(dissenting) — I dissent. I would affirm the decision of the trial court dismissing the case.
The defendant James A. Rhinehart was charged as follows:
That the defendant James A. Rhinehart, in King County, Washington, during a period of time intervening between November 27, 1976 through November 29, 1976, did knowingly receive, retain, possess, conceal, and dispose of stolen property, to-wit: a 1975 Ford Bronco, VIN #V15GLU08341, of a value in excess of $1,500 knowing that it had been stolen and did withhold and appropriate the same to the use of a person other than Hanna Motors, Vancouver, WA.;
The prosecution was able to show that the only stolen part of the car was the chassis and all the other parts of the car had come off another vehicle. There was no testimony as to the value of the chassis. The cross-examination of an expert witness for the State, a specialist in the auto theft section of the Washington State Patrol, capsules this testimony as follows:
Q Okay. So at least, without going through every part of the car, you are prepared to concede that the wheels and the axles and the tailgates and the instrument panel and the glove box all might have come from some other car other than the Hannah car?
A All I can say is that the frame is what was from the Hannah vehicle.
Q As a matter of fact, all you can say is, all that you know positively that came from the Hannah car is the frame?
A Yes, sir.
Q So what we may be dealing with here is not possession of a stolen car but possession of a stolen frame?
A I can't really answer that.
(Italics mine.)
The trial court in dismissing the case for lack of evidence found that the State had not made out a prima facie case as to the value of the stolen goods and that the State failed to prove that defendant knew that the chassis was stolen at the time it was placed in the motor vehicle.
*717The State suggests that the case should have been submitted to the jury on the basis of a gross misdemeanor, to wit: possession of a stolen frame. However, the defendant was not charged with stealing a stolen frame. In any event the prosecutor made no motion to reduce the felony charge to a misdemeanor. In State v. Mayner, 4 Wn. App. 549, 483 P.2d 151 (1971), it was held that a court is not required to instruct on a lesser degree of crime, nor in a more detailed fashion, in the absence of a request.
Black's Law Dictionary 1164 (4th ed. 1951) defines motor vehicle as follows:
In the Uniform Act Regulating Traffic on Highways, 11 U.L.A., and similar statutes, any self-propelled "vehicle," defined as including every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human or muscular power or used exclusively upon stationary rails or tracks. The term "motor vehicles," although sometimes regarded as synonymous with or limited to "automobiles," often has a broader meaning, and includes not only ordinary automobiles, but also motorbusses and trucks, as well as motorcycles. Blashfield, Cyc. of Automobile Law and Prac., Perm. Ed., § 2.
From the above definition, it is obvious that a motor vehicle is not a frame, for a frame constitutes only a part of a motor vehicle.
From a review of the entire record, we concur with the trial judge in her findings: That there is a total absence of evidence that (1) the defendant stole the car, or (2) defendant ever possessed the stolen car, or (3) defendant made or manufactured the car sold to Doyle.
This case should be dismissed for the additional reason that the trial court's order of dismissal, the subject of this appeal, is barred by the double jeopardy clause of the state constitution (Const, art. 1, § 9).
RAP 2.2(b) provides:
The State or a local government may appeal in a criminal case only from the following superior court decisions *718and only if the appeal will not place the defendant in double jeopardy:
(1) Final Decision, Except Not Guilty. A decision which in effect abates, discontinues, or determines the case other than by a judgment or verdict of not guilty, including but not limited to a decision setting aside, quashing, or dismissing an indictment or information.
The fundamental rule that judgments of acquittal, no matter how erroneous, bar any retrial and thus forbid an appeal by the state where reversal would require a retrial has recently been affirmed in United States v. Scott, 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187 (1978). (Notwithstanding its overruling of United States v. Jenkins, 420 U.S. 358, 43 L. Ed. 2d 250, 95 S. Ct. 1006 (1975).) United States v. Scott, supra, stated at page 91:
A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.
(Italics mine.) Also, United States v. Scott, supra, citing United States v. Martin Linen Supply Co., 430 U.S. 564, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977) with approval, stated at page 97:
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.
An important reason for applying the double jeopardy rule has been stated in yet another case, Burks v. United States, 437 U.S. 1, 11, 57 L. Ed. 2d 1, 9-10, 98 S. Ct. 2141 (1978):
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow "the State ... to make repeated attempts to convict an individual for an alleged offense," since "[t]he *719constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States, 355 U.S. 184, 187 (1957); see Serfass v. United States, 420 U.S. 377, 387-388 (1975); United States v. Jorn, 400 U.S. 470, 479 (1971).
(Footnote omitted.)
In addition, this court in State v. Jubie, 15 Wn. App. 881, 552 P.2d 196 (1976), held that a trial court's dismissal of an information following a challenge to the sufficiency of the State's evidence was in essence a judgment of not guilty and an acquittal when the trial court weighed some or all of the evidence in arriving at its conclusion. It was reasoned that in such a case an appeal would be violative of the double jeopardy clause.
The trial court in granting defendant's motion to dismiss in the subject case stated:
Well, I do feel the State could have had a better case as far as motor identification numbers. We are left without that information. We are left without whether it is a hydramatic automatic or stick shift. That evidence I am sure is not before the Court. We just have testimony of the owner that at the time that he had it it was a stick. You are asking the jury to speculate, and of course taking the inference strongest in favor of the State as to value, I would say that you just have not proved that the parts that were not from the original car he purchased for $1200 were worth over $1500. It is asking the jury to speculate. The proof is not there.
(Italics mine.)
It is clear that the court weighed the State's evidence in coming to its conclusion to dismiss the information based upon defendant's challenge to the sufficiency of the evidence. In the subject case RAP 2.2(b) specifically prohibits the State's appeal since it would place the defendant in double jeopardy. The State is without authority to appeal.
*720I would have affirmed the trial court.
Reconsideration denied December 21, 1978.
Appealed to Supreme Court February 21, 1979.