IN RE Bramscher Demurrer

***This is another motion I did file Pro Se that was maliciously and vindictively ignored by the Judges in Adams County District Court!!! F’n ANUS BRAINS…

“A defense asserting that even if all the factual allegations in a complaint are true, they are insufficient to establish a valid cause of action.  The precise basis for a demurrer can vary, with some examples being a failure to state a claim or an allegedly unconstitutional statute.

In most jurisdictions, the demurrer is now called a motion to dismiss.

DEFINITION FROM NOLO’S PLAIN-ENGLISH LAW DICTIONARY

(dee-mur-ur) A written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge will then be held to determine the validity of the demurrer. Some parts of a lawsuit may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, the judge will usually sustain the demurrer (state it is valid), but “with leave to amend” in order to correct the original complaint. If after amendment the complaint is still not legally good, a demurrer will be granted. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer.”

[http://www.law.cornell.edu/wex/demurrer]

 IN RE Bramscher Demurrer

A.  INTRODUCTION

Comes the defendant, in forma paperus, begging honorable court a demurrer to the indictment [information] interposed, upon the ground that the information is fatally insufficient in law upon its face in this:  That it does not charge a public offense and fails to meet fundamental fairness and due process.

The information herein charges that defendant:

IMG_2644

The defense cites United States v Metzdorf, 252 F933, 08/18/1918 and argues and contends:  (1) The statute, thought in general terms, must be construed to apply to alleged acts of “harassment” [versus threats???] against [Municipal Court Elected Attorney John Stipech] in his public character and capacity only, for that, if intended to apply to acts of harassment against [Stipech] in his private character and capacity, it is without the power of the legislature and unconstitutional, (2) This established, the information is insufficient, for it does not charge the how the defendant [committed an act] of “harassment” against Stipech in his public character and capacity, and (3) The language alleged does not in any event constitute an “Act of Harassment” within the statute including jurisdiction and/or essential elements with specificity as required by fundamental fairness and due process (United States v Nance, 173 US APP DC 472, 533 F2d 699 (10th Cir 1976); Lowenburg v United States (10th Cir 1946)

[In United States v. Nance, supra, for example, convictions on false pretenses counts were vacated because the indictment failed to set forth any of the false representations made. The court observed, “the United States Attorney would have a free hand to insert the vital part of the indictment without reference to the grand jury.” 174 U.S.App.D.C. at 474, 533 F.2d at 701. Similarly, in United States v. Farinas, 299 F.Supp. 852, 854 (S.D.N.Y.1969), the court dismissed an indictment which charged a violation of the Selective Service Act of 1967 in defendant’s refusal “to obey certain orders” but failed to specify the nature of the orders disobeyed.]

[https://casetext.com/case/lowenburg-v-united-states/]

B.  STATEMENT OF FACTS

1)     Judicial Review was established in Marbury v Madison, 5 US 137, 2 L Ed 60 (1803)

[http://www.law.cornell.edu/supremecourt/text/5/137]

2)      Freedom of expression upon public question is secured by the First Amendment USC and the liberty protected by the Fourteenth Amendment includes the liberty of Speech and Press (Gitlow v New York (1925)).

[http://www.law.cornell.edu/wex/gitlow_v._new_york_1925]

3)      USC Amend Four protects against unreasonable search and seizures and the need for probable cause.

[http://www.law.cornell.edu/wex/fourth_amendment]

4)      USC Amend Five grants accused Due Process of Law.

[http://www.law.cornell.edu/wex/fifth_amendment]

5)      USC Amend Six grants right of jurisdiction (see State v Mowrey, 91 Idaho 693, 429P2d 425 (Idaho 1967); People v Steiner, 640 P2d 250, 08/20/81) and that accused has the right “To be informed of the nature and cause of the accusation” (United States v Whiffen, 121 F3d 18, 08/29/97; United States v Sepulveda, 15 F3d 1161, 1192 (1st Cir 1993).

[https://www.courtlistener.com/idaho/7rJt/state-v-mowrey/]

[http://www.leagle.com/decision/1981890640P2d250_1882]

[http://www.leagle.com/decision/1997139121F3d18_1136]

[http://www.gpo.gov/fdsys/pkg/USCOURTS-med-2_13-cr-00079/pdf/USCOURTS-med-2_13-cr-00079-1.pdf]

6)      Colo Const ART II sections 7 & 8 set forth, “People shall be secure in their persons” and the need for probable cause and Section 16 grants accused right “To demand the nature and cause of the accusation” (see Highly v People, 65 Colo 497, 177 P975 (1918) Colo Lexis 419).

