(concurring in part; dissenting in part). We are asked the specific question:
"Whether, under the circumstances of this case, the trial court invaded the province of the jury when he granted the defendant’s motion for directed verdict after the jury had returned a verdict finding the defendant guilty.”1
The Chief Justice recognizes that in order to answer this question we must first determine the correct standard to be utilized by a trial court in ruling upon a motion for a directed verdict in criminal cases. We agree with the standard she adopts but do not agree that a new trial may be ordered in the instant case.
We recognize that our case law has failed in the past to clearly articulate the standard trial judges are to apply in ruling on motions for directed verdict in criminal cases.2 Moreover, we are per*378suaded, as is the Chief Justice, that the rationale of Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979), supports our adoption of the following standard to be utilized by trial courts in ruling upon these motions: Whether the evidence presented by the prosecution, viewed in the light most favorable to it, is sufficient evidence from which a rational trier of fact could find guilt beyond a reasonable doubt of each of the essential elements of the crime.
However, after adopting this standard, the Chief Justice determines it does not require reversal on the facts of this case. Her conclusion is based on a finding that the trial judge in this case did not direct a verdict, but instead exercised his discretion to order a new trial on the ground that the verdict was against the great weight of the evidence.
We disagree. As the Chief Justice’s opinion accurately reports, the defendant made separate motions for directed verdict of acquittal at the conclusion of the prosecution’s case and again at the conclusion of all of the proofs. The trial judge denied the first motion, and reserved his ruling on the second. No motion was made or argued for a new trial, and it is undoubted that none is neces*379sary to confer on the trial judge, in an appropriate case, the power to order a new trial. GCR 1963, 527.4. Nonetheless, the trial judge in this case could not properly reach the issue of whether a new trial should be ordered, pursuant to GCR 1963, 527.1(5), unless and until he first resolved the defendant’s pending motion for directed verdict, which sought to test the legal sufficiency of the prosecution’s proofs to establish a jury-submissible case. Therefore, it was necessary that, before the trial judge could properly sua sponte order a new trial on the ground contended, he must first have resolved the defendant’s pending motion for directed verdict against the defendant. Stated otherwise, even assuming arguendo that the trial judge’s order for a new trial was based on his determination that the jury’s verdict was against the great weight of the evidence, he was required to have first determined that the prosecution had presented evidence legally sufficient to establish a jury-submissible case. That determination equally required denial of defendant’s then pending motion for directed verdict of acquittal.
Thus, while the trial judge’s written order purports, in its modified form, to deal only with the matter of a new trial, it has the inescapable effect of working a denial of the defendant’s otherwise unresolved motion for directed verdict. The basic issue thereby emerges: Whether the trial judge erred in his resolution of the defendant’s motion(s) for directed verdict of acquittal?
As the Chief Justice correctly states: "Due process requires that the prosecutor introduce sufficient evidence which could justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt before a defendant can be convicted of a criminal offense, see Jackson, *380supra. If sufficient evidence is not introduced, a directed verdict or judgment of acquittal should be entered”. Coleman, C.J., p 368.
In a case where the prosecution does not introduce sufficient evidence which could justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt, the error committed is in the trial court’s failure to grant a defendant’s motion for a directed verdict of acquittal and enter judgment thereon, an error which cannot be remedied by ordering a new trial.
Certainly a trial court has the discretion to order a new trial after a guilty verdict has been returned when the court finds that verdict is against the great weight of the evidence. GCR 1963, 527.1(5). See People v Henssler, 48 Mich 49, 51; 11 NW 804 (1882), where the Court said, in pertinent part:
"The weight to be given the testimony, where conflicting, should be left to the jury. If at a subsequent time the trial court is of opinion that the verdict was not in accordance with the evidence introduced and that injustice has been done thereby, full power is possessed by the court to correct the error or mistake of the jury by granting a new trial.”
