concurring in part and dissenting in part:
I concur in the reversal of defendant’s conviction for the reasons stated in the majority opinion. I dissent from granting a new trial.
The essence of our criminal law is that a man may not be convicted of committing a crime unless it is proved beyond a reasonable doubt that he did so. In re Winship (1970), 397 U.S. 358; 90 S.Ct. 1068, 25 L.Ed.2d 368; State v. McWilliams (1936), 102 Mont. 313, 57 P.2d 788. Upon reviewing the sufficiency of the evidence to sustain a conviction, we do not pass on the credibility of the witnesses or the weight to be given their testimony as such matters are the sole province of the jury. State v. DeGeorge (1977), 173 Mont. 35, 566 P.2d 59, 60, 34 St.Rep. 541, 543; State v. Bouldin (1969), 153 Mont. 276, 284, 456 P.2d 830, 834-835. Rather, we view the evidence in the light most favorable to the state and affirm the verdict of the jury if there is substantial credible evidence to support it. Glasser v. United States (1942), 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704; State v. Pascgo (1977), 173 Mont. 121, 566 P.2d 802, 805, 34 St.Rep. 657, 660. If a case is reversed solely for insufficiency of the evidence and then remanded for retrial, the defendant is unconstitutionally subjected to double jeopardy. U.S.Const., Amend. XIV; Burks v. United States (1978), 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d. 1; 1972 Mont.Const., Art. II, § 25.
In this case, the conviction is reversed because a portion of the evidence used at trial was obtained in violation of the defendant’s constitutional rights. The United States Supreme Court has not yet answered the question of whether a defendant is subjected to double jeopardy upon retrial when the reviewing court has decided the “legally competent evidence adduced at the first trial was insufficient to prove guilt.” Greene v. Massey (1978), 437 U.S. 19, 26, 98 S.Ct. 2151, 2155, 57 L.Ed.2d 15, 22, n. 9.
*122The Montana Supreme Court however, has decided the question and held that a new trial cannot be granted when admissible evidence from the first trial will not support a conviction. State v. Johnson (1978), 177 Mont. 182, 580 P.2d 1387, 1390; State v. Langan (1968), 151 Mont. 558, 568, 445 P.2d 565, 570. This is a sound rule and one from which the Court should not deviate. By ruling otherwise, the prosecution is afforded another opportunity to supply evidence which it failed to muster the first proceeding. This is precisely what the double jeopardy clause forbids. Burks v. United States, supra, 437 U.S. at 11, 98 S.Ct. at 2147, 57 L.Ed.2d at 9; see generally Note, 10 Tex.Tech. L.R. 184 (1978).
The legally admissible evidence at defendant’s trial showed the following; That defendant owned and sometimes carried a small caliber pistol; that his girlfriend did not see the gun on the day the homicides were committed; that defendant was not at home at the time they were committed; that defendant may have buried the pistol; and that .22 caliber bullets were found in his van. In addition, defendant knew the homicide victims and had been at their home hours before their deaths. A man, not positively identified, had been seen walking down an alley near the scene of the crimes at about the time the murders were committed. Finally a van, similar to, but said positively not to be defendant’s by the only person who saw it, was seen near the victims’ home and was driven away shortly after the homicides were perpetrated. This is not sufficient to support a conviction and a new trial cannot be granted. State v. Johnson, Mont. 580 P.2d at 1390, 35 St.Rep. at 956.
I agree with the majority that the psychiatric testimony shows defendant to be a very disturbed individual and that his release would present a danger to society as well as to himself. I would therefore order him detained under Chapter 21, Title 53, MCA and direct proceedings to be commenced under that chapter to procure defendant’s commitment to a mental institution.
MR. JUSTICE SHEA will file a separate opinion later.