7)      CRCrP Chap 29 Rules 3, 4 and 7 and C.R.S. 16-5-101, 16-5-202 and 16-5-205 set forth fundamental fairness and the legal requirements for Information.

8)      An Information is sufficiently particular if it elucidates  the elements of a crime, enlightens a defendant as to the nature of the charges against which he must defend and enables him to plead double jeopardy in bar of future prosecutions for the same offense (see United States v Whiffen, supra; United States v Sepulveda, supra; Highly v People, supra; Grimsley v United States (1931 CA5 FLA) 50 F2d 509; People v Joseph, 920 P2d 850 (Colo App 1995); People v Roberts, 668 P2d 997 (Colo App 1983); CRCrP Rules 7(b)(1) and 7(b)(2)(III).

9)      Citing People v Joseph, supra, an Information is considered sufficient if it can be understood that the person who signed it had authority to do so, that the defendant is named or described, that the offense was committed within the jurisdiction of the court or is triable therein, and that the offense charged is described in enough detail for the court to pronounce judgment upon a conviction (see CRCrP Rule 7(b)(2); C.R.S. 16-5-202(1)(1986 Repl Vol 8a).  The overriding concern in determining the sufficiency of an Information is whether it is definite to inform the defendant of the charges against him so as to enable the defendant to prepare an effective defense (People v Roberts, supra).

10)   The constitutional right to be informed of the nature and cause of an accusation, generally, is rooted in the USC Amendment Six.  The right to be informed of nature and cause of accusation is substantial and cannot be denied (Grimsley v United States (1931, Ca5 FLA) 50 F2d 509).

11)   The Information must answer the questions of “who”, “what”, “where”, and “how” (People v Joseph, supra; People v Tucker, 631 P2d 162 (07/13/81); People v Steiner, 640 P2d 250, 08/20/81).

12)   A defendant charged with a crime must be brought into court on a complaint, information, or indictment made or found according to the requirements of the law (Bustamante v People, 136 Colo 362, 317 P2d 885 (1957)).

13)   There can be no conviction or punishment for a crime without formal and sufficient accusation (Spence v Dowd (1944, Ca7 IND) 145 F2d 451).

C.  ARGUMENT

A substantive defect in an Information may be raised at any time during the proceedings (People v Williams, 961 P2d 533 (Colo App 1997).

Objections to form of information must be made before trial or they are waived (People v Hunter, 666 P2d 570 (Colo 1983); People v Joseph, supra; People v Russell, 36 P3d 92 (Colo App 2001).

The information, case 10CR3690 [11SA212], is FATALLY DEFECTIVE absent fundamental fairness as required by constitution, the statutes, the rules and case law supported by the following facts and evidence:

1)      Alleged victim John Stipech is an attorney with Magistrate duties in his public character (see 31AmJ2dEXTRA§39; 7AmJ2dATTY§3; AmJ2dAdminL§138).  Although Stipech as a person answers the question of “who” as required in the Information, John Stipech is no more a “Judge” than Paula Abdul from “American Idol” and “X Factor” and the charge “Retaliation Against a Judge” creating a FATAL ERROR in the Information.

2)      The Complaint and Information is insufficient whereas the critical language does not [specifically] charge the defendant “harassed” [Stipechs’] public character and capacity (see United States v Metzdorf, supra) and this argument will be substantially supported with the FATAL ERRORS in “where” and “how”.

