(concurring).
I concur because I believe the authorities cited in the court’s opinion compel the result reached. I write this concurring opinion because I disagree with those decisions, and find nothing which compels the conclusion that insufficiency means “insufficiency of accusation.” I think it can just as logically mean that the indictment or information is insufficient to charge the defendant with a crime as a matter of law, the case here.
First of all, where the indictment is dismissed before trial, as here, no double jeopardy problems under Missouri Constitution Article 1, Section 19, V.A.M.S., are involved. Secondly, I do not think § 547.-210, RSMo 1969, V.A.M.S., precludes ap*680peal in this case. I find that section somewhat confusing but I believe it authorizes two courses of conduct where an information or indictment is held insufficient. Tf the indictment or information can be made sufficient, the trial court may cause the defendant to be committed to answer a new indictment or information. Or, the court may allow an appeal, and this is not dependent on whether or not the indictment or information can be amended to overcome the trial court’s objections. Unless this is the proper interpretation of that section, the statute reaches the absurd result that where the state can correct the problem and proceed to trial without an appeal it may appeal, but where the only remedy for an erroneous ruling on a motion to dismiss is an appeal the state is precluded from appeal.
Supreme Court Rule 28.04 provides simply that the state is entitled to appeal where the indictment or information is adjudged “insufficient.” “Insufficiency” clearly is present where the information or indictment fails to include sufficient facts to allege all of the essential elements of a crime — “insufficiency of accusation.” But “insufficiency” is a broad enough term to also include an information or indictment which states all of the essential elements of the crime but fails to charge a crime because the defendant is not amenable to prosecution — the situation here. The interpretation of the word “insufficient” by the appellate courts of the state is that it means “insufficient but capable of being made sufficient.” To me that is an unnecessarily narrow construction, unwarranted by Constitution, statute, court rule, necessity or practicality. It should also include, at least, the situation where the trial court on a motion to dismiss concludes that the defendant cannot as a matter of law be prosecuted for the offense charged. See discussion in State v. Burgdoerfer, 107 Mo. 1, 17 S.W. 646, 649-650.