dissenting:
I dissent, as I believe the majority has completely misconceived the limited double jeopardy issue present*161ed to us and has compounded their error by engaging in an extensive and useless dictum in regard to the appropriate standard under double jeopardy principles to test whether two or more crimes are the same.
It is obvious from the facts that the directed verdict was granted when the defendant moved the court that there was a fatal variance between the address of the building described in the indictment and the address proved at trial. The indictment charged the defendant with breaking and entering a building “located at 220 22nd Street, Huntington, in Cabell County, West Virginia, and used as a night club, being the property of Bachelors Bait, Inc. ...” The variance at trial was that the street address was proved to be 200 22nd Street.
The building was described in the indictment by its location on a given street in the city of Huntington, by the owner’s name and by the function of the building. Therefore, the fact that the street address was misnum-bered could not constitute a fatal defect. Both State v. Paris, 155 W. Va. 268, 184 S.E.2d 1 (1971), and State v. Stone, 127 W. Va. 429, 38 S.E.2d 144 (1945), stand for the principle that if a building is described with sufficient certainty to apprise the defendant of its location, an indictment cannot be successfully challenged. Moreover, if a building is sufficiently described without the street address, the street address is mere surplusage. State v. Paris, supra.
Rather than confine its opinion to the limited issue of whether this type of mid-trial termination affords a double jeopardy bar to a new trial, the majority launches into a discussion of whether the same transaction or same evidence test should apply. The record is clear that both indictments charged the same crime. Consequently, the majority opinion in this area is pure dictum.
The double jeopardy bar against successive trials has never been held to be absolute. While Crist v. Bretz, 437 U.S. 28, 57 L. Ed. 2d 24, 98 S.Ct. 2156 (1978), binds the states to the federal standard that the “time” for the *162attachment of jeopardy is when the jury is impaneled and sworn, this does not mean that any break in the trial after that time permits a successful double jeopardy plea on any attempted retrial.
An exhaustive historical analysis of this issue is not necessary in order to demonstrate the majority’s error. The United States Supreme Court has recognized that double jeopardy does not preclude a retrial where a mistrial is directed by the judge because the jury is unable to agree on a verdict. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824).
The Supreme Court has also recognized that there may be other occasions where there is a “manifest necessity” to declare a mistrial, and in such event double jeopardy does not bar another trial. Wade v. Hunter, 336 U.S. 684, 93 L. Ed. 974, 69 S.Ct. 834 (1949). We have followed this principle in State ex rel. Dandy v. Thompson, 148 W. Va. 263, 134 S.E.2d 730 (1964), cert. denied, 379 U.S. 819, 13 L. Ed. 2d 30, 85 S.Ct. 39.
Double jeopardy does not bar a retrial where the defendant has requested and obtained a mistrial on grounds other than prosecutorial or judicial overreaching. United States v. Dinitz, 424 U.S. 600, 47 L. Ed. 2d 267, 96 S.Ct. 1075 (1976). The same is true where an indictment is dismissed upon motion of the defendant under circumstances which are analogous to a mistrial. Lee v. United States, 432 U.S. 23, 53 L. Ed. 2d 80, 97 S.Ct. 2141 (1977).
Of particular importance is the rule that the trial court’s labeling of the motion which terminates the trial will not be controlling, but rather an examination will be made of the underlying record to determine the substantive nature of the court’s ruling. United States v. Martin Linen Supply Co., 430 U.S. 564, 51 L. Ed. 2d 642, 97 S.Ct. 1349 (1977).
