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PUBLIC OFFENSES & DUE PROCESS

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  • paradoxmagnus@earthlink.net
    Despite much CRITICISM & ARGUMENT it STILL appears to me that PUBLIC OFFENSES are a SPECIFIC CLASS of OFFENSES and DO NOT INCLUDE all
    Message 1 of 2 , Jan 1, 2006
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      Despite much CRITICISM & ARGUMENT it STILL appears to me that PUBLIC OFFENSES are a SPECIFIC CLASS of OFFENSES and DO NOT INCLUDE all infractions/misdemeanors/felonies, especially after you review the provisions in the PENAL CODE for GRAND JURIES.

      888.  A grand jury is a body of the required number of persons returned from the citizens of the county before a court of competent jurisdiction, and sworn to inquire of public offenses committed or triable within the county.
         Each grand jury or, if more than one has been duly impaneled pursuant to Sections 904.5 to 904.9, inclusive, one grand jury in each county, shall be charged and sworn to investigate or inquire into county matters of civil concern, such as the needs of county officers, including the abolition or creation of offices for, the purchase, lease, or sale of equipment for, or changes in the method or system of, performing the duties of the agencies subject to investigation pursuant to Section 914.1.
      889.  An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.
       

      914.  (a) When the grand jury is impaneled and sworn, it shall be charged by the court.  In doing so, the court shall give the grand jurors such information as it deems proper, or as is required by law, as to their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury.
         (b) To assist a grand jury in the performance of its statutory duties regarding civil matters, the court, in consultation with the district attorney, the county counsel, and at least one former grand juror, shall ensure that a grand jury that considers or takes action on civil matters receives training that addresses, at a minimum, report writing, interviews, and the scope of the grand jury's responsibility and statutory authority.
         (c) Any costs incurred by the court as a result of this section shall be absorbed by the court or the county from existing resources.

      917.  The grand jury may inquire into all public offenses committed or triable within the county and present them to the court by indictment.

      918.  If a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he may declare it to his fellow jurors, who may thereupon investigate it.

      919.  (a) The grand jury may inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted.
         (b) The grand jury shall inquire into the condition and management of the public prisons within the county.
         (c) The grand jury shall inquire into the willful or corrupt misconduct in office of public officers of every description within the county.
      923.  (a) Whenever the Attorney General considers that the public interest requires, he or she may, with or without the concurrence of the district attorney, direct the grand jury to convene for the investigation and consideration of those matters of a criminal nature that he or she desires to submit to it.  He or she may take full charge of the presentation of the matters to the grand jury, issue subpoenas, prepare indictments, and do all other things incident thereto to the same extent as the district attorney may do. (rest omitted)
      924.6.  If no indictment is returned, the court that impaneled the grand jury shall, upon application of either party, order disclosure of all or part of the testimony of a witness before the grand jury to a defendant and the prosecutor in connection with any pending or subsequent criminal prodeeding before any court if the court finds following an in camera hearing, which shall include the court's review of the grand jury's testimony, that the testimony is relevant, and appears to be admissible.
       
      Coundn't an INDICTMENT by a GRAND JURY be the EXCEPTION to where the DISTRICT ATTORNEY is the PUBLIC PROSECUTOR?
      GC 26500.  The district attorney is the public prosecutor, except as otherwise provided by law.
         The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.

      Especially when you consider the GRAND JURIES POWERS to "inquire into the case of every person imprisoned in the jail of the county on a criminal charge and not indicted", and to "consider those matters of a criminal nature" SUMBITTED by the ATTORNEY GENERAL, and to disclose "all or part of the testimony of a witness before the grand jury to a defendant and the prosecutor in connection with any pending or subsequent criminal prodeeding before any court"? 

      Doen't that make sense given the FACT that a CRIMINAL ACTION is based on the commission of a PUBLIC OFFENSE?

      PC 683.  The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.
       
      PC 684.  A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense.

      And a PUBLIC OFFENSE is a CRIMINAL CHARGE, isn't it? 

      PC 145.  Every public officer or other person, having arrested any person upon a criminal charge, who willfully delays to take such person before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor.