Similarly, in People v Johnson, 397 Mich 686, 687; 246 NW2d 836 (1976), where the trial court set aside a guilty verdict and ordered a new trial because it disbelieved the prosecution witnesses, we upheld its power to do so while holding that the same court could not dismiss the charges against the defendant because there was sufficient evidence produced to support a conviction. The trial court had found, in effect, that the verdict was against the great weight of the evidence; consequently, it had the discretion to order a new *381trial and to allow a second jury the opportunity to evaluate the credibility of the prosecution witnesses. However, since the prosecution’s evidence, viewed most favorably to the prosecution, was sufficient to sustain a verdict of guilty beyond a reasonable doubt, the trial court had no power to dismiss the charges before the second trial.3
We do not think the trial judge made, or could properly have made, a finding that the verdict was against the great weight of the evidence in the case before us. Instead, we find that the trial judge, after applying a standard consistent with the one we announce today, directed a verdict of acquittal.
Careful examination of the transcript of the colloquies between the court and both trial counsel which occurred at the close of all the evidence and again immediately following the jury verdict, suggests that while the trial judge may have been unsure what label to assign the relief being requested of him, he clearly understood that the issue presented concerned the sufficiency of the evidence to support a guilty verdict.
After all the evidence was in and before closing arguments to the jury, the following occurred:
"The Court: Anything further, gentlemen:
"[Defense Counsel]: Your Honor, I should just like to renew my motion again to the court on a dismissal as to Mr. Hampton, just briefly.
"Your Honor, at this time I would renew my motion as to both counts as to Mr. Hampton. And I think that now the court has before it all the testimony of the witnesses, and I believe that the testimony of the *382witnesses at this particular juncture, your Honor, reveals no evidence whatsoever that a homicide was committed pursuant to any plan, advice, or suggestion of the defendant Mr. Wayne Hampton; but in fact reveals that the homicide was a spontaneous act on the part of the defendant Lewis Griffin, who had told everyone else at the scene that the deceased would not be harmed.
"And further, your Honor, I should like to state that the testimony also indicates that the murder itself was too separated in time and action from the robbery to be considered for a felony-murder charge as to Wayne Hampton.
"And the testimony further shows, your Honor, that Wayne Hampton was merely present at the scene of the murder, and his position is no different from that of the other witnesses in the automobile.
"So as to both counts here, your Honor, I don’t think the people have sustained a prima facie case as to Mr. Wayne Hampton. I think all the testimony is diametrically opposed, uncontradicted, as to Mr. Hampton, and I would renew my motion again for the court. That is a legal question here, and that the court should on its own motion dismiss Mr. Hampton from this particular case without it going to the jury.
"The Court: Do you wish to be heard, Mr. [Prosecutor]?
"[Prosecutor]: Well, your Honor, I would merely repeat the argument that I have made on a previous occasion at the end of my proofs. I would rest on that argument. I don’t think there has been any indication, any evidence, which could negate the elements of my argument. Perhaps there is an additional element for the jury to consider, but that’s a jury question.
"The Court: The only basis on which you can get a conviction against the defendant Hampton is on the theory that he aided and abetted in the commission of this homicide. And as I recall the proofs, I’m inclined to think that you are dependent almost entirely on that evidence as to whether he was the one who pressed the release in the Buick that opened the trunk. I think everything else that you claim he did lends itself to the *383conclusion that it was not done voluntarily, that it was done under maybe two or three different species of compulsion. One, for his own protection dealing with a person considerably his senior, a former Marine, who had regaled him time and time again about his exploits, and who during all of this period of time is with Mr. Hampton’s knowledge armed with a sawed-off shotgun. And secondly, for the safety of his sister, who seemed to be dumb enough to cultivate that kind of friendship and posed the danger for her younger brother. And third, his own immaturity.
"Now I am wondering if that sort of summary of the evidence with respect to him isn’t enough to warrant the conclusion that no reasonable person could conclude beyond a reasonable doubt that he is guilty. ” (Emphasis added.)
