concurring.
I concur only in the result reached by the majority. We granted the petition for review in this case to consider the *83constitutional issue decided by the Court of Appeals. I would affirm the Court of Appeals on that issue. It is quite true that a court should not decide constitutional issues when analysis of the law shows the constitutional decision to be unnecessary, but that is not this case. In this case defendant, by his demurrer, maintained that he should not have to stand trial under a statute that is unconstitutional as enacted, not only as applied to him. Cf. State v. Robertson, 293 Or 402, 649 P2d 569 (1982). The majority opinion in effect holds that a defendant in a criminal case must be found guilty before he can obtain a ruling on his previously filed demurrer challenging the constitutionality of the statute under which he is charged. That defies logic.
Linde, J., joins in this concurring opinion.