Arraignment and Pretrial Provisions

ORS 135.630
Grounds of demurrer


The defendant may demur to the accusatory instrument when it appears upon the face thereof:

(1)

If the accusatory instrument is an indictment, that the grand jury by which it was found had no legal authority to inquire into the crime charged because the same is not triable within the county;

(2)

If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 (Forms of pleadings) to 132.560 (Joinder of counts and charges), 135.713 (Necessity of stating presumptions of law and matters judicially noticed), 135.715 (Effect of nonprejudicial defects in form of accusatory instrument), 135.717 (Time of crime) to 135.737 (Perjury), 135.740 (Construction of words and phrases used) and 135.743 (Fictitious or erroneous name);

(3)

That the accusatory instrument charges more than one offense not separately stated;

(4)

That the facts stated do not constitute an offense;

(5)

That the accusatory instrument contains matter which, if true, would constitute a legal justification or excuse of the offense charged or other legal bar to the action; or

(6)

That the accusatory instrument is not definite and certain. [Amended by 1973 c.836 §184]

Notes of Decisions

Where there is a general provision defining the elements of an offense, neither the indictment nor the proof need negative exceptions. State v. Alexander, 6 Or App 526, 487 P2d 1151 (1971)

Failure to demur to indictment waives all objections concerning sufficiency of indictment as to definiteness and certainty. State v. Kennedy, 6 Or App 552, 488 P2d 819 (1971), Sup Ct review denied

Inclusion of count identifying lesser included offense committed as part of same act did not constitute charging of two crimes. State v. McCauley, 8 Or App 571, 494 P2d 438 (1972), Sup Ct review denied

This section must be read in conjunction with ORS 132.560. State v. Norton, 9 Or App 595, 497 P2d 680 (1972), Sup Ct review denied

Identity of persons connected with criminal offense need not be stated in indictment unless constituting essential element of crime. State v. Shadley/Spencer/Rowe, 16 Or App 113, 517 P2d 324 (1973); State v. Fitzpatrick, 149 Or App 246, 942 P2d 819 (1997)

Whether complaint is "definite and certain" depends on whether it states acts in ordinary and concise language so that person of common understanding would know what was intended. State v. Johns, 20 Or App 249, 531 P2d 282 (1975)

Where there was no prison rule prohibiting prisoners from using telephones without proper authority, inmate's admission to Discipline Committee that he had wrongly used telephone did not establish existence of such rule, and did not bar inmate from challenging existence of rule for first time on appeal. Haller v. OSP, 31 Or App 461, 570 P2d 983 (1977)

Where complaint charging criminal mischief alleged damage to multiple parcels of property arising from same episode, and it was impossible to determine from face of complaint how many property owners were involved, complaint alleged more than one offense not separately stated. State v. Sweet, 46 Or App 31, 610 P2d 310 (1980)

Where defendant's theory supporting demurrer required analysis of facts extrinsic to indictment, demurrer could not be sustained. State v. Waldo, 93 Or App 613, 763 P2d 417 (1988)

Where two counts of indictment did not designate county in which offense was committed, court erred in not granting demurrer. State v. Dunn, 99 Or App 519, 783 P2d 29 (1989), Sup Ct review denied

Although underlying crime of robbery requires intentional, not just knowing, use of force, where indictment sufficiently alleges intent elsewhere, indictments for aggravated murder related to robbery were not defective for using term "knowingly" in reference to use of physical force. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Trial court may not consider facts not alleged in complaint when ruling on demurrer. State v. Reed, 116 Or App 58, 840 P2d 723 (1992)

Demurrer based on ground that alleged criminal conduct occurred outside applicable statute of limitations is claim that indictment contains matter constituting justification or bar, not claim that facts stated do not constitute offense. State v. Wimber, 315 Or 103, 843 P2d 424 (1992)

Attempt to use motion in arrest of judgment to raise constitutional claim was improper and did not preserve claim for appellate review. State v. Bockorny, 124 Or App 585, 863 P2d 1296 (1993), Sup Ct review denied

Where examination of discovery material did not allow defendant to ascertain which facts indictment relied on, dismissal of indictment was improper because defect was not apparent on face of indictment. State v. Morgan, 151 Or App 750, 951 P2d 187 (1997)

Whether indictment substantially conforming to statutory language is subject to demurrer based on lack of specificity depends on whether discovery is adequate to inform defendant of specific conduct being alleged. State v. Wright, 167 Or App 297, 999 P2d 1220 (2000), modified 169 Or App 78, 7 P3d 738 (2000), Sup Ct review denied

Defendant may file demurrer on grounds indictment fails to state facts constituting charged offense, notwithstanding that facts stated might constitute different offense. State v. Hankins, 342 Or 258, 151 P3d 149 (2007)

Where state failed to allege in indictment basis for joinder of crimes in language of ORS 132.560 or to allege facts sufficient to establish compliance with that statute, it was error for court to deny defendant's demurrer challenging that indictment. State v. Poston, 277 Or App 137, 370 P3d 904 (2016), Sup Ct review denied

Because court could not say that, if defendant had been indicted and tried separately on prostitution-related, robbery, assault and witness-tampering charges, all evidence that was presented at trial would have been admissible in any one of such hypothetical trials, disallowance of defendant's demurrer under this section to joinder of charges was not harmless. State v. Clardy, 286 Or App 745, 401 P3d 1188 (2017), modified 288 Or App 163, 406 P3d 219 (2017)

Law Review Citations

53 OLR 102 (1973)

§§ 135.610 to 135.700

Law Review Citations

2 EL 230-274 (1971)


Source

Last accessed
Jun. 26, 2021