Our decision in this case reversed the defendant's conviction and returned the cause for a new trial for *Page 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. *Page 103