(dissenting). Today the majority affirms a Court of Appeals decision that the defendant was acquitted when the trial judge ruled, without discharging the jury, “as a matter of law, Defendant owed no legal duty to the victim and therefore could not be convicted of either charge as a matter of law.” A decision that operates to bar prosecution because of an erroneous legal ruling by a trial judge is so contrary to sound public policy that it should be rejected unless compelled. The majority’s result is not compelled by decisions of the United States Supreme Court. I therefore dissent and would hold that defendant’s retrial and conviction was not barred by the *633Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.
i
The Double Jeopardy Clause prohibits retrial after a directed verdict of acquittal. People v Anderson, 409 Mich 474, 492; 295 NW2d 482 (1980). By contrast, where a defendant brings about the termination of a proceeding on a basis unrelated to factual guilt or innocence, retrial is generally permitted. Id. at 485. Thus, decisions of the United States Supreme Court interpreting the Double Jeopardy Clause have focused on the distinction between dismissals based on determinations of facts and dismissals based on legal conclusions. United States v Martin Linen Supply Co, 430 US 564, 571; 97 S Ct 1349; 51 L Ed 2d 642 (1977); United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 (1978).
In Martin Linen, the Court, while noting that what constitutes an acquittal is not to be controlled by the form of the judge’s action, observed that, where a government appeal poses no threat of successive prosecution, the Double Jeopardy Clause is not offended.1 Id. at 571. This indicates that a judicial ruling is an acquittal “only when, in terminating the pro*634ceeding, the trial court actually resolves in favor of the defendant a factual element necessary for a criminal conviction.” United States v Maker, 751 F2d 614, 622 (CA 3, 1984), cert den 472 US 1017 (1985) (emphasis added). Thus, as Professor Wright’s treatise has construed the Court’s jeopardy jurisprudence, “[s]o long as there has not been a finding against the government on any issue of fact required to establish guilt on the correct legal theory, appeal could easily seem appropriate.” 15B Wright, Miller & Cooper, Federal Practice & Procedure (2d ed), § 3919.5, p 662.
In Maker, the defendants were charged with a single insurance fraud scheme related to two separate automobile accidents. The district concluded that the statute required advance planning of the second accident at the time of the first and dismissed the charge during trial on the basis of the insufficiency of the government’s evidence to prove one scheme rather than two. Finding this to be an “element of” the government’s case, the trial court decided that the government did not have “sufficient evidence” to prove this “element.” Maker at 619. While acknowledging that the United States Supreme Court did not provide significant direction on how the test should be applied, id. at 622, the United States Court of Appeals for the Third Circuit read Martin Linen and its progeny, Scott, to require an acquittal only when the trial court’s action, whatever its form, is a resolution in the *635defendant’s favor, correct or not, of “a factual element necessary for a criminal conviction. ” Maker at 622. (Emphasis added.) As in the case before us, the trial court had dismissed the charge because the government had not alleged facts sufficient to prove all the legal elements that it believed were necessary to sustain conviction. Likewise, as in the case before us, the court then made what is “at least arguably, a factual determination,” that the government could not prove the legal element which the trial court thought necessary for conviction. Id. at 623.
The court found that the trial court’s arguable factual finding did not “actually determine in [the defendant’s] favor any of the essential elements of the crime with which he was charged,” because the trial court’s legal determination about the elements of the charge was incorrect. Id. The court reasoned:
Our conclusion that an appeal is not barred in this case is consistent with the policies underlying the double jeopardy clause. This is not a case in which a second trial is permitted “for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v United States, 437 US 1, 11; 98 S Ct 2141, 2149; 57 L Ed 2d 1 (1978). Instead, this is a case in which the district court, as the result of a legal error, determined that the government could not prove a fact that is not necessary to support a conviction. To preclude an appeal in this case would deprive the public “of its valued right to ‘one complete opportunity to convict those who have violated its laws.’ ” Scott, supra at 100, quoting Arizona v Washington, 434 US 497, 509; 98 S Ct 824, 832; 54 L Ed 2d 717 (1975). [Maker, supra at 624.]
The district court had come to two conclusions, one legal and the other apparently factual. Appeal and *636retrial were not barred, however, because neither was relevant to an essential element of the charge.