3)      The Information must answer the questions “where” and “how” (People v Tucker, supra; People v Steiner, supra) and citing People v Joseph, supra, FATAL DEFECTS in the Information, case 10CR3690 [11SA212] include:

a)      [The Information fails] to allege commission of offense in Colorado [“where”] (People v Steiner, supra) [“location”]

b)      The Information fails to state “where” in re C.R.S. 18-8-615 in violation of CRCrP Rule 7(b)(1) and 7(b)(2)(III)

c)      When an information fails to allege where the offense was committed, and thus, that it occurred within the jurisdiction of the court, it fails to state facts sufficient to confer jurisdiction upon the District Court of the county in which it is filed to try the defendant (see State v Mowry, supra) and this failure, being FATAL to the sufficiency of the Information (see People v Gardner, 1897 Colo 294, 530 P2d 496 (1975)) cannot be cured by evidence tending to show where the crime was committed (Appl. Alexander, 80 Nev 354, 393 P2d 615 (Nev 1964))

4)      Failure to specify date and time of commission of offense (People v Timmes, 643 P2d 780 (Colo App 1981)).

5)      Failure to allege essential element “How” with specificity (Magee v People, 79 Colo 328, 245 P708 (1926); People v Westendorf, 37 Colo APP 111, 542 P2d 1300 (1975))

6)      Language of statute embodied in information is sufficient, except when offense is described in such general terms “Act of Harassment” that accused is not informed of accusation against him (State v Prejean (1950) 216 La 1072, 45 So 2d 627; Boykin v United States (1926, Ca4 ALA) 11 F2d 484; Reimer-Gross Co v United States (1927, Ca6 OHIO) 20 F2d 36).

7)      There [are] numerous ways to commit the crime C.R.S. 18-8-615 and the Information did/does not state manner in which it was committed (People v Tucker, supra; Reimer-Gross Co v United States, supra; State v Prejean, supra).

8)      “An Act of Harassment” against or upon John Stipech the “Judge” in violation of section 18-8-615, C.R.S.” is a mere recitation of statutory language in violation of constitution, the statutes, the rules and case law failing to meet fundamental fairness (United States v Wiffen, supra).

9)      In People v Zupancic, 192 Colo 231, 557 P2d 1195 (1976) the Supreme Court reaffirmed a defendant’s right to be informed with reasonable certainty of the nature of the charges against him by requiring {196 Colo 292} that an indictment answer the questions of “who, what, where and how” (People v Joseph, supra; People v Tucker, supra; People v Steiner, supra) and in cases where the acts constituting the offense are not adequately described by the statute (see Schneider v People, 30 Colo 493, 71 P369 (1903); Russell v United States 369 US 749, 82 S Ct 1038, 8 L Ed 2d 240 (1961)).

D.  CONCLUSION

The Defendant hereby begs of the honorable court to sustain Demurrer (see Kaufman v Buckley, 285 Mass 83, 188 NE 607).  The Information case 10CR3690 and 11SA212 is FATALLY DEFECTIVE lacking fundamental fairness and is insufficient in law failing to state charge of public offense and failing legal requirements for PROBABLE CAUSE, warrant and prosecution in violation of Billy bob Bramscher’s substantive [and procedural] rights including Due Process, Justice and Liberty.

~BbB~

As I have written previously, “I am the victim of a ‘War of Attrition’ and truly thankful I was well versed on The Art of War by Sun Tzu.

01/30/2012:  Trial started on January 30, 2012 ending on February 6, 2012 and as my own lawyer (pro se) I was found “NOT GUILTY” by a jury of my peers. At this time, I was charged with C.R.S. 18-8-615 via 18-9-111(1)(e) and the mens rea was changed to “Specific Intent” instead of “Knowingly” as incorrectly alleged for over thirteen (13) months.

In my jury trial, the Defendant’s Theory of Defense, provided to the Jury:

“It is the Defendant’s theory of defense that the prosecution of this case was based upon retaliation by the City of Westminster. The Defendant contends that he was exercising his First Amendment rights of free speech and to redress grievances he had with the City of Westminster and that this prosecution is based on bad faith investigation, legal harassment and retaliation against him Defendant for exercising his First Amendment Rights.”

I am Billy bob Bramscher and I am a victim of bullying, bad-faith investigation, vindictive prosecution, malicious prosecution, First Amendment Retaliation and Civil Rights violations by the City of Westminster, Westminster Police Department, Westminster Municipal Court, Adams County/District Court, Adams County District Attorney, Colorado Public Defender/Alternative Defense Counsel and others!!!

~Aloha

~Billy bob Bramscher

~BbB~

https://www.facebook.com/BlueDakini

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One thought on “IN RE Bramscher Demurrer

  1. Pingback: Jeff Sessions Benedict Arnold!!! | Lonesome Lozer

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