Opinion
Argued October 9, Appeal dismissed October 18, 1967
Appeal from Circuit Court, Multnomah County.
CHARLES S. CROOKHAM, Judge.
APPEAL DISMISSED.
Robert L. Olson, Portland, argued the cause and filed the brief for appellant.
Bill L. Williamson, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.
Before PERRY, Chief Justice, and SLOAN, GOODWIN, HOLMAN and WOODRICH, Justices.
Defendant was indicted for an alleged violation of ORS 697.035, a misdemeanor. On motion of the defendant, consented to by the district attorney, the trial court quashed the indictment. The trial court ordered the case resubmitted to the grand jury. Defendant appeals from this order.
The order of the trial court is not an appealable order. ORS 19.010. The rationale of the recent case of Dlouhy v. Simpson Timber Co., 247 Or. 571, 431 P.2d 846 (1967), applies equally to the instant case. The trial court should have an opportunity to pass on the question of whether it was proper to resubmit the misdemeanor case to the grand jury. Conceivably, the trial court could conclude that it was error to resubmit this misdemeanor case to the grand jury. On the other hand if the case went to trial the defendant could be acquitted. In either event, the matter would not be before this court. An opinion by this court at this stage would be merely advisory.
Appeal dismissed.