The Maker court relied principally on Scott and decisions interpreting the decision in that case. Maker at 622.2 In Scott, the defendant claimed impermissible preindictment delay and moved once before trial and twice during trial for dismissal of two counts charging federal drug offenses. The trial court granted the defendant’s motion at the close of the evidence and sent the remaining count to the jury. Upon the juiy’s acquittal on the third count, the government sought appeal of one of the dismissals. Id. at 84.
The United States Supreme Court held that appeal was permissible and “that where the defendant himself seeks to have the trial terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful effort to do so is not barred” by statute or double jeopardy. Id. at 101. In reaching this conclusion, the Court reiterated its holding in Martin Linen that an acquittal requires that the judge’s ruling “ ‘actually represent ] a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged . . . Scott, supra *637at 97 (citing Martin Linen, supra). Scott thus stands for the proposition that government appeals from dismissals are permissible if two requirements are satisfied: (1) the trial court did not rely on the sufficiency of the evidence to support a conviction of the offense charged, and (2) the .defendant sought dismissal not related to factual guilt or innocence. Wright, supra at 651.
Admittedly, other cases call into question the definition of an acquittal as a finding that actually resolves in the defendant’s favor a factual element necessary for criminal conviction. In Sanabria v United States, 437 US'54, 64; 98 S Ct 2170; 57 L Ed 2d 43 (1978), where the trial court erroneously excluded evidence and granted a defense motion to acquit, the Court held that jeopardy barred appeal (and retrial), finding that the ruling below was “properly . . . characterized as an erroneous evidentiary ruling which led to an acquittal for insufficient evidence.” Id. at 68-69. This erroneous exclusion of evidence caused “a failure of proof on a key ‘factual element of the offense charged . . . .’” Id. at 71. The Court stated that “when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.” Id. at 64. Criticizing the holding, Professor Wright observes that the Court
found that the district court had relied on its erroneous interpretation of the indictment in arriving at a doubly erroneous decision to exclude . . . evidence; and had then entered a judgment of acquittal as to the entire count for lack of sufficient evidence. There is no more reasoning offered than the conclusion that the order must be treated *638as a fact-based acquittal, and that no appeal can ever be taken from a fact based acquittal. [Wright, supra at 664.]
Despite the Court’s statements in Martin Linen and Scott that “what constitutes ‘an acquittal’ is not to be controlled by the form of the judge’s action,” Martin Linen, supra at 571, Wright concludes that Sanabria provides little more than an “unilluminated reliance on the acquittal phrase.” Id. at 664. The commentators continue:
It is far from self-evident that double jeopardy principles must preclude appeal and retrial as to every judgment that rests upon insufficiency of the evidence, even though the insufficiency ruling results from erroneous legal rulings that lead to complete disregard of sufficient evidence ----[Id.]
Whatever might be said of the lack of clarity generated by Sanabria,3 and Smalis v Pennsylvania, 476 US 140; 106 S Ct 1745; 90 L Ed 2d 116 (1986), neither compels a conclusion that the bar of jeopardy attaches because of an erroneous legal ruling. The Sanabria Court specifically referred to the Martin Linen test for defining an acquittal, Sanabria at 71, and that the decision in the case turned on the fact that “[petitioner was found not guilty for a failure of proof on a key ‘factual element of the offense *639charged’: that he was ‘connected with’ the illegal gambling business.” Id. The judge’s decision was an acquittal because it satisfied the requirements of the Martin Linen test. Thus, even accepting the rule chosen by the majority, that an acquittal bars appeal and retrial, no matter how erroneous the underlying legal rulings, the dismissal must still go to an essential or “key” element of the charged offense, otherwise, it is not an acquittal at all. The error in the majority’s analysis here is that it ignores the threshold definition of an acquittal, despite the fact that Sanabria itself incorporated this very requirement.4
n
The trial judge here viewed the ruling as a legal conclusion, not a determination of the factual elements. He applied the proper legal presumption to the people’s proof, People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), characterized the ruling as a matter of law, and stayed his order to allow an interlocutory appeal. It is clear that at the stage in the proceedings when the order was entered, the court and both counsel agreed that the order was a dismissal of the counts of the information charging first-degree murder. The language of the court’s order, unlike that of Sanabria, although it addressed some facts, did not resolve any “key” or “essential” factual element of *640the offenses charged because legal duty is not an element of either offense.
