dissenting.
This case presents the always difficult problem of whether a child should be remanded for trial as an adult. The alleged crime was committed four days after his 16th birthday.
As the majority points out, this boy, not yet in high school, had never previously been referred to a juvenile court. His school difficulties were not of major dimensions and in the six months prior to the crime charged they had greatly improved, as a result of a change in schools combined with weekly treatment by a fully qualified child psychiatrist. *748Nothing in his prior history remotely hints at violent tendencies.
In State ex rel Juv. Dept. v. Cardiel, 18 Or App 49, 523. P2d 1057 (1974), we considered a somewhat similar case involving a 16-year-old boy. There the boy was slightly older than Rickey Mathis, was for all practical purposes emancipated, and indeed was living with a girl whom he referred to as his wife, had been regularly-employed, and at the time the offense occurred was enrolled in the Chicano Indian Study Center in a carpentry course. He had long been a school dropout. The charge there was attempted murder involving the repeated stabbing in the back of a man who was successfully resisting an effort by Cardiel’s older brother to defeat him in a weaponless fight.
Unlike the case at bar, the victim did not die. In reversing the trial court, this court said:
“Considering the circumstances surrounding the incident, that the alleged victim had Ralph’s [appellant’s] brother on the ground, which Ralph undoubtedly construed as threatening to his brother, and considering all other things, we are inclined to think that, regardless of the viciousness of the attack, it was a ‘one time thing.’ We also consider Ralph’s previous lack of contact with authorities, and his mother’s testimony that he had been a good-natured and jovial child, one of the babies of the family. Her testimony is obviously prejudiced toward Ralph but it is some indication of a characteristic good nature on his part.
“The record supports a conclusion that Ralph is physically, emotionally and mentally immature for his age. There is definite potential for rehabilitation. In the adult prison system, he would be substantially more vulnerable to physical and sexual assaults due to his size and immaturity. We conclude that Ralph’s and the public’s interests *749would be best served by retaining him within the juvenile court system.” 18 Or App at 54-55.
Here, this boy, four days past his 16th birthday, had run away from home on what was generally described as a vacation, during the summertime. He was enticed into a homosexual situation by a man approximately 40 years of age at the latter’s summer mountain cabin and paid $40, ostensibly to perform one and one-half hours’ work. While the boy was so engaged, the man induced him to engage in oral sodomy and then sought to persuade him to perform an act of anal sodomy on him. After being sent from the man’s bedroom to get some lubricating oil he returned to the bedroom, found the man lying naked, face down on the bed, his clothes still in a heap on the floor. When the boy mounted his back he saw on the floor a switchblade knife extending from the victim’s trouser pocket. He reached over, having determined that he would not go through with the demanded act and, apparently repelled by the situation, picked up the knife and quietly opened it, and instead of proceeding to carry out the act of anal sodomy he stabbed the victim repeatedly in the back and, as he turned over, again in the chest. When the victim did not die the boy obtained a heavy frying pan and hammer and beat him over the head, fracturing his skull. After leaving the mountain cabin he later returned, took the man’s wallet and car keys and fled in his car. In contrast to the Cardiel case where the boy fled the state and had to be returned from Arizona, this boy, even before leaving the mountain forest area, contacted officials and reported what he had done.
Here, the boy was still in school, although he had *750had a record of truancy and suspension for smoking prior to the school transfer above referred to.
Nothing in this record indicates any prior involvement whatever of a homosexual nature in the boy’s life, nor any indication of violence. Like Cardiel, this, too, was clearly “a one time thing.” Both psychiatrists who testified in this ease, the juvenile department personnel, and representatives of the State Training School agreed that this boy was a better candidate for rehabilitation in the juvenile system than in the adult. The two psychiatrists estimated a maximum period of three to four years as necessary to his rehabilitation.
Unlike Cardiel, this boy comes from a strong family background. His mother is and has been a school teacher for many years, holding a Master’s Degree. His father, a college graduate, is a highly successful engineer and has worked for more than 20 years in a responsible position for a major corporation. His older sister is a registered nurse. One of his two older brothers is a college graduate and the other is now attending college. Thus, unlike Cardiel, where the boy was completely emancipated and had no family strengths, this boy’s family offers unusual strengths to aid in his rehabilitation. Here the trial court concluded that because of the viciousness of the crime it was unlikely that this boy could be rehabilitated before he is 21. No trained professional in either the social work, correctional or medical fields expressed such an opinion. Nor did anyone recommend that this boy should be remanded to the adult court or committed to an adult institution, or that either would be in the best interest of the public or of the boy.
From my examination of this record I conclude that the state has failed to establish, whether one ap*751plies the rule of preponderance of the evidence, clear and convincing evidence or proof beyond a reasonable doubt,① that it is in the best interests either of *752the public or of this child that he be' remanded to adult court, let alone both of them, as OES 419.-533(1)(c) requires.
Accordingly, I respectfully dissent.
The standard of proof required to support an order of remand remains today unclear. ORS 419.500(1) requires proof beyond a reasonable doubt “in the adjudicative phase of a hearing where a finding of jurisdiction may result in institutionalization,” but otherwise “by a preponderance of * * * [the] evidence.” Its 1971 amendment (Oregon Laws 1971, ch 31, § 1, p 44) doubtless reflected the mandate of McKeiver v. Pennsylvania, 403 US 528, 91 S Ct 1976, 29 L Ed 2d 647 (1971). ORS 419.533(1)(c) provides only that a remand may be ordered if “the juvenile court determines that retaining jurisdiction will not serve the best interests of the child and the public.” (Emphasis supplied.)
Neither Kent v. United States, 383 US 541, 86 S Ct 1045, 16 L Ed 2d 84 (1966), nor In re Gault, 387 US 1, 87 S Ct 1428, 18 L Ed 2d 527 (1967), at the federal level, nor State v. Little, 241 Or 557, 407 P2d 627 (1965), cert denied 385 US 902 (1966), State v. Zauner, 250 Or 105, 441 P2d 85 (1968), nor Bouge v. Reed, 254 Or 418, 459 P2d 869 (1969), in our Supreme Court, have dealt with this question. On May 27, 1975, the United States Supreme Court in Breed v. Jones, 421 US 519, 95 S Ct 1778, 44 L Ed 2d 346, a case dealing primarily with double jeopardy in relation to juvenile remand proceedings, said:
“* * * In Kent v. United States, 383 U.S., at 562, the Court held that hearings under the statute there involved ‘must measure up to the essentials of due process and fair treatment.’ However, the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court. We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain and embarrassment of two such proceedings.” (Emphasis supplied, footnote omitted.) 95 S Ct at 1789-90.
Breed in short reiterates the need for “fundamental fairness” earlier required in Kent, Gault and McKeiver, but declines to fill in the interstices between the intersections of that reticulated creation. Our own recent decisions shed no light on this question. See: State v. Weidner, 6 Or App 317, 484 P2d 844, 487 P2d 1385 (1971); State ex rel Juv. Dept. v. Slack, 17 Or App 57, 520 P2d 905, Sup Ct review denied (1974); State ex rel Juv. Dept. v. Cardiel, 18 Or App 49, 523 P2d 1057 (1974). Since, *752however, appellant here in his brief asserts only that the state failed to establish its case by a preponderance of the evidence, it is not necessary to reach the question here.