dissenting.
I disagree with the majority for two reasons. First, it begins from a fundamentally flawed premise: that this prosecution is for assault in the fourth degree. 118 Or App at 338. That is mistaken. The only charging instrument before the court, and the one that it ordered dismissed, was an indictment for assault in the second degree. There is no dispute that defendant has been acquitted of that charge. Accordingly, he cannot now be prosecuted for that crime, and the trial court was right to dismiss the indictment on the basis of former jeopardy. ORS 131.515(3).
I realize that both the state and defendant argued to the trial court and continue to argue on appeal about whether the trial court could have allowed an amendment of the *341indictment to delete the allegations relating to the greater second degree assault charge, leaving a charge of fourth degree assault. The problem with those arguments is that the trial court was not asked to amend the indictment and therefore neither allowed nor denied it. Thus, whether an amendment would have been proper, had it been requested, is not before us. Neither is the issue of whether defendant may be prosecuted for fourth degree assault. We should save that question for a time when it is properly presented.
Second, the majority incorrectly concludes that it is not necessary to amend the indictment to charge fourth degree assault, because the greater charge implicitly charged the lesser included offense, and “the charge remained pending.” 118 Or App at 339. As ORS 131.525(l)(b) confirms, a prosecution that results in a hung jury is ‘ ‘terminated, ’ ’ albeit properly; it does not remain pending.
Having incorrectly concluded that the indictment need not be amended, the majority then discusses the former jeopardy statutes, ORS 131.515(3) and ORS 131.525(l)(b). That discussion is unnecessary under the majority’s conclusion that the lesser assault charge “remains pending,” because an attempt to try defendant again for fourth degree assault would not be a “subsequent prosecution.”
The charging instrument that the court ordered dismissed includes only one charge and defendant has been acquitted of it. The trial court correctly dismissed the indictment.
I dissent.