HOLMAN, J.
In 1953 defendant was convicted of kidnapping. At that time while unrepresented by counsel he waived his right to be indicted by the grand jury and consented to the filing of an information. He was then arraigned and pleaded guilty and was given a sentence of 25 3>uars.
Thereafter, defendant commenced proceedings in the nature of coram nobis. The trial court refused to assert jurisdiction, defendant appealed, and the circuit court’s ruling was affirmed. State v. Miller, 214 Or 208, 328 P2d 869 (1958). Subsequently, defendant filed habeas corpus proceedings which were dismissed, and he again appealed to this court. The dismissal was affirmed. Miller v. Gladden, 219 Or 538, 348 P2d 44 (1959). Defendant then brought a proceeding for post-conviction relief, claiming that he had not knowingty waived his right to be represented by counsel at the time of his plea of guilt. His request for relief ivas denied by the trial court. Hpon appeal, this [247]*247court set aside liis conviction and remanded him to the court of his conviction for further proceedings. Miller v. Gladden, 249 Or 51, 437 P2d 119 (1968).
Defendant was thereafter indicted by the grand jury in 1968 and charged with the identical crime. A demurrer based upon the statute of limitations was filed to the indictment. The demurrer was sustained. Thereafter, the state proceeded upon the 1953 information. Defendant contended that the information was invalid but his contention was denied. He subsequently appeared at a time set for the entering of a plea. At this time he refused to plead because he had not received a copy of the information after his plea of guilt was set aside. The court entered a plea of “not guilty” for him. Defendant then filed a demurrer to the information which was overruled on its merits. At this time he contended that he had not been arraigned. Although he and his attorney were present at all times during trial, they refused to participate. The jury returned a verdict of guilty, and this appeal is from that conviction.
Defendant contends that the 1953 information is of no validity and that the running of the statute of limitations prevents any new prosecution. He argues that the information is not valid because it was set aside by this court’s prior decision overturning his conviction. This court’s decision set aside his plea of guilt because he had not waived the aid of counsel at the time he pleaded. The decision did not and was not intended to invalidate the information.
Defendant also contends that the information is invalid for the same reason the plea was held invalid; i.e., because he had not waived counsel at the time he waived indictment by the grand jury. He does not [248]*248contend that he did not actually intend to waive indictment hut only that, as a matter of law, it was impossible for him to weigh the consequences and to make an intelligent choice without the advice of a lawyer. If waiver of indictment is a “critical stage” in the proceedings, he was entitled to be represented, prejudice is presumed, and his contention is correct. Hamilton v. Alabama, 368 US 52, 82 S Ct 157, 7 L Ed 2d 114 (1961).
Defendant’s right to be indicted by the grand jury before he can be prosecuted criminally is embodied in Art. VII (Amended), § 5, Constitution of Oregon.
Had defendant chosen to insist upon indictment, there is nothing that a lawyer could have done to represent him before the grand jury, because that is a closed and nonadversary proceeding. All that a lawyer could have done for him was warn him not to voluntarily testify in front of the grand jury where, while unrepresented, he would have been subject to questioning by the district attorney and the grand jurors. Commonwealth v. Phillips, 208 Pa Super 121, 220 A2d 345 (1966), was a ease where the relevant facts were similar to those here. In holding that waiver of grand jury was not a “critical stage” in criminal proceedings, the court said as follows:
“* * * The possibility that the grand jury would have ignored the bill of indictment, which possibility appellant could not have influenced in [250]*250the slightest, is not a right which is lost any more than the ‘right’ to remain unarrested is given up when a suspect voluntarily turns himself in to the police. * * 208 Pa Super at 130, 220 A2d at 349-350.
Defendant next contends that the 1953 information was invalidated by the state’s ineffective attempt to proceed by indictment in 1968. He argues that when the trial court sustained the demurrer, it was obligated by ORS 135.670② and 135.680③ to resubmit the matter to the grand jury or to dismiss the proceeding with prejudice. He claims that the new proceeding could not be abandoned and the old information resurrected. We hold that the provisions of the two statutes were not intended to apply to a situation like the present. The words of ORS 335.670, “* * * is a bar to another action for the same crime * * refer to a subsequent proceeding and not to a prior valid proceeding then pending which was interrupted by ineffective legal action.
Defendant next appears to contend that the statute of limitations, ORS 131.110(2),④ continued to run [251]*251despite the pendency of the information, and that the state had only the three-year limitation period in which to correct any defect in the original prosecution.
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HOLMAN, J.
In 1953 defendant was convicted of kidnapping. At that time while unrepresented by counsel he waived his right to be indicted by the grand jury and consented to the filing of an information. He was then arraigned and pleaded guilty and was given a sentence of 25 3>uars.
