(dissenting)—The majority opinion affirming the trial court is based solely upon the conclusion that the trial court’s order of dismissal is not appealable. I disagree. CARO A 14(8) (5) states,
Any order which in effect abates or determines the action, or discontinues the same, otherwise than by a verdict or judgment of not guilty
may be appealed by the State. Because the order of dismissal abated, determined, or discontinued the action, it is necessary only to decide whether the order of dismissal is in effect a “judgment of not guilty.”
I first observe that the issue is considered sua sponte; consequently we do not have the benefit of either counsel’s research and argument.
The order of dismissal from which the appeal is taken recites in part as follows,
This matter having come on for trial on September 25, 1974 and the State being present and represented by *890David G. Metcalf, Deputy Prosecuting Attorney, and having called several witnesses and rested its case and the defendant being present and represented by David C. Mitchell, Snohomish County Public Defender Association, having moved for dismissal after the State rested and the Court having examined the evidence and considered the briefs and arguments of each counsel and being fully advised in the premises,
It is Hereby Ordered, Adjudged and Decreed that all counts of the above-entitled cause are dismissed for failure of the State to meet its burden in the presentation of its case.
The right of the State to appeal from an alleged erroneous dismissal of a criminal charge at the conclusion of the presentation of the State’s evidence was settled in State v. Brunn, 22 Wn.2d 120, 154 P.2d 826, 157 A.L.R. 1049 (1945). If the trial court’s ruling in the instant case was in response to a motion of dismissal based upon a challenge to the sufficiency of the evidence and did not involve a weighing of the evidence by the trial judge, the State’s appeal is proper. But if the dismissal occurred after a trial on the merits, as in State v. Ridgley, 70 Wn.2d 555, 424 P.2d 632 (1967), relied upon by the majority, clearly the State has no right of appeal. The majority opinion, therefore, rests solely on the ground that the instant case was submitted to the trial judge on its merits when the defendant moved for dismissal at the close of the State’s case. My examination of the record does not support that conclusion. Nowhere in defendant’s brief on appeal is there any claim that his request for dismissal was other than a motion to dismiss on the basis of insufficient evidence. Consequently, his brief discusses only the standard for reviewing a challenge to the sufficiency of the evidence. See Trautman, Motions Testing the Sufficiency of Evidence, 42 Wash. L. Rev. 787 (1967).4 *891Further, a review of the record of the proceedings before the trial court does not indicate that the defendant made an election to stand on his motion, nor is there any indication that the trial judge exercised his option to weigh the evidence and rule as a matter of fact. Therefore, the conclusion seems inescapable that the trial judge reviewed the evidence pursuant to the rules applicable to a challenge to the sufficiency of the evidence and determined that there was no evidence providing a basis for finding a nexus between the seller of the drugs and the defendant.5
On this record, I cannot conclude otherwise than that the case was not submitted to the trier of fact on its merits, but dismissed as a matter of law for lack of sufficient evidence to go to the trier of fact. The order of dismissal is not tantamount to a “judgment of not guilty,” but does abate the action and is therefore appealable by the State.
Further, I believe the 1971 amendment discussed in the majority opinion is applicable and would permit the defendant to be convicted of “delivery” without regard to any question of agency. I would reverse and remand for new trial.
Petition for rehearing denied October 11, 1976.
Review by Supreme Court pending February 10, 1977.
Pertinent statements in defendant’s brief are as follows: At page 12, defendant’s brief states, “The governing legal rule . . . when there is a challenge to the sufficiency of the evidence, is that the moving party admits the truth of the evidence against him and all reasonable inferences against him. . . .” (Citations omitted.) Again, on page 15 of defendant’s brief, it is stated, “The evidence of delivery of a controlled substance was not sufficient to go to trier of fact.” He *891states on page 28, “There was insufficient evidence of sale of a controlled substance by the defendant to go to the trier of fact.” In the summary and conclusion of defendant’s brief, page 30, it is stated, “The holding of the trial court that there was not sufficient evidence to proceed beyond the state’s case was one based on proper law and consistent with the application of that law to the facts presented.”
A case illustrative of the difficulty in determining whether the trial judge ruled as a matter of fact or law is Jacobs v. Brock, 66 Wn.2d 878, 406 P.2d 17 (1965), in which the majority of the justices said at page 882,
In examining the trial court’s oral opinion we find nothing that indicates the testimony of the witnesses was disbelieved, or that the trial court weighed the evidence.
'The dissent signed by four justices said at page 888,
The italicized words [of the oral opinion] show a balancing and weighing of evidence to determine how persuasive it was.