(dissenting).
Under the majority holding the State’s rights of appeal in criminal cases have been broadened far beyond the limited rights provided by statute. The holding, in my opinion, amounts to judicial legislation.* In applying the reasoning of the majority, I suppose it may be said that every order dismissing a criminal case “in effect” quashes the information. The word “quash” has a variety of meanings, and by applying the broad meanings of the term a dismissal of a criminal case “in effect” quashes the information irrespective of how the dismissal is directed. For example, an order of dismissal based on a jury verdict of acquittal also “in effect” quashes the information. I am of the opinion, however, that the Legislature did not have the broad meaning in mind when it enacted Section 29-28-07, N.D.C.C., which provides, in part, that the State may appeal from “an order quashing an information.” That section has reference to Chapter 29-14, N.D.C.C., which provides for and limits the grounds for a motion to quash. The grounds are set forth in Section 24-14-04, N.D.C.C. Failure on the part of the State to prove a prima facie case is not a ground for a motion to quash under that section.
Furthermore, the defendant in this case did not move to quash the information. *736He pleaded not guilty to the charge and the case went to trial before a jury. At the close of the State’s case the defendant moved for an advised verdict of acquittal under Section 29-21-37, N.D.C.C. The trial judge determined that the State had failed to prove a prima facie case but did not advise the jury to acquit. Instead, the trial court ordered a dismissal of the case and issued a discharge of the defendant, which was delivered to the sheriff. The State served and filed a notice of appeal, which states that the appeal is taken from the order of dismissal pursuant to Section 29-28-07, N.D.C.C. This section limits appeals taken by the State to the following:
“1. An order quashing an information or indictment or any count thereof;
“2. An order granting a new trial;
“3. An order arresting judgment; or
“4. An order made after judgment affecting any substantial right of the state.”
The State has only such rights of appeal in criminal cases as are provided in the above statute. State v. Bauer, 153 N.W.2d 895 (N.D.1967); State v. McEnroe, 69 N.D. 445, 287 N.W. 817 (1939).
An order made by a district court in a criminal case, not included in the orders enumerated in the above-quoted statute, is nonappealable by the State. State v. Fortune, 29 N.D. 289, 150 N.W. 926 (1915).
The right to appeal in this state is purely statutory. Section 109, North Dakota Constitution. The right is not conferred by the constitution and may be exercised only as prescribed by statute. An appeal embraces only that which is contemplated by the law enacted by the Legislature. State v. McClelland, 72 N.D. 665, 10 N.W.2d 798 (1943).
An order quashing an information is ap-pealable by the State, but an order dismissing a case and discharging the defendant in a criminal case where the defendant has entered a plea and the case has gone to trial is not an order quashing an information, nor is it likened unto an order quashing an information.
A motion to quash an information must be made before the defendant pleads. Section 29-14-01, N.D.C.C. The grounds are limited to those set forth in Section 29-14 — 04, N.D.C.C. In that section no reference is made to a sufficiency of proof adduced at the trial.
The trial court, in this instance, found that the State had failed to prove a prima facie case. No motion to quash had been made and no statutory defects are alleged or appear which constitute grounds to quash the information. Furthermore, if such grounds did exist they were waived, except for such grounds as were available upon a motion in arrest of judgment. Section 24-14-12, N.D.C.C.; State v. Simpson, 78 N.D. 571, 50 N.W.2d 661 (1951).
The statute also provides that an order quashing an information is not a bar to future prosecution for the same offense. Section 29-14-13, N.D.C.C. This section does not harmonize with the holding of the majority as “future prosecution for the same offense” would place the defendant in jeopardy a second time for the same offense. An order dismissing the case and discharging the defendant after a plea of not guilty, and the State having produced its proof and rested, such order cannot properly be categorized as an order quashing the information under our statutes.
The order sought to be appealed from here is not one from which the State may appeal. The appeal, in my opinion, should be dismissed. State v. Bauer, supra; State v. McEnroe, supra; State v. Fortune, supra. In each of the foregoing cases appeals were dismissed for similar reasons.
If the trial court exceeded its jurisdiction in ordering a dismissal of the case and discharging the defendant, as claimed by the State, and there is no appeal allowable from the order, or any other plain, speedy or adequate remedy, perhaps the order *737could be reviewed on a writ of certiorari pursuant to Section 87 of the North Dakota Constitution and Chapter 32-33, N.D.C. C. The purpose of such review would be to determine whether the trial judge pursued regularly the authority vested in him by statute or whether he exceeded his jurisdiction.