(dissenting).
An order by a district court in a criminal case not enumerated in 29-28-07 NDCC is not appealable by the State. State v. Fortune, 29 N.D. 289, 150 N.W. 926 (1915). The statute has exclusive grounds for appeal. Allesi certainly does what the majority says it does — equates a motion to quash with a motion to dismiss. In criminal cases affecting the most substantial interest of all, i.e., — guilt or innocence, I would think it wrong to make such an equation and would reverse Allesi. See State v. Bauer, 153 N.W.2d 895, 897, and other cases cited therein. I can best state what Judge Teigen said in dissenting to Allesi:
“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.”
The majority says not the label, but rather the effect, controls. But that does violence to the clear enough wording of 29-28-07 NDCC which labels, if you please, precisely what is appealable. The decision today is judicial legislation.
A dismissal by a district judge based on presumed knowledge of the law, and in this case, some knowledge of the facts, should not be appealable unless the legislature says so in express terms. I would affirm the dismissal on the foregoing basis and therefore not reach the second question concerning the correctness of the trial judge in dismissing. I am satisfied however that the alleged conduct of Henry Howe rose to the legal dimensions necessary to constitute a “threat” and thus it became a properly chargeable offense in the information.