensation from the Xing family. As to why she filed a civil lawsuit attached to the criminal case, she said that it was not for money, but for a chance to appeal.
Like Zhang Li, Xing Wenlong is also the only son in the family, and he also has two older sisters. And Xing's parents, like Zhang Li's parents, were also born to Xing Wenlong when he went to the Northeast to "hide". It's just that Zhang Li's parents went to Heilongjiang, and Xing Wenlong's parents went to Jilin.
Xing Wenlong's father, Xing Xianzhong, did not think that he spoiled his son, he said that if his son did something wrong when he was a child, he would also beat him. But he admits that his wife spoils his son.
Xing Xianzhong still remembers that after giving birth to Xing Wenlong, when the whole family took the train back to their hometown in Shandong, some Northeast people in the same carriage laughed at him: Why did you give birth to so many children? He didn't understand at the time. After Xing Wenlong's accident, he sometimes inevitably thought: How good it would be if he only gave birth to two daughters back then.
In June 2024, when the lawyer went to the detention center for a meeting, Xing Wenlong's father tried to look at his son through the glass, but did not see it. Photo by Southern Weekly reporter Chai Huiqun
Even so, he still has to do everything in his power to save his son's life. Xing Xianzhong told Southern Weekend that during the trial of Xing Wenlong's case, he took his family to Zhang's house to kneel, and entrusted many people to do Zhang Guangyou's work, hoping to gain forgiveness through financial compensation, but it did not work.
At the beginning, after knowing that Xing Wenlong had killed someone, Xing Xianzhong personally sent his son to the door of the criminal police brigade. After Xing Wenlong's death trial was suspended, Xing Xianzhong thought that the sentence was heavy, supported his son's appeal, and hired a lawyer in Beijing for him. He told a reporter from Southern Weekend that the reason why Xing Wenlong was allowed to appeal at that time was because he knew that "the appeal will not increase the sentence". Unexpectedly, after the son appealed, the death sentence was commuted. After the death sentence was upheld in the second instance, he and his wife fell into despair for a while, until early 2024, when the news came that the Supreme People's Court would not approve Xing Wenlong's death sentence.
In the more than two years that he has been waiting for the results of Xing Wenlong's death sentence review, Zhang Guangyou has also been in torment. On June 15, 2024, he told a visiting Southern Weekend reporter that he had just gone to the procuratorate two days ago and would go to the court again the next day. "The procedural issue has nothing to do with me, it is a matter for law enforcement officers. I'll have to explain this to it (the court). ”
After Xing Wenlong was imprisoned for murder, his new wife also gave birth to a daughter. Like Zhang Li's daughter, the child never met his father. The two children are now 8 years old, and the elderly on both sides lied to them that their father had gone abroad or gone out to work.
Southern Weekly reporter Chai Huiqun
Editor-in-charge: Tan Chang