dissenting.
I disagree with the majority’s conclusion that the trial judge erred in overruling defendant’s demurrer to the indictment. Therefore, I respectfully dissent.
This is a case of first impression in Oregon. There is authority from other states that supports the majority’s conclusion that a charging instrument is defective if it does not allege facts tolling the Statute of Limitations. However, there is also federal and state authority that supports the conclusion that the question of limitations is merely a matter of proof at trial. See Annot, “Necessity of Alleging in Indictment or Information Limitation-Tolling Facts,” 52 ALR3d 922.1 find the latter authority more persuasive.
*556The trend in Oregon has been to require less specificity in charging instruments because of our very liberal discovery practice. In State v. Keys, 25 Or App 15, 21, 540 P2d 205, rev den (1976), Chief Judge Schwab explained:
“The rationale in the cases has been that, although the defendant has a constitutional right to notice, this need not be accomplished solely by the indictment. Notice can be based on the indictment plus the language of the relevant statute. Notice can be based on the indictment plus the relatively new criminal discovery statutes. And the ultimate form of notice is the prosecution’s evidence; we have held that if the defendant is genuinely surprised thereby, he is entitled to a continuance.”1
For that reason, the state should not be required to allege facts in a charging instrument that bring a case within a statutory exception that permits tolling of the limitations statute. Here, the trial judge required the state to prove, as an element of its case in chief, that the statute was, in fact, tolled.2 That should be sufficient.
Defendant’s second assignment of error contends that the trial judge erred in denying his motion to exclude certain evidence because of an alleged discovery violation. I would find no error. See State v. Wolfe, 273 Or 518, 542 P2d 482 (1975). Defendant’s third assignment of error contends that the trial judge erred in denying his motion for judgment of acquittal. Again, I would find no error. See State v. Kincaide, 43 Or App 73, 602 P2d 307 (1979). Accordingly, I would affirm defendant’s conviction.
See City of Portland v. Aziz, 47 Or App 937, 943, 615 P2d 1109 (1980); State v. Shadley/Spencer/Rowe, 16 Or App 113, 120, 517 P2d 324 (1973).
Defendant was extradited from Pennsylvania on December 8, 1983, for trial on the theft charge. The majority opinion states that the 1984 indictment alleged criminal acts different than those alleged in the 1981 indictment. However, the order dismissing the 1981 indictment provides in relevant part:
“It appearing to the court that said indictment was insufficient in the allegation charged and said defendant has subsequently been charged by way of indictment dated January 25,1984 on the within case numbers, charging the same facts and circumstances as the within indictment * * *.”
That language supports the state’s contention that the 1984 indictment is a continuation of the original prosecution and not a new prosecution for a different crime.