This is a motion by the defendant Thomas Gr. Walker to dismiss an appeal taken by the state from a judgment of acquittal in a criminal action.
The defendant was indicted jointly with Richard L. Berry for a violation of Oregon Laws 1941, ch 439 § 3 (now ORS 163.090, as amended by Oregon Laws 1953, ch 676), which defines the crime of “negligent homicide”, and was tried separately. Before the completion of the state’s case in chief his counsel interposed the following motion:
“MR. BERNARD: May it please your Honor, at this time the defendant will object to the introduction of any further evidence in this case on the ground that the statute under which this indictment is drawn, being 23-410A Chapter 439, that the law of Oregon for 1941 is void in that it is too indefinite, uncertain and vague to apprise a person as to what acts are prohibited; that it is invalid and contrary to Section 11, Article 1 of the Oregon Constitution; that it further contravenes the Fourteenth Amendment to the Constitution of the United States in that it subjects a person to prosecution under an indefinite statute end thereby depriving *71him of due process of law under the Fourteenth Amendment.
“I object to the introduction of any evidence on the further ground that the indictment itself does not state the facts sufficient to constitute an offense.”
The court sustained the motion in the following language:
“* * * the Court is sustaining the demurrer to the indictment on the ground that it is unconstitutional, also sustaining the demurrer to submission of evidence. The indictment does not constitute crime.”
The court thereupon directed the jury to find the defendant not guilty, and, upon the verdict so returned, judgment of acquittal was entered. The ground of the motion to dismiss is that an appeal by the state from such a judgment is not authorized by statute. The pertinent provisions of OES are the following:
138.020. “Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in the cases prescribed in this chapter, and not otherwise.”
138.060. “The state may take an appeal to the Supreme Court from a judgment for the defendant on a demurrer to the indictment or from an order of the court arresting the judgment.”
135.610. “The demurrer shall be put in, in open court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.”
135.620. “The demurrer shall be in writing, signed by the defendant or his attorney and filed. It shall distinctly specify the ground of objection to the indictment or it may be disregarded.”
135.630. “The defendant may demur to the indictment when it appears upon the face thereof that: * * *
*72“(4) The facts stated do not constitute a crime.”
135.640. “When the objections mentioned in ORS 135.630 appear upon the face of the indictment, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at the trial, under the plea of not guilty and in arrest of judgment.”
We think that the motion to dismiss is not well taken. The objection to the introduction of further evidence on the grounds that the statute on which the prosecution was based is unconstitutional and that the indictment did not state facts sufficient to constitute a crime is in effect a demurrer upon the latter ground. City of Portland v. Stevens, 180 Or 514, 522, 178 P2d 175. The right of the state to appeal granted by ORS 138.060 is not limited to those cases in which a demurrer in writing is filed pursuant to §§ 135.610 and 135.620. The objection o.f the defendant to the introduction of testimony served precisely the same purpose as a demurrer, namely, to challenge the sufficiency of the indictment. The intention of § 138.060 is to authorize the state to bring to this court the question of the correctness of the court’s ruling sustaining such a challenge. If this were not so the defendant could cut off the state’s right of appeal by the simple expedient of postponing the attack on the indictment until after a jury had been impaneled and the state had called a witness to the stand. We cannot believe that the statute is so limited in its meaning.
So far as we are advised, there are no decisions passing directly on the question. But in State v. Rickenberg, 58 Utah 270, 198 P767, the court, acting under a statute like ours, entertained the state’s appeal and *73reversed the judgment in a case in which the question of the sufficiency of the indictment was raised on the trial by the defendant’s objection to the introduction of testimony, just as was done in the present case. The court treated the objection as a demurrer to the indictment. In State v. Kruger, 34 Nev 302, 122 P 483, the record disclosed, according to the court’s opinion, that the demurrer “was not interposed until upon the trial after the state had offered its evidence and rested.” Nevada authorizes an appeal by the state from a judgment for defendant on demurrer to the indictment and also has a statute similar to ORS 135.640 permitting the objection to the jurisdiction of the court over the subject of the indictment or that the facts stated do not constitute a crime to be taken at the trial under the plea of not guilty. In the case cited the court took jurisdiction of an appeal by the state from an order sustaining the demurrer and reversed the judgment.
In our opinion any procedure by which the defendant is permitted to challenge the indictment because it does not state facts sufficient to constitute a crime, is in effect a demurrer to the indictment, and ORS 138.060 was intended to apply whenever such procedure is invoked and the circuit court sustains the challenge and enters a judgment discharging the defendant.
The motion is denied.
*74Wayne A. Williamson and Mautz, Souther, Spaulding, DenecJce & Kinsey, of Portland, for the motion. John B. McGourt, District Attorney for Multnomah County, and Charles E. Raymond and J. Raymond Carskadon, Deputy District Attorneys for Multnomah County, of Portland, contra. LPSK, J.This is a motion by the defendant Richard L. Berry to dismiss an appeal taken by the state from a judgment of acquittal in a criminal action. The defendant was indicted jointly with Thomas G-. Walker for violation of Oregon Laws 1941, ch 439 § 3 (now ORS 163.090, as amended by Oregon Laws 1953, ch 676), which defines the crime of “negligent homicide”, and was tried separately.
As in the trial of Walker, the defendant Berry objected to the introduction of evidence by the state because the indictment was insufficient. The grounds assigned in support of the motion were the same as in the Walker ease, and the court sustained the objection and directed a verdict of acquittal.
The motion to dismiss presents the identical question this day decided in the Walker case. For the reasons stated in our opinion in that case the motion is denied.