There ensued a long colloquy between the court and the assistant prosecuting attorney, including a recitation by defense counsel of his reason for asking that the court "dismiss Mr. Hampton” which he concluded by stating:
"And I feel there has not been substantial evidence or testimony in this case to find this man guilty of anything, and I don’t think it is a case , to go to the jury. I really don’t, and I think the court on its own motion should dismiss Mr. Hampton. I don’t believe this is a case at all to go to the jury.”
The trial judge then asked:
"The Court: Do I have to decide this motion now, or can I let it go to the jury and reserve my decision?
’’[Defense Counsel]: Well, if you want—
’’The Court: Mr. Prosecutor?
’’[Prosecutor]: I think you can reserve your decision.
’’The Court: I think that’s what I’ll do. Anything further?
’’[Defense Counsel]: No, your Honor.”
*384After the jury returned a verdict of guilty of second-degree murder against Mr. Hampton, defense counsel asked for a ruling on his earlier motion which the trial judge had "reserved”. After a brief reply by the assistant prosecuting attorney the court ruled as follows:
"The Court: The whole theory of the prosecution, as I indicated before, in prosecuting Hampton was that he voluntarily aided and abetted in this killing and also in the robbery. I indicated earlier when the motion was made at the close of all of the proofs for a directed verdict, that in my judgment the only act, assuming that the evidence established that act, on which the prosecution could rely to show aiding and abetting, was the contention that Mr. Hampton was the one who pressed the release that caused the back trunk to open to permit Mr. Griffin to take out the body.
"Mr. Hampton denied that he did that. The prosecution’s star witness, Mr. Griffin’s sister, who was sitting right on the front seat, denied that he did it, and testified that Mr. Griffin himself was — I didn’t mean to say Mr. Griffin’s sister; Mr. Hampton’s sister. And she testified that Mr. Griffin himself was the one that came back into the front of the car, pressed the release to open the trunk.
"The prosecution relies on the testimony of Mr. Griffin’s sister. But her testimony, as I recall it, is pretty clear to the effect that she not only was overly excited, she was frightened, she was down on the floor of the car behind the seat. And her only basis for concluding that Mr. Hampton was the one who pressed the release was that she believes he leaned over the back seat.
"Now whether he leaned over the back seat to press the release or whether he leaned over the back seat for any other reason or whether in fact he leaned over the back seat, does not come through with as much clarity as I think the law requires if you are going to send a man away under a mandatory sentence of life imprisonment.
*385"I am not satisfied that justice was done in this case. I am not satisfied that the jury followed the Court’s instructions. I am not satisñed that the prosecution’s evidence was sufficient to convince a reasonable person beyond a reasonable doubt that Mr. Hampton is guilty. The jury’s verdict is set aside. A new trial is ordered in the case of Mr. Hampton.” (Emphasis added.)
Having once wondered on the record "if that sort of summary of the evidence with respect to [Hampton] isn’t enough to warrant the conclusion that no reasonable person could conclude beyond a reasonable doubt that he is guilty” and having later declared that he was "not satisfied that the prosecution’s evidence was sufficient to convince a reasonable person beyond a reasonable doubt that Mr. Hampton is guilty”, the court can only be understood to have set aside the verdict on the basis that, as a matter of law, there was insufficient evidence to sustain the jury verdict of guilty beyond a reasonable doubt.
If there was any question about that, it was laid to rest when the court’s written order was entered which recited:
"[T]his court hereby finds that the evidence presented was not sufficient to convince a reasonable person beyond a reasonable doubt of defendant’s guilt * * *.”
The question then is whether it was error for the court, having set aside the verdict for insufficient evidence, to order a new trial. We hold that it was.
The United States Supreme Court has held that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution precludes a second trial when conviction in the first trial was reversed by the reviewing court solely for lack of *386sufficient evidence to sustain the jury’s verdict, even though the defendant specifically requested a new trial. Burks v United States, 437 US 1, 18; 98 S Ct 2141; 57 L Ed 2d 1 (1978).
