
    Argued May 5,
    reversed and remanded with directions July 24, 1969
    STATE OF OREGON, Respondent, v. JAMES HOWARD WHITTED, Appellant.
    
    457 P2d 495
    
      Patrick M. Callaham, Portland, argued the cause for appellant. With him on the brief were Lon N. Bryant and Romaine & Bryant, Portland.
    
      John R. Jelderks, District Attorney, Hood River, argued the cause and filed a brief for respondent.
    Before Perry, Chief Justice, and McAllister, Sloan, O’Connell, Goodwin, Denecke and Holman, Justices.
   GOODWIN, J.

The defendant appeals a conviction under ORS 167.210. He asked an eleven-year-old girl to engage in sexual relations with him. She refused, and the police were notified. A jury found him guilty of an act “which manifestly tended to cause” the child to become a delinquent child.

For the reasons set forth in State v. Hodges, decided this day, 254 Or 21, 457 P2d 491, the portion of the statute under which the defendant was indicted is unconstitutional and the conviction cannot stand. The cause is remanded to the trial court with directions to discharge the defendant in this proceeding and for reference to the grand jury in the event that the prosecution deems it proper to proceed under another statute.

Reversed and remanded.

HOLMAN, J.,

specially concurring.

I concur for the reasons set forth in my concurring opinion in the case of State v. Hodges, 254 Or 21, 457 P2d 491, decided this day. The actions complained of obviously were not such as clearly could tend to cause the child in question to become delinquent.

Sloan and Denecke, JJ., join in this specially concurring opinion.  