2015 ORS 132.540¹
Sufficiency of indictment
  • previous convictions
  • use of statutory language

(1) The indictment is sufficient if it can be understood therefrom that:

(a) The defendant is named, or if the name of the defendant cannot be discovered, that the defendant is described by a fictitious name, with the statement that the real name of the defendant is to the jury unknown.

(b) The crime was committed within the jurisdiction of the court, except where, as provided by law, the act, though done without the county in which the court is held, is triable therein.

(c) The crime was committed at some time prior to the finding of the indictment and within the time limited by law for the commencement of an action therefor.

(2) Except as provided in ORS 136.765 (Notice to defendant) (1) and subsection (3) of this section, the indictment may not contain allegations that the defendant has previously been convicted of the violation of any statute that may subject the defendant to enhanced penalties.

(3) The indictment must allege that the defendant has previously been convicted of an offense when the previous conviction constitutes a material element of the charged offense.

(4) Words used in a statute to define a crime need not be strictly pursued in the indictment, but other words conveying the same meaning may be used. [Amended by 1957 c.657 §1; 1973 c.836 §57; 2009 c.180 §1]

Notes of Decisions

Indict­ment was not void where it could reasonably be determined from its face that the finding of the indict­ment occurred between the date of the crime alleged and the date of filing. State v. Perry, 12 Or App 585, 507 P2d 58 (1973), Sup Ct review denied

An indict­ment in the language of the statute creating the of­fense is sufficient if it alleges all the ele­ments of the crime that must be proven for con­vic­­tion, but in situa­tions where statutory language is not precise it must be supple­mented so as to leave no doubt as to the exact nature charged. State v. Cannon, 17 Or App 379, 521 P2d 1326 (1974), Sup Ct review denied

Where indict­ment dated November 7, 1977, alleged crim­i­nal con­duct committed "through" November 1974, por­tion of November, 1974, after November 7 was a period within statute of limita­tions and therefore indict­ment was timely. State v. Scott, 48 Or App 623, 617 P2d 681 (1980)

Without allega­tion of facts indicating tolling of period of limita­tion, it cannot be understood from face of indict­ment that crime was committed within statute of limita­tions and it was, therefore, error to deny demurrer. State v. Livingston, 73 Or App 551, 699 P2d 1131 (1985)

Indict­ment containing two dates on which purportedly returned, one inside and one outside Statute of Limita­tions, does not satisfy statutory require­ment that indict­ment show pros­e­cu­­tion was commenced within period of limita­tion. State v. Bovee, 76 Or App 572, 710 P2d 786 (1985), Sup Ct review denied

Where proof of pre­vi­ous con­vic­­tion determines whether of­fense is felony or misdemeanor, existence of pre­vi­ous con­vic­­tion constitutes ma­te­ri­al ele­ment of crime charged. State v. Reynolds, 183 Or App 245, 51 P3d 684 (2002), Sup Ct review denied

Law Review Cita­tions

2 EL 230-274 (1971)

Chapter 132

Notes of Decisions

A circuit court has no authority to order the wholesale recorda­tion and preserva­tion of grand jury testimony under either statutory or common law. State ex rel Johnson v. Roth, 276 Or 883, 557 P2d 230 (1976)

Where defendant was found in contempt for failure to comply with grand jury sub­poe­na, circuit court had no authority to examine grand jury testimony or discuss its content for the sole purpose of determining the sen­tence to impose. State v. Applegate, 41 Or App 287, 597 P2d 1290 (1979), Sup Ct review denied


1 Legislative Counsel Committee, CHAPTER 132—Grand Jury, Indictments and Other Accusatory Instruments, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors132.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 132, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano132.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.