The pivotal case, which perhaps best expresses the current views of the United States Supreme Court, is United States v. Scott, 437 U.S. 82, 57 L. Ed. 2d 65, 98 *163S.Ct. 2187 (1978). In Scott, the defendant moved prior to and at the trial for dismissal of two narcotics counts on the ground that his defense had been prejudiced by pre-indictment delay. At the close of the evidence, the district court granted the motion. The government appealed the dismissal of the two counts under 18 U.S.C. §3731, which permits appeals by the government from the dismissal of indictments except where the Double Jeopardy Clause prohibits retrial.1
Writing for the majority, Justice Rehnquist held that jeopardy did not bar a new trial, stating:
“Rather, a defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ Martin Linen, supra, at 571, 51 L Ed 2d 642, 97 S Ct 1349....” [437 U.S. at 97, 57 L. Ed. 2d at 78, 98 S.Ct. at 2196-97]
The dissenting Justices, led by Justice Brennan, took a broader view, and concluded that where the trial court resolves any factual issue which is dispositive of the defendant’s culpability, then double jeopardy bars the retrial. This would include favorable rulings by the trial court on the defendant’s defenses, e.g., “entrapment, insanity, right to speedy trial, statute of limitations. ...” [437 U.S. at 111, 57 L. Ed. 2d at 87, 98 S.Ct. at 2204]:
“A critical feature of today’s holding appears to be the Court’s definition of acquittal as ‘a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged,’ ante, at 97, 57 L Ed 2d 78, quot*164ing United States v Martin Linen Supply Co., supra, at 571, 51 L Ed 2d 642, 97 S Ct 1349. But this definition, which is narrower than the traditional one, enjoys no significant support in our prior decisions. The language quoted from Martin Linen Supply Co. was tied to the particular issue in that case and was never intended to serve as an all-encompassing definition of acquittal for all purposes. Rather, Martin Linen Supply referred generally to ‘acquittal’ as ‘a legal determination on the basis of facts adduced at the trial relating to the general issue of the case,’ id., at 575, 51 L Ed 2d 642, 97 S Ct 1349 (citations omitted), and this is the accepted definition. See Serfass v United States, 420 US 377, 393, 43 L Ed 2d 265, 95 S Ct 1055 (1975), quoting United States v Sisson, supra, at 290 n 19, 26 L Ed 2d 608, 90 S Ct 2117. This definition, moreover, clearly encompasses rulings pertaining to all ‘affirmative defenses’ that depend on the factual development at trial.” [437 U.S. at 111-12, 57 L. Ed. 2d at 87, 98 S.Ct. at 2204]
The majority opinion in Scott conceived that the pre-indictment delay was a defense and that the district court’s factual resolution of it in favor of the defendant did not bar a new trial because the delay, however prejudicial, was not an element of the prosecution’s case. The dissent maintained, on the other hand, that this defense related to the defendant’s ultimate culpability, and that since the district court had resolved the issue in the defendant’s favor, double jeopardy precluded a retrial.
In the present case, it is not necessary to select which of the two views expressed in Scott we need accept, since under both views the result is that jeopardy would not bar a retrial. Here, the factual issue — the variance between 220 22nd Street and 200 22nd Street — forms no part of an essential factual element of the State’s case, nor was it in any manner related to an essential factual element of an affirmative defense of the defendant. It was pure surplusage, much as if the indictment had *165included an erroneous physical description of the defendant.
Here, the majority states in regard to this area of double jeopardy that:
“[0]ne clear rule has emerged: after a judgment acquitting a defendant no retrial on the same offense is permissible no matter how erroneous the acquittal might have been. Sanabria v. United States, 437 U.S. 54 (1978); United States v. Scott, 437 U.S. 82 (1978). ...” [Majority Opinion at 2]
But Scott does not stand for this proposition, nor does Sanabria v. United States, 437 U.S. 54, 57 L. Ed. 2d 43, 98 S.Ct. 2170 (1978), which involved a federal bench trial on a single-count gambling indictment. An essential element of the federal crime was a violation of a state statute governing numbers and horse betting. At the conclusion of the government’s case, the defendant moved for an acquittal on the ground that the government had failed to prove a violation of the state statute. The trial court granted the motion and the government appealed the dismissal. The Court concluded that the government had failed to prove the defendant guilty of an essential element of the offense charged, a violation of the state gambling statute:
“We have recently defined an acquittal as ‘a resolution, correct or not, of some or all of the factual elements of the offense charged.’ Lee v United States, supra, 432 US, at 30 n 8, 53 L Ed 2d 80, 97 S Ct 2141, quoting United States v Martin Linen Supply Co., supra, 430 US, at 571, 51 L Ed 2d 642, 97 S Ct 1349. Petitioner was found not guilty for a failure of proof on a key ‘factual element of the offense charged’: that he was ‘connected with’ the illegal gambling business. ...” [437 U.S. at 71, 57 L Ed. 2d at 58-59, 98 S.Ct. at 2182]
Here, there was no finding of a failure of proof of an essential element of the offense charged. As the major*166ity notes, Sanabria also stands for the proposition that if the acquittal on a key factual element is erroneous, jeopardy will still bar retrial, but that proposition is inapplicable to the present case, where the erroneous dismissal was based on a non-essential fact involved in the State’s case.