      PC 858.  When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.  If it appears that the defendant may be a minor, the magistrate shall ascertain whether such is the case, and if the magistrate concludes that it is probable that the defendant is a minor, and unless the defendant is a member of the armed forces of the United States and the offense charged is a misdemeanor, he shall immediately either notify the parent or guardian of the minor, by telephone, telegram, or messenger, of the arrest, or appoint counsel to represent the minor.
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=858-883

      Wouldn't that mean that an INFRACTION SHOULD NOT BE a PUBLIC OFFENSE?
      "Further, infractions are not crimes and the rule forbidding successive prosecutions of a defendant is not applicable when an infraction is one of the offenses involved. (People v. Battle (1975) 50 Cal.App.3d Supp. 1 [123 Cal.Rptr. 636].) fn. 1 [1b] Proceedings on infractions are not attended by the same constitutional safeguards as those attending felony or misdemeanor prosecutions. The limitation on an accused's right to jury trial of infractions has withstood constitutional attack upon the rationale the Legislature did not intend to classify infractions as crimes. (See People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116 Cal.Rptr. 795] and People v. Battle, supra, 50 Cal.App.3d Supp. 1.)"  People v. Sava (1987) 190 Cal.App.3d 935 , 235 Cal.Rptr. 694
      Could it be that most PROSECUTIONS for PUBLIC OFFENSES are supposed to REQUIRE an INDICTMENT and ARE NOT SUPPOSED to be by INFORMATION?
      PC 889.  An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.

      The fact is that PUBLIC OFFENSES are supposed to be PROSECUTED by INDICTMENT or INFORMATION.

      PC 682.  Every public offense must be prosecuted by indictment or information, except:
         1. Where proceedings are had for the removal of civil officers of the state;
         2. Offenses arising in the militia when in actual service, and in the land and naval forces in the time of war, or which the state may keep, with the consent of Congress, in time of peace;
         3. Misdemeanors and infractions;
         4. A felony to which the defendant has pleaded guilty to the complaint before a magistrate, where permitted by law.

      Could it be that the PUBLIC OFFENSES that are supposed to be PROSECUTED by INFORMATION are those CASES listed in the FIFTH AMENDMENT?

      "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."  Amendment V, Constitution for the United States of America

      Wouldn't that EXPLAIN what the CALIFORNIA PENAL CODE used to read?

      13,682. Public offenses, how prosecuted.
      Every public offense must be prosecuted by indictment, except:
      1. Where proceedings are had for the removal of civil officers of the state;
      2. Offenses arising in the militia when in actual service, and in the land and naval forces in time of war, or which this state may keep, with the consent of Congress, in time of peace;
      3. Offenses tried in justices' and police courts.
       
      13,701. Information of threatened offense.
      An information may be laid before any of the magistrates mentioned in section 808, that a person has threatened to commit an offense against the person or property of another.
       
      13,702. Examination of complainant and witnesses.
      When the information is laid before such magistrate he must examine on oath the informer, and any witness he may produce, and must take their depositions in writing, and cause them to be subscribed by the parties making them.
       
      13,703. Warrant of arrest.
      If it appears from the depositions that there is just reason to fear the commission of the offense threatened, by the person so informed against, the magistrate must issue a warrant, directed generally to the sheriff of the county, or any constable, marshal, or policeman in the state, reciting the substance of the information, and commanding the officer forthwith to arrest the person informed of and bring him before the magistrate.
       
      13,704. Proceedings on charges being controverted.
      When the person informed against is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto. The evidence must be reduced to writing and subscribed by the witnesses.
       
      13,705. Person complained of, when to be discharged.
      If it appears that there is no just reason to fear the Commission of the offense alleged to have been threatened, the person complained of must be discharged.

      Could an INDICTMENT be the EXCEPTION that allows a MISDEMEANOR or INFRACTION case to be PROSECUTED as a PUBLIC OFFENSE?

      PC 949.  The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a.  The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law.  The first pleading on the part of the people in a proceeding pursuant to Section 3060 of the Government Code is an accusation.

      Wouldn't an INDICTMENT be a PROPER ACCUSATORY PLEADING in a MISDEMEANOR and INFRACTION case?