Thereafter, defendant commenced proceedings in the nature of coram nobis. The trial court refused to assert jurisdiction, defendant appealed, and the circuit court’s ruling was affirmed. State v. Miller, 214 Or 208, 328 P2d 869 (1958). Subsequently, defendant filed habeas corpus proceedings which were dismissed, and he again appealed to this court. The dismissal was affirmed. Miller v. Gladden, 219 Or 538, 348 P2d 44 (1959). Defendant then brought a proceeding for post-conviction relief, claiming that he had not knowingty waived his right to be represented by counsel at the time of his plea of guilt. His request for relief ivas denied by the trial court. Hpon appeal, this [247]*247court set aside liis conviction and remanded him to the court of his conviction for further proceedings. Miller v. Gladden, 249 Or 51, 437 P2d 119 (1968).
Defendant was thereafter indicted by the grand jury in 1968 and charged with the identical crime. A demurrer based upon the statute of limitations was filed to the indictment. The demurrer was sustained. Thereafter, the state proceeded upon the 1953 information. Defendant contended that the information was invalid but his contention was denied. He subsequently appeared at a time set for the entering of a plea. At this time he refused to plead because he had not received a copy of the information after his plea of guilt was set aside. The court entered a plea of “not guilty” for him. Defendant then filed a demurrer to the information which was overruled on its merits. At this time he contended that he had not been arraigned. Although he and his attorney were present at all times during trial, they refused to participate. The jury returned a verdict of guilty, and this appeal is from that conviction.
Defendant contends that the 1953 information is of no validity and that the running of the statute of limitations prevents any new prosecution. He argues that the information is not valid because it was set aside by this court’s prior decision overturning his conviction. This court’s decision set aside his plea of guilt because he had not waived the aid of counsel at the time he pleaded. The decision did not and was not intended to invalidate the information.
Defendant also contends that the information is invalid for the same reason the plea was held invalid; i.e., because he had not waived counsel at the time he waived indictment by the grand jury. He does not [248]*248contend that he did not actually intend to waive indictment hut only that, as a matter of law, it was impossible for him to weigh the consequences and to make an intelligent choice without the advice of a lawyer. If waiver of indictment is a “critical stage” in the proceedings, he was entitled to be represented, prejudice is presumed, and his contention is correct. Hamilton v. Alabama, 368 US 52, 82 S Ct 157, 7 L Ed 2d 114 (1961).
Defendant’s right to be indicted by the grand jury before he can be prosecuted criminally is embodied in Art. VII (Amended), § 5, Constitution of Oregon.
Had defendant chosen to insist upon indictment, there is nothing that a lawyer could have done to represent him before the grand jury, because that is a closed and nonadversary proceeding. All that a lawyer could have done for him was warn him not to voluntarily testify in front of the grand jury where, while unrepresented, he would have been subject to questioning by the district attorney and the grand jurors. Commonwealth v. Phillips, 208 Pa Super 121, 220 A2d 345 (1966), was a ease where the relevant facts were similar to those here. In holding that waiver of grand jury was not a “critical stage” in criminal proceedings, the court said as follows:
“* * * The possibility that the grand jury would have ignored the bill of indictment, which possibility appellant could not have influenced in [250]*250the slightest, is not a right which is lost any more than the ‘right’ to remain unarrested is given up when a suspect voluntarily turns himself in to the police. * * 208 Pa Super at 130, 220 A2d at 349-350.
Defendant next contends that the 1953 information was invalidated by the state’s ineffective attempt to proceed by indictment in 1968. He argues that when the trial court sustained the demurrer, it was obligated by ORS 135.670② and 135.680③ to resubmit the matter to the grand jury or to dismiss the proceeding with prejudice. He claims that the new proceeding could not be abandoned and the old information resurrected. We hold that the provisions of the two statutes were not intended to apply to a situation like the present. The words of ORS 335.670, “* * * is a bar to another action for the same crime * * refer to a subsequent proceeding and not to a prior valid proceeding then pending which was interrupted by ineffective legal action.
Defendant next appears to contend that the statute of limitations, ORS 131.110(2),④ continued to run [251]*251despite the pendency of the information, and that the state had only the three-year limitation period in which to correct any defect in the original prosecution. OES 131.130 provides that an action is commenced within the meaning of the statute of limitations “when the indictment is found and filed with the clerk of the court or, in cases triable without indictment, when the indictment or complaint is filed or lodged in the court or with the officer having jurisdiction of the action.” No mention is made of cases commenced by information. The statute was enacted in 1864 before the use of informations was permitted, and it has never changed. Because filing an information is a substitute proceeding for indictment, we construe the provision relative to indictment to cover the situation when indictment is waived and an information is used. Therefore, filing the information tolled the statute.
Defendant relies upon the following language found in the annotation at 90 ALR 452, 456:
“It is generally held that the return of an indictment or the filing of an information on which no valid conviction or judgment can be had will not operate to stop the running of the Statute of Limitations pending the return or filing of another indictment or information, in the absence of a statute expressly so providing. * * ®.”
