(dissenting).
In my opinion Judge Parsons’ order cannot fairly be interpreted as an aequital. A motion for acquittal may be filed only “after the evidence on either side is closed * * 1 In this case, the trial never started. The jury had not been impaneled or waived and no evidence had been offered or received. I do not believe a defendant should have the benefit of a judgment of acquittal before he has been placed in jeopardy.
Judge Kerner has demonstrated that the district court did not sustain a plea in bar, and therefore if an appeal lies, it is to this court rather than the Supreme Court. The trial judge stated unequivocally that he was granting the defendant’s motion to dismiss the indictment; in my opinion, that is the only proper interpretation of his order. If the Criminal Appeals Act means what it says, such an order is appealable.2
As Judge Kerner correctly points out, however, the Ninth Circuit reads the legislative history of the 1942 amendment to the statute to confine our appellate jurisdiction to review of dismissals based on a defect in the indictment or in the institution of the prosecution. See United States v. Apex Distributing Co., 270 F.2d 747 (9th Cir. 1959) (en banc). With all respect, I do not find the comments in the Committee Report on which that court relies sufficiently persuasive to overcome the plain language of the statute itself.3 Moreover, both the *655Supreme Court and this court have assumed, without expressly deciding,4 that our jurisdiction is not so narrowly limited. United States v. Weller, 401 U.S. 254, 91 S.Ct. 602, 28 L.Ed.2d 26; United States v. Brodson, 234 F.2d 97 (7th Cir. 1956).
Although I recognize that the Supreme Court’s determination of its own narrow jurisdiction under the Criminal Appeals Act requires consideration of a district court’s grounds of decision,5 I believe the statutory language used to define our jurisdiction requires us to consider the effect6 of the order entered by the district court rather than the reasons for its entry. Otherwise it might be impossible to determine whether or not an appeal lies, since, as in this case, the trial judge’s colloquies with counsel may do more to obscure than to identify the precise basis for his order of dismissal. The fact that the ruling was based on statements of counsel or perhaps other matters not properly a part of the record, may have compounded his error, but should not negate our power to set the order aside pursuant to 28 U.S.C. § 2106. United States v. Frue-hauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed. 2d 476. Since I find no defect in the indictment, I would reverse and remand for trial.
. Rule 29 F.R.Crim.P. In United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608, the motion was filed after both parties had rested.
. The statute provides, in part:
“An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases, in the following instances :
“From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section.” 18 U.S.O. § 3731.
. For example, the following language in the Committee Report, not quoted in the Apex opinion, suggests the same broad right to appeal from all dismissals as the statutory language itself:
“The bill would have the effect of enlarging the power and authority of the United States to appeal in the following ways: * * *
“3. Permit appeals to the circuit court of appeals from all decisions and judgments having the effect of quashing, setting aside, or sustaining demurrers or pleas in abatement to indictments ' or informations and from all decisions arresting judgments of conviction except in those instances where direct appeals to the Supreme Court are permitted under the existing law. * * * ” U.S.Code Cong.Ser. 77th Cong., 2d Sess.1942, pp. 487-88. (Emphasis added.) *655The legislative history of the amendment to § 3731 contained in the Omnibus Crime Control Act of 1970, 84 Stat. 1880, makes it perfectly clear that if this prosecution had been commenced subsequent to January 2, 1971, the appeal would lie. Conf. Rep.No.91-1768, 91st Cong., 2d Sess., 1970 U.S.Code Cong. & Ad.News pp. 5848-49. Insofar as the precise question presented to us is concerned, this amendment may support Judge Kerner’s reading of the statute by indicating that Congress felt broader review was required, or with equal force may support my reading on the assumption that Congress desired to remove the ambiguity, engendered by the decision in Apex as to its 1942 purpose in using language it then considered unambiguous.
. It should be noted, however, that the Supreme Court had no statutory authority to remand Weller to the Court of Appeals for the Ninth Circuit unless “ * * * in the opinion of that Court [the appeal] should have been taken to a court of appeals * * 18 U.S.C. § 3731.
. See United States v. Swift & Co., 318 U.S. 442, 63 S.Ct. 684, 87 L.Ed. 889; United States v. Carbone, 327 U.S. 633, 642-644, 66 S.Ct. 734, 788-789, 90 L.Ed. 904 (Frankfurter, J., dissenting).
. See footnote 3, supra.