The majority errs in assuming that a judgment of acquittal granted by the court upon motion of the defendant will automatically bar a retrial. The bar comes into play only if the judgment of acquittal is based on the trial court’s determination that the government has failed in its proof of an essential element of the offense.
A companion case to Sanabria and Scott is Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S.Ct. 2141 (1978), which demonstrates how the jeopardy rule works in the jury trial where it is determined on appeal that the government has failed to fulfill its burden of proof on a key factual issue. At the trial, Burks claimed insanity and offered evidence on this issue. On appeal of his conviction, he contended the government had failed to prove his sanity beyond a reasonable doubt. The appeals court agreed, and reversed for a new trial, but the United States Supreme Court held that a judgment of acquittal had to be entered:
“[Wjhen a defendant’s conviction has been overturned due to a failure of proof at trial ... the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a. verdict of guilty.” [Emphasis in original] [437 *167U.S. at 16, 57 L. Ed. 2d at 12-13, 98 S.Ct. at 2149-BO]2
The failure of the majority to look behind the label of the motion of acquittal to determine the underlying nature of the motion is its first error. This error becomes compounded when the majority misreads the requirement of Scott and Sanabria that the acquittal must be based on the resolution in the defendant’s favor of a factual element of the offense charged. Here, the difference in street address was not a factual element of the offense charged.
*168These errors by the majority result in its declaring W. Va. Code, 61-11-14, unconstitutional — a needless declaration in view of the factual issue in this case. Obviously, this statute will withstand double jeopardy scrutiny where the variance between the allegations in the indictment and the proof at trial relates to a factual matter that is unrelated to an element of the offense charged.
Finally, having entirely misconceived the limited jeopardy question presented, the majority launches into a completely gratuitous attempt to settle the scope of double jeopardy as it applies to related offenses. This discussion is clearly unwarranted under the facts of this case, since both indictments were for the same offense. I decline comment in this area, since this case does not present this question.
In my judgment, the majority view will not stand the test of time. I would refuse the writ of prohibition, since double jeopardy does not bar a retrial where the trial court makes a factual finding in favor of the defendant on an issue that is unrelated to an element of the crime or of his defense.
The relevant portion of 18 U.S.C. § 3731 provides:
“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”
In Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S.Ct. 2141 (1978), the Court abandoned the concept that a defendant, by moving for a new trial or taking an appeal, “waives his right to a judgment of acquittal.” [437 U.S. at 17-18, 57 L. Ed. 2d at 13-14, 98 S.Ct. at 2150] By holding that a successful claim of evidentiary insufficiency will bar a retrial, the Court modified its early position in Bryan v. United States, 338 U.S. 552, 94 L. Ed. 335, 70 S.Ct. 317 (1950), that where the accused is successful on appeal in obtaining a new trial, double jeopardy does not bar the same. With the erosion of the “waiver” concept in Burks, it may be hoped that the Court will move away from similar labels that tend to obscure the functional basis of the double jeopardy principles, such as protecting the defendant from “embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. ...” [Green v. United States, 355 U.S. 184, 187, 2 L. Ed. 2d 199, 204, 78 S.Ct. 221, 223 (1957)], and protecting his “valued right to have his trial completed by a particular tribunal” [Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 978, 69 S.Ct. 834, 837 (1949)]. These are subjective considerations which have little bearing on the substantive rules relating to double jeopardy. Once it is recognized that certain mid-trial rulings terminating the case will not bar retrial and that a successful appeal on trial error also permits retrial, it can hardly be argued that the avoidance of the “ordeal of a second trial” and the assurance of the “valued right to the same tribunal” are meaningful principles. Burks and Scott now confine double jeopardy to two major categories. If the trial is broken for reasons related to a factual issue bearing on the defendant’s guilt resolved in his favor, retrial is barred. If the conviction is reversed on appeal for evidentiary insufficiency rather than for trial error, a retrial is impermissible. Obviously, the term “evidentiary insufficiency” on appeal is a shorthand expression meaning that the trial judge resolved a factual issue bearing on the defendant’s guilt in his favor by dismissing the case.