Defendant attempts to equate the language “no valid conviction can be had” with “no valid conviction was had.” We do not so equate the language. The 1953 information was valid and its filing tolled the statute. It is still pending and has never been dismissed. De[252]*252fendant attempts to rely on State v. Silver, 239 Or 459, 398 P2d 178 (1965), in which an indictment was returned within the time permitted by the statute but was later dismissed. A new indictment was returned after the time permitted by the statute had elapsed. The court held that the new indictment was barred by the statute of limitations because the statute had not been tolled by the first indictment. The difference in the present case is plain. The original proceeding which was commenced by information within the period permitted by the statute was never dismissed.
Defendant admits in bis statement of facts that he wTas arraigned in 1953. However, he argues that he was never “arraigned”. We presume he means that he was never rearraigned after his plea of guilt was set aside. This raises the question whether under Oregon law he was required, at the time of his unrepresented 1953 arraignment, either to avail himself of or forfeit substantial rights. If he was so required, his arraignment was a “critical stage” in the proceedings, and would be invalid under the rule of Hamilton v. Alabama, supra, because he was unrepresented at that time.
Art. VII, § 5 of the Constitution of Oregon states that after the filing of an information, the procedure shall be the same as upon indictment. An arraignment upon indictment consists of reading the indictment to the defendant, delivering to him a copy thereof, and asking him whether he pleads “guilty” or “not guilty.” ORS 135.020.⑤
[253]*253ORS 135.410⑥ and 135.420⑦ provide that if on arraignment the defendant requires it, he shall be allowed until the next day, or until such further time as the court deems reasonable, to answer the indictment, and that in answer he may move the court to set aside the indictment, demur, or plead thereto. ORS 135.520⑧ provides that the motion to set aside the indictment shall be made and heard at the time of the arraignment unless for good cause the court postpones the hearing to a future time. If not so made, it is waived. ORS 135.610⑨ and 135.810⑩ provide respectively that demurrers and pleas shall be made either at the time of the arraignment or at such other time as shall be allowed the defendant for that purpose.
It thus appears that, unless there is an extension of time, a defendant is required to answer; i.e., move, demur, or plead, at the time of the arraignment. If, [254]*254when defendant was first represented by counsel in 1968, he was ■ already foreclosed from asserting his right to move or to demur because he had not asserted them at his 1953 arraignment, then, such arraignment was certainly a critical stage of the proceedings. We have held the information to be valid and have set aside the 1953 plea of guilt. We also hold that the defendant could make whatever answer he chose after his plea of guilt was set aside. Under the statutes above mentioned he could have moved against the indictment or demurred within the time the court allowed him to enter a plea in 1968. We treat an extension of the time to plead as an automatic extension to do those other things that the statutes provide may be done in answer to the indictment or information. At the time of arraignment, when he is notified of the charge against him, a defendant and his counsel are in no position to know what attack, if any, they may wish to make upon it. For this reason, additional time to plead should also pack with it the right to take any action which a study of the charge indicates. It would be useless formality and overly technical to require the court to indicate specifically that the ^defendant may move against the charge or demur, as well as plead, within the additional time granted.
In State v. Pool, 20 Or 150, 25 P 375 (1890), defendant was arraigned and took time to plead. Within that time he moved against the indictment, but the motion was denied. Upon appeal, it was contended by the state that the motion was not timely because it had not been made at the time of the arraignment. The court treated the record showing that defendant had taken additional time to plead as the equivalent of being allowed time within which he could also do those [255]*255other things permitted in answer to the indictment. The court said as follows:
“® * ® was argued here with much force that the defendant was bound to make this motion when the indictment was read to him and he was furnished with a copy thereof or be forever precluded. Such a construction would be very inconvenient in practice. Counsel would never be aide to make an objection according to the facts. If compelled to make the objection at that particular instant, he must do it in ignorance of all of the facts upon which such objection would have to be based. * * 20 Or at 152, 25 P at 375-376.
It is our conclusion that the 1953 arraignment in which defendant was unrepresented was not a critical stage in the 1968 conviction because after the original plea was set aside, he still had available, at a time when he was represented, all means for attacking the information which had existed at the time of his arraignment.
We are not unmindful that ORS 135.310 and 135.320 provide that a defendant shall be informed of his right to counsel before arraignment and that counsel shall be appointed for him unless he waives this right. This is to insure that he has representation when he takes any important action or makes any decision of consequence at arraignment. These actions and decisions were all available to this defendant in 1968 when he did have counsel. It would be useless formality to read again the information to him and to hand him a copy of it. He already knew the nature of the charge on which he was being held.
The judgment of the trial court is affirmed.
Constitution of Oregon, Art. VII (Amended), §5:
3= * No person shall be charged in any circuit court with the commission of any crime or misdemeanor defined or made punishable by any of the laws of this state, except upon indictment found by a grand jury; provided, however, that any district attorney may file an amended indictment whenever an indictment has, by a ruling of the court, been held to be defective in form. Provided further, however, that if any person appear before any judge of the circuit court and waive indictment, such person may be charged in such court with any such crime or misdemeanor on information filed by the district attorney. Such information shall be substantially in the form provided by law for indictments, and the procedure after the filing of such information shall be as provided by law upon indictment.”