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Re: [tips_and_tricks] Definition of the legal term "forthwith."

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  • (888)BailMan
    Perhaps a motion to dismiss on the grounds of lack of jurisdiction due to the DAs non compliance with the statute. Then if your motion is denied, be prepared
    Message 1 of 6 , Apr 3, 2008
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      Perhaps a motion to dismiss on the grounds of lack of jurisdiction due to the DAs non compliance with the statute. Then if your motion is denied, be prepared to take the issue up on a writ FORTHWITH!

      Hope this idea helps.

      Bret

      On Apr 3, 2008, at 12:00, Email41@... wrote:

      Does anyone have a dissertation on the legal term, "forthwith?" 

      I am presently engaged in a court issue where the attorney for the state is commanded, "...shall forthwith prepare an information based upon such complaint..." Tex. Crim. Proc. Code Art. 2.05.



    • Moisha Pippik
      I can tell you the definition in the Black s Law 4th Deluxe: Forthwith: Immediately; without delay, directly, hence within a reasonable time under the
      Message 2 of 6 , Apr 3, 2008
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        I can tell you the definition in the Black's Law 4th Deluxe:
         
        Forthwith: Immediately; without delay, directly, hence within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch.  Within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished.  The first opportunity offerred.
        I have highlighted what fits my belief as to what is going on with your situation. 
         
        Here is where I believe you stand.  You are a problem for the court, because you are not consenting by requiring the information.  The information is what creates the case, not the case creating the information.  Now, with this said, the DA or someone who purportedly represents the plaintiff(probably STATE OF TEXAS), needs you to contract by some sort of consent/agreement, voluntarily, with or without consideration. 
         
        If you will focus on what it is they are trying to get you to do, which is agree with them, then you have taken at least half the challenge away from yourself.  Be careful with all mail sent to you, and how you respond to such mail(offers from the court).  It is business, and you are deemed to know the law. 
         
        You need to clearly identify your position to the court/DA/judge/clerk.  NO CONSENT TO THESE PROCEEDINGS, OFFER TO CONTRACT DECLINED!!!!!!!

        Email41@... wrote:
        Does anyone have a dissertation on the legal term, "forthwith?"

        I am presently engaged in a court issue where the attorney for the state is commanded, "...shall forthwith prepare an information based upon such complaint..." Tex. Crim. Proc. Code Art. 2.05.

        A sworn complaint did not appear in the court records until after two appearances and approximately 6 weeks duration of time. There has never been an information filed into the court and now it has been approximately 70 days since the accusation was made of a Class C Misdemeanor violation.

        Bouvier's 1856 states: FORTHWITH. When a thing is to be done forthwith, it seems that it must be performed as soon as by reasonable exertion, confined to that object, it may be done. This is the import of the term; it varies, of course, with every particular case. 4 Tyr. 837; Styles' Register, 452, 3.

        Law.com states: forthwith adv.a term found in contracts, court orders and statutes, meaning as soon as it can be reasonably done. It implies immediacy, with no excuses fordelay.

        I am wondering if any court would accept 70 days from the accusation and 40 days from the filing of a sworn complaint as reasonable for the command "shall forthwith?"

        Tex. Crim. Proc. Code Art. 12.02 Misdemeanors: An indictment or information for any misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.

        I wonder if a judge would attempt to argue the ridiculous position that "forthwith" could include 2 years of time? It seems to me that the refusal of the state attorney to file an information is an artifice to deprive me of my fundamental and
        substantive rights of due process.

        Any ideas?

        shalom,
        email41




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      • Frog Farmer
        ... To go forth he needs it with him! ... Sounds like a waiver occurred. ... Sounds like somebody accepted it and permitted them to move forward without
        Message 3 of 6 , Apr 4, 2008
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          Email41@... wrote:

          > I am presently engaged in a court issue where the attorney for the
          > state is commanded, "...shall forthwith prepare an information based
          > upon such complaint..." Tex. Crim. Proc. Code Art. 2.05.

          To go "forth" he needs it "with" him!

          > A sworn complaint did not appear in the court records until after two
          > appearances and approximately 6 weeks duration of time.