In Greene v Massey, 437 US 19, 25; 98 S Ct 2151; 57 L Ed 2d 15 (1978), decided the same day as Burks, the Court said the same result would obtain upon comparable facts following a state court conviction.
There is no justification for reaching a contrary result because a trial judge, rather than a reviewing court, has determined as a matter of law that the prosecution’s proofs are insufficient to support a finding of guilt beyond a reasonable doubt. Having found that the evidence, viewed most favorably toward the prosecution, was legally insufficient to support a finding of guilt beyond a reasonable doubt, the trial court was compelled to enter a judgment of acquittal and was thus precluded from granting defendant a new trial.4
Upon our own painstaking examination of the record in this case, conducted in conformance with the constitutionally binding standard announced in Jackson v Virginia, supra, we conclude that the trial court did not err in finding that the evidence *387produced by the prosecutor was legally insufficient to support a finding of guilt beyond a reasonable doubt.5
The trial court’s order setting aside the jury verdict against defendant should be affirmed, the order granting a new trial should be vacated, and a judgment of acquittal should be entered.
Kavanagh and Blair Moody, Jr., JJ., concurred with Ryan, J.402 Mich 828, 829 (1977). This appeal was brought by the prosecutor on the belief that the trial judge had granted the defendant’s reserved motion for directed verdict, but had done so pursuant to an incorrect standard. See, infra, fns 2, 3.
See, for example, People v Minney, 155 Mich 534; 119 NW 918 (1909), and People v Abernathy, 253 Mich 583; 235 NW 261 (1931).
In passing upon a motion for directed verdict in Minney, the trial court denied the motion, saying:
"The case may be very weak, indeed the evidence may be entirely insufficient upon which to base a conviction, and yet it does not follow that the court should direct a verdict for the defendant.”
The Supreme Court specifically disapproved of this statement, saying:
"[T]he statement of the court that it should not direct a verdict when the evidence is entirely insufficient upon which to base a *378conviction is not correct. If upon the conceded and undisputed facts there is no ground to sustain a verdict of guilty, the court should direct a verdict. The question then becomes one of law for the court.” 155 Mich 536-537.
The Abernathy Court, in language of which we specifically disapprove today, said: r
"The question of the sufficiency of the evidence is one for "the jury unless there is no evidence at all upon a material point.” 253 Mich 587.
That Court may have adopted this rule as the negative correlative to the rule that if there is no evidence on an element of the offense the trial court must direct a verdict. However, it does not necessarily nor logically follow from this latter rule that if there is some evidence on every element of the offense the trial court may not direct a verdict.
We agree with the Chief Justice that the statement in Johnson, as well as similar statements in People v Eaton, 59 Mich 559; 26 NW 702 (1886), and Abernathy, supra, to the effect that a trial judge should direct a verdict only when there is no evidence on a material element of the offense, are specifically disapproved.
Where the prosecution fails to introduce sufficient evidence on each essential element of the crime which could justify a trier of fact in reasonably concluding that the defendant is guilty beyond a reasonable doubt, due process requires the entry of a judgment of acquittal, and the trial judge clearly has no discretion to do otherwise.
Where the prosecution does introduce sufficient evidence on each essential element of the crime which could justify a trier of fact in reasonably concluding that the defendant is guilty beyond a reasonable doubt, but such technically sufficient evidence is greatly overwhelmed by contrary evidence, the trial judge has discretion to set aside a jury verdict of guilty and order retrial of the case before another fact-finder.
In the former instance, the judge is required to make a purely legal determination; while in the latter the judge is empowered, not to substitute his factual judgment for the jury’s, but to substitute another fact-finder for the original one.
We note that double jeopardy considerations do not preclude our review of the trial court’s post-verdict legal determination that the prosecution’s evidence was insufficient to support a finding of guilt beyond a reasonable doubt. A reversal of that ruling would not require the defendant to "run the gauntlet” of a new trial but would merely result in the reinstatement of the jury’s guilty verdict. See United States v Wilson, 420 US 332, 352-353; 95 S Ct 1013; 43 L Ed 2d 232 (1975).