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6197
Lawyerdude’s adaptation of
Richard McDonald’s well substantiated right-to-drive brief!
Adapted From Richard McDonald’s site: http://www.state-citizen.org/files/
See Lawyerdude’s bigger better right-to-drive brief: http://www.lawyerdude.netfirms.com/6059.html
Warning: This brief is for published here to explain Richard McDonald’s theory of state-citizenship. Teodor Marian has always won with this brief! Warning: Don’t give up your other rights. Use the bigger better brief by Palaschak in addition to this brief!
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In the combined Superior and Municipal Court of California
800 South Victoria, Ventura CA 93003
Prosecutor___________, Police officer, and the court’s clerk _____________ doing business under sham, false and corrupt color of law and grandiose shared delusional legal fiction as “people of the state of California”
plaintiffs
v
Joe Citizen, defendant
Joe Citizen, cross plaintiff
v
Prosecutor___________, Police officer __________, and the court’s clerk _____________
cross defendants.
Case #_________________
Document #6197
Notice to Abate.
Common Law Non Statutory Demurrer
Declaration of Joe Citizen
Memorandum of Law
Date:
Time:
Place:
Notice of Demurrer
To all parties and counsel. Be advised that at the venue designated in the caption above, I will ask the court to sustain my common law demurrer.
Table of Contents:
I am not a mere resident; I am a state citizen; I have more rights that a U.S. citizen!
Memorandum of Authorities in Support of this demurrer.
Partial Tables of Authorities cited herein:
Clauses from Our U.S. Constitution cited herein:
Clauses from Our California Constitution cited herein:
Table of U.S. Supreme Court cases cited herein:
Table of California Supreme Court cases cited herein:
Table of California Appellate Court cases cited herein:
Table of Chaptered Statutes cited herein:
My Argument including citations of case and statutory authority
A word about common law demurrer and proceedings in lieu of demurrer.
The facts stated by the prosecution do not constitute a public offense.
Jurisdiction in a criminal case requires jurisdiction over the person - and that is lacking here.
I hereby demur to the complaint/citation and notices the court to abate the action on the following grounds:
I am not a mere resident; I am a state citizen; I have more rights that a U.S. citizen!
The facts stated therein do not constitute a public offense for the reason that the Accused is not a "resident" of the State of
California. There appears to be no law of any State, Municipality, or governmental sub-division forbidding or commanding any act alleged to have been committed by the non-resident "Citizen of California". I am a “state citizen” . That status is recognized by the United States Constitution, Article IV, Sec. 2, Clause 1 (the state citizen clause) which states in full:
“Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
There is no law that forbids any Citizen from traveling or forbidding the Citizen from owning personal property, nor is there any law that regulates the Citizen in the use of his personal Rights or property.
The court has no jurisdiction of the offense charged therein for the reason shown on the face of the citation/complaint, in that the Accused is not properly identified by the allegations, therefore the first element of a crime is missing.
Dated ,1991
Joe Blow, Citizen of California In Pro-Per, Sui Juris
Memorandum of Authorities in Support of this demurrer.
Partial Tables of Authorities cited herein:
Clauses from Our U.S. Constitution cited herein:
9th amendment: Specific Enumeration clause (which was stolen from from Californians by stealthy encroachment of the California corrupt government: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 1
Our Federal Constitution, Article IV, Sec. 2, Clause 1. State Citizen clause: “Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” 1
Clauses from Our California Constitution cited herein:
Cal. Const. Art. 1 Sec. All people are by nature free and independent and have inalienable rights. Among these are enjoying
and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and
privacy.
1
Section 21 or 1849 constitution has by stealthy encroachment been stolen from us! Sec. 21. This enumeration of rights shall not be construed to impair or deny others retained by the people. 1
Table of U.S. Supreme Court cases cited herein:
Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 32 L.Ed. 766, (a California case) “citizen” and “resident” are two different things.