          Sounds like a waiver occurred.

          > I am wondering if any court would accept 70 days from the accusation
          > and 40 days from the filing of a sworn complaint as reasonable for the
          > command "shall forthwith?"

          Sounds like somebody accepted it and permitted them to move forward
          without it.

          > It seems to me that the refusal of the state attorney to file an
          > information is an artifice to deprive me of my fundamental and
          > substantive rights of due process.
          >
          > Any ideas?

          Writ of Mandate, with the alternatives offered being PRODUCE or DISMISS!

          Regards,

          FF
        • Email41@aol.com
          ... Sounds like a waiver occurred. I m not sure if a waiver occured, however, what actually occured according to my knowledge is that I demanded a sworn
          Message 4 of 6 , Apr 8, 2008
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            > A sworn complaint did not appear in the court records until after two
            > appearances and approximately 6 weeks duration of time.

            Sounds like a waiver occurred.


            I'm not sure if a waiver occured, however, what actually occured according to my knowledge is that I demanded a sworn complaint to be presented at each special appearance. At both appearances there did not exist a sworn complaint in the court record. The complaint was sworn after my second demand. I do this intentionally to ensure on the record of my demand for due process inaccordance with the Tx. Code of Crim. Proc. Rules. I believe this establishes the record of the violation of my right to due process and automatically brings jurisdictional challenges to the alleged case.


            > I am wondering if any court would accept 70 days from the accusation
            > and 40 days from the filing of a sworn complaint as reasonable for the
            > command "shall forthwith?"

            Sounds like somebody accepted it and permitted them to move forward
            without it.


            I suspect that the presiding judge (a Texas Ranger who resigned his office to run for the County Judge's office, was not elected and now occupies the Muni Judge's office) accepted it. The attorney for the STATE OF TEXAS has never appeared at any tribunal nor on paper in this alleged case.


            > It seems to me that the refusal of the state attorney to file an
            > information is an artifice to deprive me of my fundamental and
            > substantive rights of due process.
            >
            >     Any ideas?

            Writ of Mandate, with the alternatives offered being PRODUCE or DISMISS!


            I thought your common strategy was to enter a higher court and sue for a Writ of Prohibition. I have some understanding of the concepts but I have never done this petition before. Would I have to sue for the Writ when they are unable to answer the Writ of Mandate (Mandamus or is that something different)?


            Regards,

            FF





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          • Frog Farmer
            ... I forget, why was a second appearance necessary or made? Without a sworn complaint, what gives jurisdiction there? ... I can understand it occurring
            Message 5 of 6 , Apr 8, 2008
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              > I'm not sure if a waiver occured, however, what actually occured
              > according to my knowledge is that I demanded a sworn complaint to be
              > presented at each special appearance. At both appearances there did
              > not exist a sworn complaint in the court record.

              I forget, why was a second appearance necessary or made? Without a
              sworn complaint, what gives jurisdiction there?

              > The complaint was
              > sworn after my second demand. I do this intentionally to ensure on the
              > record of my demand for due process inaccordance with the Tx. Code of
              > Crim. Proc. Rules. I believe this establishes the record of the
              > violation of my right to due process and automatically brings
              > jurisdictional challenges to the alleged case.

              I can understand it occurring because I once put off arraignment 9 times
              in nine months, but they never succeeded and finally "dismissed"
              something that didn't even exist to be dismissed, a CASE.

              > Sounds like somebody accepted it and permitted them to move
              > forward
              > without it.
              >
              > I suspect that the presiding judge (a Texas Ranger who resigned his
              > office to run for the County Judge's office, was not elected and now
              > occupies the Muni Judge's office) accepted it.

              I meant, it looks like YOU accepted it too.

              > The attorney for the
              > STATE OF TEXAS has never appeared at any tribunal nor on paper in this
              > alleged case.

              There you go, "alleged case". Haven't you had enough yet? Who is
              milking this thing, and why?

              > I thought your common strategy was to enter a higher court and sue for
              > a Writ of Prohibition.

