On the passing of the Judicature Act of 1875 the procedure with respect to demurrers in civil cases was amended, and, subsequently, by the Rules of the Supreme Court, Order XXV. demurrers were abolished and a more summary process for getting rid of pleadings which showed no reasonable cause of action or defence was adopted, called proceedings in lieu of demurrer.
Demurrer in criminal cases still exists, but is now seldom resorted to.
Demurrers are still in constant
use in the United States.
Demurrer in criminal cases
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=or&vol=A106682&invol=1
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STATE OF OREGON
Defendant demurrered to those
counts on two alternative grounds.
First, defendant asserted that "the facts stated do not constitute an offense,"The state responded that the challenged counts were sufficient in both respects in that they pleaded the offenses in the language of the underlying statutes and that, to the extent that the indictment did not describe defendant's conduct with particularity, that was a matter properly addressed through pretrial discovery. The state particularly invoked our holdings in State v. Strandquist, 57 Or App 404, 644 P2d 658, rev den 293 Or 483 (1982), and State v. Caffee, 116 Or App 23, 840 P2d 720 (1992), rev den 315 Or 312 (1993).
ORS 135.630(4),
because they did not allege "any acts on the part of the defendant."Second, defendant asserted that those counts were not definite and certain in that they failed to set out "the acts constituting the offense in ordinary and concise language."
ORS 132.550(7). See ORS 135.630(2)
The trial court denied defendant's demurrer that counts 3, 4, and 5 failed to allege the essential elements of the offenses.
However, the court allowed defendant's demurrer that those counts were not sufficiently definite and certain:
"ORS 132.550(7) requires that an indictment contain a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. Article I, section 11 of the Oregon Constitution gives the defendant the right to demand the nature and cause of the accusation against him. Defendant demurred to the indictment in a timely manner and asked for specificity with regards to Counts 3, 4 and 5.
"The state used to plead conduct in assault cases but no longer does so. It has not shown that it would be prejudiced by specifying the conduct of the defendant that caused the results alleged other than its claim that it might allege one act but prove something else. However, without specificity, the defendant may prepare a defense for one act and find out at trial that the state will prove something else.
"In balancing the rights of the defendant with the imposition on the state, I conclude that it is reasonable for the state to allege the acts that caused the results in Counts 3, 4 and 5. Motion one is allowed. The state may replead Counts 3, 4 and 5."
The court then entered an "Order on Defendant's Demurrer," allowing the demurrer and granting the state leave to resubmit the case to the grand jury. The state opted not to resubmit to the grand jury, and appeals from that order.
At the outset, we must address
a jurisdictional issue. Defendant contends that the state cannot appeal
from a pretrial order sustaining a demurrer under ORS 135.630(2)--and,
particularly, that such an appeal is not authorized by ORS 138.060(1).
We disagree. See State v. Robertson, 293 Or 402, 404-07, 649 P2d 569 (1982).
Basic Steps: (4) Answer or demurrer by the defendant (a
demurrer is a special pleading that basically says even if all of the allegations
raised in the complaint are true, the plaintiff is not entitled to a remedy
through a court proceeding)
---> http://law.freeadvice.com/general_practice/lawsuit_steps.htm
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Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to allow changes to make the original complaint good.
An amendment to the complaint
cannot always overcome a demurrer, as in a case filed after the time allowed
by law to bring a suit. If after amendment the complaint is still not legally
good, a demurrer will be granted sustained. In rare occasions, a demurrer
can be used to attack an answer to a complaint. Some states have substituted
a motion to dismiss for failure to state a cause of action for the demurrer.
A written statement by a defendant that the plaintiff's
complaint is insufficient to state a legal cause of action upon which relief
can be granted.
Most states and the federal courts
require a demurrer to be made at the time an answer is due.
demurrer
---> http://www.thefreedictionary.com/demurrer
A. Definitions. As used in this section, the following terms shall have the meanings indicated:
LOITERING -- Remaining idle in essentially one location, and includes the concepts of spending time idly, loafing or walking about aimlessly, and also includes the colloquial expression "hanging around."B. Certain types of loitering prohibited.PARENT or GUARDIAN -- Includes any adult person having care or custody of a minor, whether by reason of blood relationship, the order of any court or otherwise.
PUBLIC PLACE -- Any place to which the public has access, including any street, highway, road, alley or sidewalk. It shall also include the front or the neighborhood of any shop, store, restaurant, tavern or other place of business and public grounds, areas and parks, as well as parking lots or other vacant private property not owned by or under the control of the person charged with violating this chapter, or, in the case of a minor, not owned by or under the control of his or her parent or guardian.
(1) No person shall loiter in a public place in such a manner as to:
(a) Create or cause to be created a danger or a breach of the peace.(b) Create or cause to be created any disturbance or annoyance to the comfort and repose of any person.
(c) Obstruct the free passage of pedestrians or vehicles.
(d) Obstruct, molest or interfere with any person lawfully in any public place. This subsection shall include the making of unsolicited remarks of an offensive, disgusting or insulting nature of which are calculated to annoy or disturb the person to whom or in whose hearing they are made.
(2) No person shall loiter on the streets or in any public place or in or upon any private property not his or her own, within the limits of the Borough of Glassboro, being under the influence of intoxicating liquors.(3) No person shall loiter on the streets or other public places of said Borough, and no person shall, on said streets or in such public places or from any private property or in any private or public conveyances within said Borough, indulge in and utter loud and offensive or indecent language, or shall address or make audible any offensive remarks or comments upon any person passing along such streets or public places or in any public or private conveyances or upon private property.
(4) No person shall obstruct or interfere with any person or persons lawfully being in or upon such streets or public places or such private or public conveyances or upon private property.
C. Loitering by minors. No
parent or guardian of a minor under the age of 18 years shall knowingly
permit his or her minor to loiter in violation of this chapter.
D. Discretion of police. Whenever any police officer shall, in the exercise of reasonable judgment, decide that the presence of any person in any public place is causing or is likely to cause any of the conditions listed above, he or she may, if he or she deems it necessary for the preservation of the public peace and safety, order that person to leave the place. Any person who shall refuse to leave after being ordered to do so by a police officer shall be guilty of a violation of this chapter.
E. Violations and penalties.
(1) Notice of violation. Whenever any minor under the age of 18 years is charged with a violation of this chapter, his or her parent or guardian shall be notified of this fact by the Chief of Police or by any other person designated by him or her to give such notice.(2) Repeated violations. If at any time within 30 days following the giving of notice as provided above, the minor to whom such notice relates again violates this chapter, it shall be presumed in the absence of evidence to me contrary that the minor did so with knowledge and permission of his or her parent or guardian.
(3) Violations and penalties. Any person violating any of the provisions of this chapter shall, upon conviction, be punished by one or more of the following: a fine not less than $100 and not more than $1,000; or by imprisonment not exceeding 90 days or by a period of community service not to exceed 90 days, or both, in the discretion of the court.
In violation of (one charge only) [Ordinance No.] 354-4
Glassboro Patrolman J. Jones
#962
Date Summons Issued: 08/01/2004
