concurring.
I agree with the majority that the trial court erred in allowing defendant’s demurrer. However, we should reverse solely on the ground that the indictment is legally sufficient to charge defendant with the crime of bribe giving. We should not, as the majority does, reach defendant’s constitutional argument, because it is based on facts outside the indictment.
In three counts, the indictment alleges that defendant did ‘ ‘knowingly offer or confer’ ’ monies on three Yamhill County Commissioners “with intent to influence the said public servant’s action, vote, opinion, judgment, decision or *214exercise of discretion in said public servant’s official capacity.” This language sufficiently charges defendant with the crime outlined in ORS 162.015(1), which provides:
“A person commits the crime of bribe giving if the person offers, confers or agrees to confer any pecuniary benefit upon a public servant with the intent to influence the public servant’s vote, opinion, judgment, action, decision or exercise of discretion in an official capacity.”
“Pecuniary benefit” is defined as
“gain or advantage to the beneficiary or to a third person pursuant to the desire or consent of the beneficiary, in the form of money, property, commercial interests or economic gain, but does not include a political campaign contribution reported in accordance with ORS chapter 260.” ORS 162.005. (Emphasis supplied.)
ORS 135.630 says that a defendant may demur to the accusatory instrument when “it appears upon the face thereof’ that the accusatory instrument is legally insufficient. A demurrer cannot be sustained on the basis of facts extrinsic to those contained in the indictment. State v. Waldo, 93 Or App 613, 763 P2d 417 (1988). Defendant’s demurrer is predicated on the claim that the pecuniary benefit conferred was a campaign contribution. None of the allegations in the accusatory instrument indicate that the pecuniary benefits conferred by defendant were campaign contributions. Consequently, defendant must rely on extrinsic facts to support his demurrer on his asserted constitutional grounds.
Nevertheless, the majority says it is permissible for defendant to challenge the constitutionality of the statute by demurrer because it is overbroad, even though the indictment does not allege on its face that defendant engaged in constitutionally protected conduct. 121 Or App at 211. To support its holding, the majority relies on State v. Spencer, 289 Or 225, 611 P2d 1147 (1980), State v. Pyritz, 90 Or App 601, 752 P2d 1310 (1988), and State v. Albee, 118 Or App 212, 847 P2d 858 (1993). These cases do not support the majority’s proposition. They hold that a defendant may facially challenge the constitutionality of a statute whose language is incorporated in the charging instrument.
In State v. Spencer, supra, the complaint charged the defendant with disorderly conduct. It alleged that he “did *215unlawfully and recklessly create a risk of public inconvenience, annoyance and alarm by using abusive and obscene language in a public place.” The statutory basis for that charge, former ORS 166.025(l)(c), provided:
“A person commits the crime of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
“Uses abusive or obscene language, or makes an obscene gesture in a public place; * *
In State v. Pyritz, supra, the defendant was accused of violating ORS 167.222, which provides:
“A person commits the offense of frequenting a place where controlled substances are used if the person keeps, maintains, frequents, or remains at a place, while knowingly permitting persons to use controlled substances in such place
The complaint charged that the defendant “did unlawfully and knowingly frequent and remain at [a specified] place where the defendant knowingly permitted persons to use, keep and sell illegal controlled substances * * *.”
In Albee, the defendant contended that ORS 167.355 was overbroad, in violation of the First Amendment and Article I, section 26, of the Oregon Constitution, because it could be read to restrict persons from meeting to discuss cockfighting. Defendant was among the spectators when a cockfight was about to begin. His alleged conduct fell expressly within the prohibition of ORS 167.355(l)(b) which provides that a person violates ORS 167.355 if he is “present as a spectator at an exhibition of fighting or preparations thereto.” We said: “Because defendant’s challenge allegedly involves conduct prohibited by the First Amendment, defendant may make a facial challenge on this issue.” 118 Or App at 217. We then held that it was unnecessary to decide whether a restriction on gathering to discuss cockfighting would be a restriction on constitutionally protected conduct, because the statute requires more than just gathering to discuss cockfighting to constitute participation in that activity. The majority is wrong when it says that the holding in Albee means that it is permissible for a defendant to challenge *216the constitutionality of a statute when the indictment does not allege that the challenged portion of the statute is implicated. Albee is a case in which the conduct charged in the accusatory instrument did implicate the challenged statute.
The majority says, “[bjecause ‘pecuniary benefit’ is part of ORS 162.015(1), the definition of that term must be read into the bribery statute.” 121 Or App at 210. That statement fails to recognize that “pecuniary benefit” as defined under ORS 162.005 can be other than a campaign contribution and that the state has not alleged that defendant conferred a campaign contribution. It may be that there will be no evidence that the alleged bribe was a campaign contribution. The granting of defendant’s demurrer based on extrinsic facts preempted the state from proving the allegations of the indictment. The issue of whether ORS 162.015(1) is constitutional when the pecuniary benefit is a political campaign contribution is not ripe for decision until the fact that the benefit conferred was a campaign contribution is put in issue. We should not decide the constitutionality of a part of a statute that is not before us.
Richardson, C. J., and Deits and Riggs, JJ., join in this concurring opinion.