Defendant was tried on the charges of felony murder and premeditated murder, MCL 750.316; MSA 28.548. The underlying offense for the felony-murder charge was kidnapping, MCL 750.349; MSA 28.581. To establish first-degree premeditated murder, the prosecution must prove the following elements: (1) the defendant intentionally killed the victim, and (2) the act of killing was deliberate and premeditated. See People v Wofford, 196 Mich App 275, 278; 492 NW2d 747 (1992). To establish felony murder, the prosecution must prove the following elements: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of any of the felonies enumerated in MCL 750.316; MSA 28.548. See People v Thew, 201 Mich App 78, 85; 506 NW2d 547 (1993). To establish kidnapping, the prosecution must prove the following elements: (1) the defendant wilfully, maliciously, and without lawful authority, (2) forcibly or secretly confined or imprisoned any other person within this state against his will, or forcibly carried out or sent such person out of this state, or forcibly seized or confined, or inveigled or kidnapped any other person, (3) with intent to extort money or other valuable thing thereby, or with the intent either to cause such person to be secretly confined or imprisoned in this state against his will, or to cause such person to be in any way held to service against his *641will. People v Jaffray, 445 Mich 287, 297; 519 NW2d 108 (1994).
Legal duty is not a factual element of any of these offenses. Rather, legal duty concerns the basic premise of criminal law that no crime can be committed by bad thoughts alone:
Bad thoughts alone cannot constitute a crime; there must be an act, or an omission to act where there is a legal duty to act [actus reus]. Thus the common law crimes are defined in terms of act or omission to act, and statutory crimes are unconstitutional unless so defined. [1 LaFave & Scott, Substantive Criminal Law, § 3.2, p 272.]
The relationship between duty and the charged offenses was that if an element of each offense did not require an actus reus, which consists of either an affirmative act or an omission to act when a duty to act exists, then the statute codifying the offense is unconstitutional. Id. Duty is a question of law, not a question of fact. Id., § 3.3, p 284, n 8, citing People v Beardsley, 150 Mich 206; 113 NW 1128 (1907). Thus, the trial court’s ruling constituted a legal determination that, given the evidence presented by the prosecution, it could not establish the actus reus of premeditated murder or felony murder as a matter of law by showing an omission to act (one of two legal theories to show actus reus).
Although the prosecution focused on the defendant’s failure to let the victim out of Mr. Hogans’ trunk, the prosecutor also presented evidence to establish the actus reus of the charged offenses by showing an affirmative act by defendant. There was evidence presented at trial of an affirmative act performed by defendant in that defendant told a friend who asked *642her about screams coming from the trunk that she was “crazy.” Words alone can constitute overt acts. People v Coleman, 350 Mich 268, 280; 86 NW2d 281 (1957). The trial court did not discuss this evidence in granting defendant’s directed verdict motion. Thus, even if the trial judge can be said to have reached “an arguably factual” conclusion regarding the state of the proofs, as in Maker, retrial was permissible because the factual finding did not relate to any factual element that the prosecution was required to prove. The protective purposes underlying double jeopardy were not implicated by the trial court’s ruling.
The majority’s conclusion, which deprives the public of its valued right to have one complete opportunity to vindicate its laws, underscores that trial judges must proceed with extreme caution in making interlocutory rulings after jeopardy has attached.5 Although there is no indication, that jeopardy principles have been manipulated here, the potential for manipulation exists whenever matters that are capable of pretrial resolution6 are delayed or raised only
*643after jeopardy has attached. Given today’s result, such concerns can be safely addressed only before trial or, alternatively, by denying the motion made at the conclusion of the prosecution’s proofs,7 thus allowing the trier of fact to pass on the facts and granting a motion resolving a legal issue as a judgment notwithstanding the verdict. The rigidity of the first course and the duplicity of the second only underscore the lack of wisdom in holding that an erroneous decision of law bars further prosecution.
in
I would hold that the trial court’s ruling was not an acquittal and that the prosecution and conviction of the defendant did not constitute double jeopardy under the United States Constitution. I would reverse the decision of the Court of Appeals and affirm the jury’s verdict.
