
    Argued and submitted April 1,
    reversed December 9, 1992
    STATE OF OREGON, Respondent, v. MICKEY DEAN THOMPSON, Appellant.
    
    (89-08-0282 CR; CA A70456)
    843 P2d 960
    Mike Kilpatrick, Mt. Vernon, argued the cause for appellant. With him on the brief was Kilpatricks, Mt. Vernon.
    Janie M. Bureart, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
    Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.
    PER CURIAM
    Rossman, J., dissenting.
   PER CURIAM

Defendant appeals from his conviction for theft in the first degree. ORS 164.055. We reverse.

Defendant was found guilty in a jury trial. Before sentencing, he learned that the grand jury that indicted him had only six members and moved to quash the indictment. The court denied the motion.

Seven grand jurors must hear and consider all the evidence presented before a grand jury can return a valid indictment. Or Const, Art VII (amended), § 5(2); Goodwin v. State of Oregon, 116 Or App 279, 840 P2d 1372 (1992). Here, only six grand jurors considered the evidence and returned the indictment against defendant. The indictment is void.

Reversed.

ROSSMAN, J.,

dissenting.

Although the result in this case is mandated by our recent in banc opinion in Goodwin v. State of Oregon, 116 Or App 279, 840 P2d 1372 (1992), I still disagree with the holding in that case for the reasons stated by Judge Edmonds in his well-reasoned dissent. I do not believe that there is anything in Article VIII, section 5(2), of the Oregon Constitution that requires an indictment to be the result of the deliberations of not less than seven grand jurors.  