dissenting.
I disagree with the majority on the threshold procedural issue and I would affirm on the merits.
Timeliness
The majority correctly notes that ORS lSS.blOd)1 regulates the time for filing a demurrer. It does not absolutely bar demurrers after arraignment. Rather, it grants discretion to the trial court to allow demurrers thereafter. Where, as here, the defendant is not represented by counsel at arraignment, it would be arbitrary to deny a demurrer solely on the ground that *452it was post-arraignment. That circumstance is sufficient to authorize the trial judge to allow the filing of a demurrer "at such other time as may be allowed to the defendant for that purpose.” The majority holds, in the absence of special circumstances shown by defendant in the record, that the court had no authority to exercise discretion to allow the demurrer after the entry of plea. I see no such bar in the statute. Moreover, although the majority notes that there are no special circumstances established, we are reviewing a discretionary ruling by the trial court, we do not know the circumstances that existed at the time of plea, and we have no reason to believe that the statutorily authorized discretion was exercised contrary to legal principle. I am aware of nothing in the record to indicate that the state has been prejudiced by untimely filing. In my opinion, the majority has reversed a discretionary ruling without pointing out reason in the record to do so.
The Merits
Turning to the merits, the demurrer is brought under ORS 135.630(6), which provides:
"The defendant may demur to the accusatory instrument when it appears upon the face thereof:
<tíjí ijc i*c
"(6) That the accusatory instrument is not definite and certain.”
The term "definite and certain” is a relative term; the accusatory instrument must be sufficiently definite and certain to accomplish the purposes of an accusatory instrument. Those purposes are threefold: notice, double jeopardy protection and statement of a crime. As the Supreme Court said in State v. Smith, 182 Or 497, 500-501, 188 P2d 998 (1948):
"* * * The objects of an indictment are (1) to inform the accused of the nature and character of the criminal offense with which he is charged with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the accused to avail himself of his conviction or acquittal *453thereof in the event that he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction.” (Citations omitted.)
See also State v. Sanders, 280 Or 685, 687-88, 572 P2d 1307 (1977).
We have previously surveyed the Oregon cases on this subject and distilled the rule that an indictment in the language of the statute is sufficient to state a crime, but where statutory language is not precise it must be implemented so as to leave no doubt in the minds of the accused and the court as to the exact offense intended to be charged. State v. Jim/White, 13 Or App 201, 217, 508 P2d 462 rev den (1973). Broad statutory terms are sufficient if they are further defined in the code or commentary to the code and thus made words of art with specific meaning. In such cases, general terms accomplish the purposes of the accusatory instrument: an allegation of "theft,” for example, is sufficient. State v. House, 37 Or App 131, 134, 586 P2d 388 (1978); State v. Jim/White, 13 Or Ap at 218-21.
This complaint is brought under ORS 166.025(l)(a), which provides:
"A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
"(a) engages in fighting or in violent, tumultuous or threatening behavior * *
The statutory terms incorporated into the complaint are not sufficiently definite and certain in themselves to describe the conduct which defendant must defend against or to provide a documentary basis for a subsequent plea of former jeopardy. There is no statutory definition of the terms which we may incorporate into the complaint by reference. The explanation in the commentary does not enable us to regard *454the words as terms of art. Rather, the commentary says simply:
"Paragraph (a) is directed at conduct within the traditional common law concept of breach of the peace.” Commentary, Proposed Oregon Criminal Code, § 220 (1970).
The commentary, therefore, explains the general terms by reference to another general term, "breach of the peace,” which, had that been pleaded, would require additional factual allegations for sufficiency.
Therefore, because the words of the complaint standing alone or by reference to the code and commentary, fail to specify the conduct which the state alleges to be forbidden by the statute, the demurrer for lack of definiteness and certainty was properly sustained.
For these reasons I would affirm the sustaining of the demurrer.
ORS 135.610(1) provides:
"The demurrer shall be entered either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.”