Riley and Weaver, JJ., concurred with Boyle, J.Under United States v Jenkins, 420 US 358, 370; 95 S Ct 1006; 43 L Ed 2d 250 (1975), quoted in Martin Linen, supra at 570, government appeal was barred where “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged,” would be required. This test was explicitly overruled in Scott, when the Court stated:
Here, “the lessons of experience” indicate that Government appeals from midtrial dismissals requested by the defendant would significantly advance the public interest in assuring that each defendant shall be subject to a just judgment on the merits of his case, without “enhancing the possibility that even though innocent *634he may be found guilty.” . . . Accordingly, the contrary holding of United States v Jenkins is overruled. [Scott at 101.]
The majority fails to explain why the defendant’s midtrial request for a dismissal, which did not result in an order resolving a factual element, see below, is not governed by Scott’s express indication that such requests are reviewable.
For example, in United States v Moore, 198 US App DC 296; 613 F2d 1029 (1979), cert den 446 US 954 (1980), “the court allowed the government’s appeal despite the fact that, in dismissing the case, the district court determined facts that were relevant to, but not decisive of, one element of the crime.” Maker, supra at 623. The Moore court held there was no acquittal of the defendant under Scott “unless, in ruling on the applicability of the defense, the District Court somehow reached a resolution of one or more of the elements of the offense with which he is charged.” See also Wilkett v United States, 655 F2d 1007, 1012 (CA 10, 1981), cert den sub nom Conklin v United States, 454 US 1142 (1982) (finding no acquittal where the termination of the trial was due to failure “to prove an element which is more procedural than substantive, namely, venue”).
It is interesting to note that these apparently competing standards for determining when there has been an acquittal appear simultaneously in volume 437 of the United States Reports. In Sanabria, Justice Blackmun’s dissent states that “the case will afford little guidance as precedent in the Court’s continuing struggle to create order and understanding out of the confusion of the lengthening list of its decisions on the Double Jeopardy Clause.” Id. at 80. Likewise, Justice Brennan’s dissent in Scott states, "It is regrettable that the Court should introduce such confusion in an area of the law that, until today, had been crystal clear.” Id. at 116.
Similarly, in Smalis, the trial court dismissed the case because it concluded that the prosecution’s evidence was insufficient to show what the judge believed to be the required degree of recklessness under the Pennsylvania homicide statute. Smalis, supra at 144. The Court concluded that this was an acquittal subject to double jeopardy principles, despite the judge’s erroneous interpretation of the statute. Id. Like the ruling in Sanabria, there was an acquittal because the judge’s ruling clearly related to a factual element — recklessness.
In Scott, the Court noted, “[I]t is entirely possible for a trial court to reconcile the public interest in the Government’s right to appeal from an erroneous conclusion of law, with the defendant’s interest in avoiding a second prosecution. In United States v Wilson, 420 US 332; 95 S Ct 1013; 43 L Ed 2d 232 (1975), the court permitted the case to go to the jury, which returned a verdict of guilty, but it subsequently dismissed the indictment for preindictment delay on the basis of evidence adduced at trial.” Scott, supra at 100, n 13. See also United States v Ceccolini, 435 US 268; 98 S Ct 1054; 55 L Ed 2d 268 (1978); United States v Cicco, 938 F2d 441 (CA 3, 1991). Had this case been so postured, the defendant’s legal duty claim would have been preserved for postverdict appeal, and the prosecution could have contested the correctness of the trial court’s ruling without any potential double jeopardy problem.
For example, in Ceccolini, n 5 supra, the trial court granted a motion to suppress testimonial evidence of guilt after making a finding of defendant’s guilt and set aside the guilty verdict because of the ruling on the suppression motion. Appeal was allowed because reversal would require *643nothing more than reinstatement of the verdict. See also United States v Kopp, 429 US 121; 97 S Ct 400; 50 L Ed 2d 336 (1976); United States v Morrison, 429 US 1; 97 S Ct 24; 50 L Ed 2d 1 (1976); United States v Rose, 429 US 5; 97 S Ct 26; 50 L Ed 2d 5 (1976).
MCR 6.419 may be problematic in this regard because it prohibits reservation of the court’s decision on a defense motion for a directed verdict brought at the close of the prosecution’s case.