dissenting.
I respectfully dissent. The trial court plainly determined, “[t]he City has failed in its burden to find the defendant guilty beyond a reasonable doubt,” after the case was submitted for trial on stipulated facts. The trial court ruled, “I find that the defendant is not guilty of the offense alleged.” Because the majority believes the trial court was mistaken in assessing the evidence for an imperfectly worded charge, the majority opinion reconstructs the trial court’s ruling, reverses, and “remand[s] for determination of guilt or innocence consistent with this opinion.’’ (My emphasis).
As I explained in my dissent to a similar opinion in State v. Melin, 428 N.W.2d 227, 234-36 (N.D.1988), this approach rewrites our statute on appeals by the prosecution and violates the Double Jeopardy Clauses of the United States and North Dakota Constitutions. U.S. Const. amend. V; N.D. Const. art. I, § 12. The “underlying idea” of the Double Jeopardy Clauses
is that the State with all its resources and power should not be allowed to make *335repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). I would affirm because our statute does not authorize an appeal by the prosecution to review an acquittal after trial and because the Double Jeopardy Clauses bar such judicial action.
Therefore, I respectfully dissent.