Appeal from Circuit Court, Linn County. Courtney R. Johns, Judge. No. 41824.
John W. Osburn, Solicitor General, Salem, argued the cause for appellant. With him on the brief was Lee Johnson, Attorney General, Salem.
Frederick L. Decker, Albany, argued the cause and filed the brief for respondent.
Schwab, Chief Judge, and Foley and Fort, Judges.
Defendant was charged with murder, ORS 163.115 (1)(a), by the following indictment:
"* * * [William Ernest Taylor] is accused by the Grand Jury of the County of Linn by this indictment of the crime of Murder committed as follows:
"The said WILLIAM ERNEST TAYLOR on the 18th day of November A.D. 1972, in the County of Linn, State of Oregon, then and there being, did unlawfully and intentionally cause the death of another human being, to wit: Delores M. Gilbert, by stabbing the said Delores M. Gilbert with a knife, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."
Defendant demurred to the indictment. The trial court sustained the demurrer. The state appeals.
The relevant criminal statutes provide:
"(1) A person commits criminal homicide if, without justification or excuse, he intentionally, knowingly, recklessly or with criminal negligence causes the death of another human being.
"(2) 'Criminal homicide' is murder, manslaughter or criminally negligent homicide.
"* * *." ORS 163.005. (Emphasis supplied.)
"(1) Except as provided in ORS 163.125, criminal homicide ...