1
United States v. Hudson, 7 Cranch 32 (1812) The courts do not have general roving jurisdiction. 1
Table of California Supreme Court cases cited herein:
Drake, People v. (1912) 162 C. 248, 121 P. 1006. Putting statute in a code does not change its meaning. 1
Gassner v. Patterson, (1863) 23 C. 299 Courts may not extend jurisdiction by ignoring these limitations of jurisdiction specified in the statutes.. 1
K. Tashiro v. Jordan, (1927) 256 P. 545, 201 Cal 239, 53 A.L.R. 1279, affirmed 49 S.Ct. 47, 278 U.S. 123, 73 L.Ed. 214, 14 C.J.S. Sec. 2, p.1131, n. 75, held that "there is a clear distinction between national and State citizenship, U.S. citizenship does not entitle citizens of the Privileges and Immunities of the Citizen of the State." This statement is true today as when made by the Supreme Court. Thus, the California Supreme Court has made a determination that there are two (2) classes of individuals within this State, those who are Citizens of California, and those who are U.S. citizens who are "resident" within the state. 1
Santa Clara County Dist. Atty. Investigators Asso. v. Santa Clara County, (1975) 51 CA3d. 255, 124 Cal.Rptr. 115. 1
Spreckles v. Graham, (1924) 194 C. 516, 228 P. 1040. The court may not extend jurisdiction beyond legislative limitations. 1
Stork, In Re, (1914) 167Cal 294, 139 P. 684 Stork would have escaped prosecution had he not been driving for hire. "The Motor Vehicle Act (Stats. 1913, p.639) is not unconstitutional…in that it requires professional chauffeurs, or drivers of motor vehicles for hire, to pay an annual license tax, but exempts all others operators of such vehicles from such tax and regulation." 1
Table of California Appellate Court cases cited herein:
Callahan v. San Francisco, (1945) 68 CA2d. 286, 156 P.2d. 479. Court may not extend jurisdictional reach beyond the statute.
1
People v. Jackson, (1985) 171 Cal.App.3d. 606, 217 Cal.Rptr. 540 Demurrer is a common law right despite statutory approval or not. 1
Table of Chaptered Statutes cited herein:
1925/ 26 46th Session of the Legislature (Copy attached as Exhibit A), page 833, Chapter 412, Section 1, para (b) states: "The
word "operator" shall include all persons, firms, associations and corporations...but shall not include...who transports his or its
own property...who transports not persons or property for hire...."
1
1937/ 38 52nd Session, Chapter 679, page 1920: “(a) The term "operator" shall include all persons engaging in the transportation
of persons or property for hire or compensation by or upon motor vehicles upon any public highway in this State, either directly or
indirectly, but shall not mean or include the following: (1) Any person transporting his own property in his own vehicle;"
1
1939/ 40 53rd Session page 2654, Chapter 944 (Exhibit C). 1
1941/ 42 54th Session, page 590, Section 9603. (Exhibit D) 1
1957 session. In the 1957 session, the Statutes of California combined the terms "operators and chauffeurs license" to be called a "driver's license". (Attached as Exhibit E). 1
My Argument including citations of case and statutory authority
This is a case that raises two (2) major constitutional questions:
Question #1: Does a Citizen of California have the right to travel?
Question #2: Does a Citizen of California have the right to purchase, own and utilize his personal property?
A word about common law demurrer and proceedings in lieu of demurrer.
A non-statutory, common-law demurrer exists as a vehicle for constitutional and other attacks on the sufficiency of an accusatory pleading. People v. Jackson, (1985) http://www.circuitlawyer.8m.com/jackson.html 171 Cal.App.3d. 609, 217 Cal.Rptr. 540. On the passing of the Judicature Act of 1875 the procedure with respect to demurrers in civil cases was amended, and, subsequently, by the Rules of the Supreme Court, Order XXV. demurrers were abolished and a more summary process for getting rid of pleadings which showed no reasonable cause of action or defense was adopted, called proceedings in lieu of demurrer. Demurrer in criminal cases still exists, but is now seldom resorted to. Demurrers are still in constant use in the United States.
The facts stated by the prosecution do not constitute a public offense.
The facts as stated do not completely identify a public offense. To establish the facts necessary to create a public offense the law must specify to who it applies, and exactly what is the violation. If one or the other is lacking, the facts are insufficient to constitute an offense. The citation/complaint does in itself explain or define what the required status must be, to be within the definition of the created "public offense". The code is specific, it applies only to residents of the state, it does not apply to anyone else. [Lawyerdude says: This argument is left here undeveloped. The state seems to not want to regulate out-of-state drivers - and this is a big theme. A lot happened during the course of each state’s stealthy attempt to encroach upon the sphere of individual autonomy. The states have stolen our travel rights by stealthy encroachment. Now they sell that right back to us in the form of a license.]
