
    Argued March 18,
    reversed with directions April 23, 1970
    STATE OF OREGON, Respondent, v. ALBERT LYLE McCARTHY, Appellant.
    
    468 P2d 652
    
      J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
    
      Jesse R. Himmelsbach, Jr., District Attorney, Baker, argued the cause and filed the brief for respondent.
    Before Schwab, Chief Judge, and Langtry and Foley, Judges.
   PER CURIAM.

Defendant was convicted of the crime of contributing to the delinquency of a minor under the third category (the “manifestly tends” portion) of ORS 167.210, and he appeals. ORS 167.210 reads, in part, as follows:

“When a child is a delinquent child as defined by any statute of this state, [1] any person responsible for, or by any act encouraging, causing or contributing to the delinquency of such child, [2] or any person who by threats, command or persuasion, endeavors to induce any child to perform any act or follow any course of conduct which would cause it to become a delinquent child, [3] or any person who does any act which manifestly tends to cause any child to become a delinquent child, shall be punished upon conviction * *

The “manifestly tends” portion of ORS 167.210 has been declared unconstitutional by State v. Hodges, 254 Or 21, 457 P2d 491 (1969), and an indictment thereunder fails to state a crime. The state concedes that this conviction cannot stand under the “manifestly tends” portion of the statute, but argues that the indictment also charges defendant with a violation of the first category. The first category is also unconstitutional and an indictment thereunder also fails to state a crime. Coon v. Cupp, 2 Or App 114, 467 P2d 140 (1970).

This cause is remanded to the trial court for referral to the grand jury in the event the prosecution deems it proper to proceed under another statute or that he be discharged.

Reversed with directions.  