Opinion
[1 Or.App. 101] George Weigum, and Stults, Jayne, Murphy & Anderson, Roseburg, for the petition.
Before SCHWAB, C.J., and LANGTRY, FOLEY, FORT and BRANCHFIELD, JJ.
LANGTRY, Judge.
Our decision in this case reversed the defendant's conviction and returned the cause for a new trial for [1 Or.App. 102] the reason that the prosecution's case had not the requisite proof of Corpus delicti.
Defendant in a Petition for Rehearing calls our attention to ORS 136.605:
'In any criminal action the defendant may, before the presentation of evidence in his defense, move the court for a judgment of acquittal. The court shall grant the motion if the evidence introduced theretofore is such as would not support a verdict against the defendant. The acquittal shall be a bar to another prosecution for the same crime * * *.'
This was an entirely new statute enacted in 1957. We find no opinion directly construing it. A literal application of its terms prevents a case in the posture of the case at bar from being further prosecuted. Inasmuch as defendant offered no evidence, no reason appears why it should not be literally applied; consequently, our former opinion is modified to provide that the indictment shall be dismissed and the defendant discharged from custody. In view of this ruling there is no reason for a rehearing and the motion is denied.