The California Supreme Court has held that placing statutes in code does not change their meaning or effect. People v. Drake, (1912) 162 C. 248, 121 P. 1006. The original intent of the Statutes of California, was that it applied only to commercial activities or to statutory residents, and all others were exempt from the regulations. In re Stork, (1914) 167Cal 294, 139 P. 684. In the Forty-Sixth Session of the Legislature (Copy attached as Exhibit A), page 833, Chapter 412, Section 1, para (b) states:
"The word "operator" shall include all persons, firms, associations and corporations...but shall not include...who transports his or its own property...who transports not persons or property for hire...."
Then in the Fifty-Second Session, Chapter 679, page 1920:
"Section 1. The words and phrases used in this act shall be construed for purposes of said act, unless such construction be contrary to or inconsistent with the context thereof, as follows:
(a) The term "operator" shall include all persons engaging in the transportation of persons or property for hire or compensation by or upon motor vehicles upon any public highway in this State, either directly or indirectly, but shall not mean or include the following: (1) Any person transporting his own property in his own vehicle;" (Exhibit B)
The same wording is used in the Statutes of California, Fifty-Third Session page 2654, Chapter 944 (Exhibit C). This is also the intent of the Statutes of California, Fifty-Fourth Session, page 590, Section 9603. (Exhibit D). Then in the 1957 session, the Statutes of California combined the terms "operators and chauffeurs license" to be called a "driver's license". (Attached as Exhibit E). These lawful interpretations and intent are carried forward in the current vehicle code Section 11, paragraph 2, (Attached as Exhibit). This is legally correct for the use of the license to regulate the commercial activities or statutory "residents on the public highways. There has never been any attempt by the Legislature to regulate any Citizen's Right to Travel. Nor was there ever any attempt by the Statutes of California to abolish the Right to Travel or the Right to own property for any Citizen. The application of a commercial restriction upon a state-citizen not subject to the commercial restriction while exercising his Rights to Travel and the utilization of his own property would have a "chilling effect" on the exercise of such Rights and be in direct conflict with the Constitution of the State of California Article I, Section 1 which states in full:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Such an impairment of rights would also violate the “specific enumeration clause” which is section 21 of the 1849 constitution. By stealthy encroachment this clause was removed from the current constitution! This stealthy encroachment is quite the opposite of what our founders had in mind when they enacted the “specific enumeration clause in to the 9th amendment to the federal constitution. The “specific enumeration clause” envisions vindication of rights beyond those specific rights enumerated in the basic bill of rights. The vindication of un-enumerated rights is the stuff of constitutional law. California legislators have stolen part of our bill of rights! They cannot do that. That is why we look to the 1849 constitution!
This court may not thwart legislative intent nor constitutional protections of people driving non-commercially
Courts have no right, no power, to extend statute by construction, so as to dispense with any conditions legislature has seen fit to impose. Gassner v. Patterson, (1863) 23 C. 299; likewise, the Courts must take the statute as they find it. It is their duty to construe it as it stands enacted. Callahan v. San Francisco, (1945) 68 CA2d. 286, 156 P.2d. 479; Santa Clara County Dist. Atty. Investigators Asso. v. Santa Clara County, (1975) 51 CA3d. 255, 124 Cal.Rptr. 115.
Courts are not at liberty to extend application of law to subjects not included within it. Spreckles v. Graham, (1924) 194 C. 516, 228 P. 1040. The Accused is of neither class defined within the legislative intent. Thus, the citation/complaint does not describe a public offense.
Jurisdiction in a criminal case requires jurisdiction over the person - and that is lacking here.
Zip code nonsense; bogus paytriot theory
The Officer was told by me that I do not live in a federal ZIP Code area as a commercial "resident", and over my objections the Officer put a ZIP code number on the citation. The use of the ZIP code also constitutes an assumption in law that the individual is in a commercial activity. The use of the ZIP Code is voluntary, Domestic Mail Services Regulation, Section 122.32. The federal government has also made it a crime to discriminate against anyone for the NON-USE of a ZIP Code, Public Law 91-375, Section 403. Therefore the ZIP code must be removed from the citation as a erroneous entry upon the citation.
