2015 ORS 135.630¹
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 (Joinder of counts and charges). 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 (Joinder of counts and charges) 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)

Law Review Cita­tions

53 OLR 102 (1973)

Law Review Cita­tions

2 EL 230-274 (1971)


1 Legislative Counsel Committee, CHAPTER 135—Arraignment and Pretrial Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors135.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 135, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano135.­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.