ON PETITION FOR REHEARING OPINION MODIFIED. 9. The defendant has petitioned for a rehearing on the ground that the court erred in remanding the case for a new trial, instead of ordering that the defendant be discharged. Defendant cites as authority State v. Willson, 116 Or. 615, 241 P. 843, a prosecution for causing the death of an unborn child by abortion. The court held that the state had failed to prove the corpus delicti, and, in reversing a judgment of conviction, ordered the defendant discharged.
In response to a request by the court the district attorney has filed a memorandum in which he advises the court that it will be impossible for the state on another trial to supply evidence that the defendant had no authority to sign the name of Charles E. Chamberlain as maker to the check alleged to have been forged. For want of this evidence we held that the state had failed to prove the crime of feloniously uttering a forged check.
We treat the district attorney's memorandum as an acquiescence in the defendant's petition. Without passing on the question whether this court has power in any criminal case to order a new trial after determining that the defendant was entitled to a directed verdict of acquittal for failure of proof, the petition for rehearing is granted and the former opinion is modified by deleting the order for a new trial and ordering that the judgment of the Circuit Court is reversed with directions to discharge the defendant. *Page 308