In addition, the citation was obtained under duress of being incarcerated if the Accused did not sign the citation, which was
signed U.D. after the signature and was explained to the Officer. Duress means condition of mind produced by improper external pressure or influence that practically destroys free agency of party and causes him to do some act or make contract not of his own volition. Harlan v. Gladding, McBean & Co. (1907) 7 CA 49, 93 P. 400; and Duress is a species of fraud, Leeper v. Beltrami, (1959) 53 C2d. 195, 347 P.2d. 12. Thus, the citation cannot be used as a vehicle for entrapment purposes.
In Burns v. Superior Court, (1961) 195 Cal.App.2d. 596, 599, 16 Cal.Rptr. 64, the Court held "To constitute jurisdiction in
a criminal case there must be two elements, namely, jurisdiction of the person, and jurisdiction of the subject matter, or, as it is
sometimes called, of the offense." In this case the person to whom the law applies is a "resident" of the State of California, a
citizen of the United States under the so-called 14th Amendment. The intent of the law is that it does not apply to the common-law Citizen of the State of California. (Exhibit F)
The statute being enforced must specifically identify to whom it applies, and in this case it does. It states that it applies to every "resident" of the State, therefore "Citizens of California" are not within the specific definition and intent.
Penal Statutes are to be construed to reach no further than their words; no person can be made subject to them by implication. Twing, In re, (1922) 188 C. 261, 204 P 1082; People v. Garcia, (1940) 37 CA2d. Supp. 753, 98 P2d. 265.
The construction of a statute and its applicability to a given situation are matters of law to be determined by the court.
Madison Estate, (1945) 26 C2d. 453, 159 P.2d. 630. When the legislators speak through statutes, their enactments must be given a strict interpretation. The law must be applied as it is written. It cannot be extended by judicial interpretation. Chapman v. Aggeler (1941) 47 CA2d. 848, 119 P.2d. 204. The terms "resident" and "Citizen" are not synonymous. They each have a different meaning and application according to law. Prowd v. Gore, 57 Cal.App. 458, 207 P. 490; Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 32 L.Ed. 766, (a California case). The California Supreme Court in K. Tashiro v. Jordan, (1927) 256 P. 545, 201 Cal 239, 53 A.L.R. 1279, affirmed 49 S.Ct. 47, 278 U.S. 123, 73 L.Ed. 214, 14 C.J.S. Sec. 2, p.1131, n. 75, held that "there is a clear distinction between national and State citizenship, U.S. citizenship does not entitle citizens of the Privileges and Immunities of the Citizen of the State." This statement is true today as when made by the Supreme Court. Thus, the California Supreme Court has made a determination that there are two (2) classes of individuals within this State, those who are Citizens of California, and those who are U.S. citizens who are "resident" within the state.
The Accused is not a "resident" but is in fact and in law a "Citizen of California." (See attached Declaration, Exhibit G)
(Added by Palaschak): The Supreme Court declared a limitation on jurisdiction very early in the case of United States v. Hudson, 7 Cranch 32 (1812):
“Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt -- imprison for contumacy -- enforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.”
Thus, for the foregoing reasons this matter must be dismissed in the interests of justice as an unconstitutional
application of the Vehicle Code as it relates to the Accused.
Dated , 1991
__________ Citizen of California, In Pro-Per, Sui Juris
I, , under penalty of perjury, declare that I am a Citizen of California, domiciled in the State of California and a Citizen of the several States under the United States Constitution, Article IV, Sec. 2, Clause 1, and I am not a citizen of the United States (District of Columbia) and a subject of Congress under the 14th Amendment, or a resident under the 14th Amendment in the State of California. It is hereby certified that service of this document #9167have been made on the Plaintiffs and interested parties by personal service or bymailing one copy each thereof, on this day of , 1991, in a sealed envelope with postage prepaid, properly addressed to them as follows:
The District Attorney
800 S. Victoria
Ventura CA 93003