              Back in the old days I did do that, but now I know it is ALL show, all
              smoke and mirrors, so I don't play. I disqualify everyone ASAP/IMOC and
              explain that my time on Earth is short and I'm finished pretending and
              playing and I don't mind if they play with the bewildered populace and
              I'll even have fun with them, but I cannot take it seriously or spare
              their game any time or resources. Most appear to understand.

              > I have some understanding of the concepts but I
              > have never done this petition before. Would I have to sue for the Writ
              > when they are unable to answer the Writ of Mandate (Mandamus or is
              > that something different)?

              Writ of Mandate (English word) is the same as Mandamus (Latin word). It
              is a writ that commands that a ministerial duty be performed. The duty
              has to be identified and articulated.

              A Writ of Prohibition is the opposite - it commands that an act NOT take
              place.

              CALIFORNIA PENAL CODE
              SECTION 995-999a

              995. (a) Subject to subdivision (b) of Section 995a, the indictment
              or information shall be set aside by the court in which the
              defendant is arraigned, upon his or her motion, in either of the
              following cases:
              (1) If it is an indictment:
              (A) Where it is not found, endorsed, and presented as prescribed
              in this code.
              (B) That the defendant has been indicted without reasonable or
              probable cause.
              (2) If it is an information:
              (A) That before the filing thereof the defendant had not been
              legally committed by a magistrate.
              (B) That the defendant had been committed without reasonable or
              probable cause.
              (b) In cases in which the procedure set out in subdivision (b) of
              Section 995a is utilized, the court shall reserve a final ruling on
              the motion until those procedures have been completed.

              996. If the motion to set aside the indictment or information is
              not made, the defendant is precluded from afterwards taking the
              objections mentioned in Section 995.

              997. The motion must be heard at the time it is made, unless for
              cause the court postpones the hearing to another time. The court may
              entertain such motion prior to trial whether or not a plea has been
              entered and such plea need not be set aside in order to consider the
              motion. If the motion is denied, and the accused has not previously
              answered the indictment or information, either by demurring or
              pleading thereto, he shall immediately do so. If the motion is
              granted, the court must order that the defendant, if in custody, be
              discharged therefrom; or, if admitted to bail, that his bail be
              exonerated; or, if he has deposited money, or if money has been
              deposited by another or others instead of bail for his appearance,
              that the same be refunded to him or to the person or persons found by
              the court to have deposited said money on behalf of said defendant,
              unless it directs that the case be resubmitted to the same or another
              grand jury, or that an information be filed by the district
              attorney; provided, that after such order of resubmission the
              defendant may be examined before a magistrate, and discharged or
              committed by him, as in other cases, if before indictment or
              information filed he has not been examined and committed by a
              magistrate.

              998. If the court directs the case to be resubmitted, or an
              information to be filed, the defendant, if already in custody, shall
              remain, unless he or she is admitted to bail; or, if already admitted
              to bail, or money has been deposited instead thereof, the bail or
              money is answerable for the appearance of the defendant to answer a
              new indictment or information; and, unless a new indictment is found
              or information filed before the next grand jury of the county is
              discharged, the court shall, on the discharge of such grand jury,
              make the order prescribed by Section 997.

              999. An order to set aside an indictment or information, as
              provided in this chapter, is no bar to a future prosecution for the
              same offense.

              999a. A petition for a writ of prohibition, predicated upon the
              ground that the indictment was found without reasonable or probable
              cause or that the defendant had been committed on an information
              without reasonable or probable cause, or that the court abused its
              discretion in utilizing the procedure set out in subdivision (b) of
              Section 995a, must be filed in the appellate court within 15 days
              after a motion made under Section 995 to set aside the indictment on
              the ground that the defendant has been indicted without reasonable or
              probable cause or that the defendant had been committed on an
              information without reasonable or probable cause, has been denied by
              the trial court. A copy of such petition shall be served upon the
              district attorney of the county in which the indictment is returned
              or the information is filed. The alternative writ shall not issue
              until five days after the service of notice upon the district
              attorney and until he has had an opportunity to appear before the
              appellate court and to indicate to the court the particulars in which
              the evidence is sufficient to sustain the indictment or commitment.










              >
              >
              >
              >
              > Regards,
              >
              > FF
              >
              >
              >
              >
              >
              >
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