      PC 950.  The accusatory pleading must contain:
         1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties;
         2. A statement of the public offense or offenses charged therein.

      PC 951.  An indictment or information may be in substantially the following form:  The people of the State of California against A. B. In the superior court of the State of California, in and for the county of ____.  The grand jury (or the district attorney) of the county of ____ hereby accuses A. B. of a felony (or misdemeanor), to wit:  (giving the name of the crime, as murder, burglary, etc.), in that on or about the ____ day of ____, 19__, in the county of ____, State of California, he (here insert statement of act or omission, as for example, "murdered C. D.").

      PC 952.  In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified.  Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.  In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.

      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=948-973

      Wouldn't this EXPLAIN WHY originally all PUBLIC OFFENSES in California were triable in certain courts and were PROSECUTED by INDICTMENT and ONLY PROCEEDINGS that were for the REMOVAL of PUBLIC OFFICERS were by accusation or information, SINCE PUBLIC OFFICERS would fall under the EXCEPTION in the FIFTH AMENDMENT for "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger"?

      ACCUSATION, crim. law. A charge made to a competent officer against one who has committed a crime or misdemeanor, so that he may be brought to justice and punishment.

      2. A neglect to accuse may in some cases be considered a misdemeanor, or misprision. (q. v.) 1 Bro. Civ. Law, 247; 2 Id. 389; Inst. lib. 4, tit. 18.

      3. It is a rule that no man is bound to accuse himself, or to testify against himself in a criminal case. Accusare nemo se debet nisi coram Deo. Vide Evidence; Interest; Witness.

      INFORMATION. An accusation or complaint made in writing to a court of competent jurisdiction, charging some person with a specific violation of some public law. It differs in nothing from an indictment in its form and substance, except that it is filed at the discretion of the proper law officer of the government, ex officio, without the intervention or approval of a grand jury. 4 Bl. Com. 308, 9.

      2. In the French law, the term information is used to signify the act or instrument which contains the depositions of witnesses against the accused. Poth. Proc. Cr. sect. 2, art. 5 .

      3. Informations have for their object either to punish a crime or misdemeanor, and these have, perhaps, never been resorted to in the United States or to recover penalties or forfeitures, which are quite common. For the form and requisites of an information for a penalty, see 2 Chit. Pr. 155 to 171. Vide Blake's Ch. 49; 14 Vin. Ab. 407; 3 Story, Constitution, 1780 3 Bl. Com. 261.

      4. In summary proceedings before justices of the peace, the complaint or accusation, at least when the proceedings relate to a penalty, is called an information, and it is then taken down in writing and sworn to. As the object is to limit the informer to a certain charge, in order that the defendant may know what he has to defend, and the justice may limit the evidence and his subsequent adjudication to the allegations in the information, it follows that the substance of the particular complaint must be stated and it must be sufficiently formal to contain all material averments. 8 T. R. 286; 5 Barn. & Cres. 251; 11 E. C. L. R. 217; 2 Chit. Pr. 156. See 1 Wheat. R. 9.  (Bouvier's Law Dictionary, 1856)

      INDICTMENT, crim. law, practice. A written accusation of one or more persons of a crime or misdemeanor, presented to, and preferred upon oath or affirmation, by a grand jury legally convoked. 4 Bl. Com. 299; Co. Litt. 126; 2 Hale, 152; Bac. Ab. h. t.; Com. Dig. h. t. A; 1 Chit. Cr. L. 168.

      2. This word, indictment, is said to be derived from the old French word inditer, which signifies to indicate; to show, or point out. Its object is to indicate the offence charged against the accused. Rey, des Inst. l'Angl. tome 2, p. 347.

      3. To render an indictment valid, there are certain essential and formal requisites. The essential requisites are, 1st. That the indictment be presented to some court having jurisdiction. of the offence stated therein. 2d. That it appear to have been found by the grand jury of the proper county or district. 3d. That the indictment be found a true bill, and signed by the foreman of the grand jury. 4th. That it be framed with sufficient certainty; for this purpose the charge must contain a certain description of the crime or misdemeanor, of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation. Cowp. 682, 3; 2 Hale, 167; 1 Binn. R. 201; 3 Binn. R; 533; 1 P. A. Bro. R. 360; 6 S. & R. 398 4 Serg. & Rawle, 194; 4 Bl. Com. 301; Yeates, R. 407; 4 Cranch, R. 167. 5th. The indictment must be in the English language. But if any document in a foreign language, as a libel, be necessarily introduced, it should be set out in the original tongue, and then translated, showing its application. 6 T. R. 162.

