(dissenting). I must respectfully dissent. The majority finds itself constrained to affirm defendant’s acquittal of felony-firearm because of a legal technicality which offends logic, common sense and justice.
At trial, the jury convicted defendant of possession of a firearm during the commission of a felony but acquitted defendant of the underlying felony, second-degree murder.
The trial court told the jury there is no way defendant could be acquitted of the felony but be convicted for possession of a firearm during the commission of that felony and ordered them to return to the jury room to "correct the verdict”. The jury then returned a verdict of not guilty on the felony-firearm charge.
The trial court’s decision at the time of trial seemed eminently logical. One looking at the statute would think that a jury must find the commission of a felony in order to convict a defendant of possession of a firearm during the commission of the felony. However, the Michigan Supreme Court decided this very question in a case pending before the Supreme Court during defendant’s trial. In People v Lewis, 415 Mich 443; 330 NW2d 16 (1982), the Supreme Court held that "commission” of a felony is an element of the offense of felony-firearm but conviction of a felony is not required. A jury could thus acquit a defendant of the underlying felony while convicting the defendant of felony-firearm. Lewis consisted of three consolidated appeals. In the Lewis and Johnson appeals, the defendants were each charged with a felony and possession of a firearm during the commission of a felony. Separate juries acquitted the defendants of the felonies but convicted them of posses*724sion of a firearm. The trial judges in both cases set aside the verdicts because they were inconsistent. The people appealed and the Court of Appeals affirmed. The Supreme Court, however, reversed the trial judges and reinstated the possession of a firearm convictions.
The only difference between Lewis and Johnson and the present case is that here the trial judge did not set aside the conviction himself but directed the jury to "correct” its verdict.. The correction is no less the action of the trial judge than the activity in Lewis and Johnson. The jury had already returned a verdict of guilty but was told there is "no way” they could do so. Hence, there is no "acquittal” by the jury for double jeopardy purposes.
In my opinion, it is nonsensical to release defendant from his felony-firearm conviction simply because the trial judge ordered the jury to acquit him rather than do it himself. As the majority frankly admits, if the judge had set aside the conviction himself, defendant’s conviction would be reinstated under Lewis, supra. It is cases like this and the opposite result reached which cause all thinking, law-abiding people to view the law with a suspicious, jaundiced, disrespectful eye. No one can seriously suggest that justice has been done. The trial judge simply made a mistake of law — one that could and should be corrected on appeal.
The majority also finds no provision allowing the prosecutor to appeal.
MCL 770.12(b); MSA 28.1109(b) allows the people to appeal:
"From a decision arresting a judgment of conviction or directing a judgment of acquittal for insufficiency of the indictment, information, or other charging instrument, where the decision is based upon the invalidity or *725construction of the statute upon which the indictment, information, or other charging instrument is founded.”
I would submit that the trial court directed a verdict of acquittal for insufficiency of the possession of a firearm information based on the trial court’s construction of the statute. The trial court found the information insufficient as a matter of law because an element of the charged offense was missing — commission of the underlying felony. Further, the people were allowed to appeal in nearly identical circumstances in People v Lewis, supra.
I would hold that the people may appeal the directed verdict of acquittal and that defendant’s conviction for possession of a firearm during the commission of a felony should be reinstated.