      4. Secondly, formal requisites are, 1st. The venue, which, at common law should always be laid in the county where the offence has been committed, although the charge is in its nature transitory, as a battery. Hawk. B. 2, c. 25, s. 35. The venue is stated in the margin thus, "City and county of _____ to wit." 2d. The presentment, which must be in the present tense, and is usually expressed by the following formula, "the grand inquest of the commonwealth of ______ inquiring for the city and county aforesaid, upon their oaths and affirmations present." See, as to the venue, 1 Pike, R. 171; 9 Yerg. 357. 3d. The name and addition of the defendant; but in case an error has been made in this respect, it is cured by the plea of the defendant. Bac. Ab. Misnomer, B; Indictment, G 2; 2 Hale, 175; 1 Chit. Pr. 202. 4th. The names of third persons, when they must be necessarily mentioned in the indictment, should be stated with certainty to a common intent, so as sufficiently to inform the defendant who are his accusers. When, however, the names of third persons cannot be ascertained, it is sufficient, in some cases, to state " a certain person or persons to the jurors aforesaid unknown." Hawk. B. 2, c. 25, s. 71; 2 East, P. C. 651, 781; 2 Hale, 181; Plowd. 85; Dyer, 97, 286; 8 C. & P. 773. See Unknown. 5th. The time when the offence was committed, should in general be stated to be on a specific year and day. In some offences, as in perjury, the day must be precisely stated; 2 Wash. C. C. Rep. 328; but although it is necessary that a day certain should be laid in the indictment, yet, in general, the prosecutor may give evidence of an offence committed on any other day previous to the finding of the, indictment. 5 Serg. & Rawle, 316. Vide 11 Serg. & Rawle, 177; 1 Chit. Cr. Law, 217, 224; 1 Ch. Pl. Index, tit. Time. See 17 Wend. 475; 2 Dev. 567; 5 How. Mis. 14; 4 Dana. 496; C. & N. 369; 1 Hawks, 460. 6th. The offence should be properly described. This is done by stating the substantial circumstances necessary to show the natue of the crime and, next, the formal allegations and terms of art required by law. 1. As to the substantial circumstances. The whole of the facts of the case necessary to make it appear judicially to the court that the indictors have gone upon sufficient premises, should be set forth; but there should be no unnecessary matter or any thing which on its face makes the indictment repugnant, inconsistent, or absurd. Hale, 183; Hawk. B. 2, c. 25, s. 57; Ab. h. t. G 1; Com. Dig. h. t. G 3; 2 Leach, 660; 2 Str. 1226. All indictments ought to charge a man with a particular offence, and not with being an offender in general: to this rule there are some exceptions, as indictments against a common barrator, a common scold, and the keeper of a common bawdy house; such persons may be indicted by these general words. 1 Chit. Cr. Law, 230, and the authorities there cited. The offence must not be stated in the disjunctive, so as to leave it uncertain on what it is intended to rely as an accusation; as, that the defendant erected or caused to be. erected a nuisance. 2 Str. 900; 1 Chit. Cr. Law, 236.

      2. There are certain terms of art used, so appropriated by the law to express the precise idea which it entertains of the offence, that no other terms, however synonymous they may seem, are capable of filling the same office: such, for example, as traitorously, (q. v.) in treason; feloniously, (q. v.) in felony; burglariously, (q. v.) in burglary; maim, (q. v.) in mayhem, &c. 7th. The conclusion of the indictment should conform to the provision of the constitution of the state on the subject, where there is such provision; as in Pennsylvania, Const. art. V., s. 11, which provides, that " all prosecutions shall be carried on in the name and by the authority of the commonwealth of Pennsylvania, and conclude against the peace and dignity of the same." As to the necessity and propriety of having several counts in an indictment, vide 1 Chit. Cr. Law, 248; as to. joinder of several offences in the same indictment, vide 1 Chit. Cr. Law, 253; Arch. Cr. Pl. 60; several defendants may in some cases be joined in the same indictment. Id. 255; Arch. Cr. Pl. 59. When an indictment may be amended, see Id. 297 .Stark. Cr. Pl. 286; or quashed, Id. 298 Stark. Cr. Pl. 831; Arch. Cr. 66. Vide; generally, Arch. Cr. Pl. B. 1, part 1, c. 1; p. 1 to 68; Stark. Cr. Pl. 1 to 336; 1 Chit. Cr. Law, 168 to 304; Com. Dig. h. t.: Vin. Ab. h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.; Nels. Ab. h. t.; Burn's Just. h. t.; Russ. on Cr. Index, h. t.,

      5. By the Constitution of the United States, Amendm. art. 5, no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war, or public danger.  (Bouvier's Law Dictionary, 1856)

      It appears to me that DUE PROCESS of law SHOULD REQUIRE a WARRANT to ARREST in most cases.

      "The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights."  HALE v. HENKEL, 201 U.S. 43 (1906)

      Unless of course, one is a PUBLIC OFFICER or the CRIME is a FELONY.

      PC 836.  (a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur:
         (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence. 
        (2) The person arrested has committed a felony, although not in the officer's presence.
        (3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed.  (rest omitted)
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=833-851.90

      Could it be POSSIBLE that the government is operating under a FICTION OF LAW and using PRESUMPTIONS & INFERENCES against us regarding a PUBLIC OFFENSE?

      I think the government is using PUBLIC OFFENSE to do an "end run" around the 4th, 5th & 6th AMENDMENTS.

      I think that PUBLIC OFFENSES are really a SPECIFIC CLASS of offenses as EVIDENCED by the FACT that they have DESIGNATED certain violations of the PENAL CODE as PUBLIC OFFENSES.

      PC 136.1.  (a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:(rest omitted)
      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=132-141
      PC 136.7.  Every person imprisoned in a county jail or the state prison who has been convicted of a sexual offense, including, but not limited to, a violation of Section 243.4, 261, 261.5, 262, 264.1, 266, 266a, 266b, 266c, 266f, 285, 286, 288, 288a, or 289, who knowingly reveals the name and address of any witness or victim to that offense to any other prisoner with the intent that the other prisoner will intimidate or harass the witness or victim through the initiation of unauthorized correspondence with the witness or victim, is guilty of a  public offense, punishable by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.
         Nothing in this section shall prevent the interviewing of witnesses.
       
      PC 171b.  (a) Any person who brings or possesses within any state or local public building or at any meeting required to be open to the public pursuant to Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of, or Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of, the Government Code, any of the following is guilty of a public offense punishable by imprisonment in a county jail for not more than one year, or in the state prison:(rest omitterd)

      I think that the government doesn't want people to realize that in most cases the SAME RIGHTS apply to all DEFENDANTS in a CRIMINAL ACTION.

      And wouldn't that INCLUDE anyone DETAINED/CITED/ARRESTED for a so-called PUBLIC OFFENSE? 

      And I think that they have probably hidden & obscured that fact through various REWRITES of the laws and by replacing the term PUBLIC OFFENSE in many places with the terms FELONY & MURDER and so on.
       
      Of course a lot of other people BELIEVE OTHERWISE.
       
      For centuries people BELIEVED that the "world is flat,"
       
      For centuries people BELIEVED that man would NEVER FLY.
       
      For years it was BELIEVED that no man could travel faster than the speed of sound.
       
      Of course that didn't make what they BELIEVED was TRUE, did it?
       
      The simple FACT is that WHAT many people BELIEVE may have LITTLE or NO BASIS in FACT.
       
      I THINK people should do their own RESEARCH and then DECIDE for themselves what they should BELIEVE.
       
      Patrick in California

      "Those who CANNOT or DO NOT READ, INTERPRET and UNDERSTAND things for themselves, will be DEPENDENT on others and will always be easily MISLEAD or DECEIVED."-PKM

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