(dissenting). I respectfully dissent. I would reverse and remand for a new trial on the charge of second-degree murder. A finding that defendant’s right to be free from being placed twice in jeopardy was violated is supported by People v Anderson, 409 Mich 474; 295 NW2d 482 (1980), which dealt with a similar double jeopardy claim. In Anderson, the trial judge, after jeopardy had attached and over the objection of the prosecutor, halted the trial prior to the testimony of several witnesses of the prosecution, dismissed the jury, and accepted the defendant’s plea to voluntary manslaughter. The ruling of the trial judge was based on the belief that the evidence was insufficient to support a conviction of either first- or second-degree murder since the prosecution could not overcome defendant’s assertion of a justification defense. The Court further explained the trial court’s action as follows:
"The judge did not determine that there was a defective information or dismiss the murder charges on a ground unrelated to Anderson’s guilt or innocence; he did not find an abuse of discretion by the examining magistrate or prosecutor. He determined, rather, that Anderson could assert a defense of excuse, that its merits must be assessed from the standpoint of her reasonable belief, and that, based on what he had heard at trial, the prosecution had not proved and could not prove beyond a reasonable doubt that she did not believe the killing was necessary to prevent the commission of a felony. The witnesses up to that point had *614not given testimony disproving excuse 'from the belief and position of the defendant’ and the judge was convinced that testimony of the remaining witnesses would, for the same reason, be insufficient.
"That ruling was a determination of Anderson’s factual innocence of murder, although rested on questions of law.” (Footnote omitted.) Id., 490-491.
In Anderson, The Court recognized several general principles relating to constitutional protection under the Double Jeopardy Clause where the trial judge for whatever reason dismisses one or more charges after jeopardy has attached:
"The constitutional protections of the Double Jeopardy Clause are implicated only when jeopardy has 'attached’. Jeopardy attaches in a jury trial when the jury has been impaneled and sworn.
"The Clause secures the defendant’s interests in (1) the finality of judgments, and (2) protection against multiple prosecutions.
"If a trial ends in a judgment of acquittal, both interests are implicated, and there can be no retrial. This has been called 'the most fundamental rule in the history of double jeopardy jurisprudence’, and is absolute. It applies whether the acquittal is based on findings of a judge or the verdict of a jury, and whether it is erroneously based or brought about with the defendant’s voluntary participation.
"Where, however, the trial or proceeding does not end in a judgment of acquittal or conviction, only the second interest is implicated, and the constitutional protections are not absolute. The defendant has an interest in avoiding harassment from repeated proceedings and in having his guilt decided by the jury impaneled to try him. The people, however, have a competing interest in having one complete opportunity to try those accused of breaking the law. Where there is no judgment of conviction or acquittal, these interests are balanced.
"If the trial or proceeding ends without the defen*615dant’s consent, further prosecution is generally barred; the defendant’s 'valued right to have his trial completed by a particular tribunal’ was taken from him, and reprosecution smacks of harassment. An exception is recognized, and retrial permitted, where 'manifest necessity’ compelled the termination of the first trial or proceeding.
"Where the defendant himself brings about the termination of the proceeding on a basis unrelated to factual guilt or innocence, retrial is generally permitted. The defendant, having deliberately chosen to take the case from the jury cannot complain of the loss of the first trier of fact or of prosecutorial harrassment through multiple prosecutions; he must live with 'the consequences of his voluntary choice’. An exception is made, and retrial barred, - when the defendant’s motion is induced by bad-faith conduct of the prosecutor or judge.” (Footnotes omitted.) Id., 482-485.
The issue, then, is whether the trial judge’s dismissal herein constituted an acquittal on first-degree murder charges because of his belief as to the factual innocence of the defendant. It should further be noted that it is irrelevant whether the ruling resulted from the trial court’s application of an erroneous legal standard to the facts of the case.
In Anderson, the prosecution argued that as there was no "final judgment” the trial did not end in an acquittal on the murder charges. Justice Levin, writing for a unanimous Court, rejected the notion that the determination of what the judge actually did turned on how he characterized his own actions.
"To decide how a trial judge’s action should be characterized, the reviewing court 'must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged’. There is an *616acquittal and retrial is impermissible when the judge 'evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction’.
"We conclude that the judge’s decision to accept Anderson’s mid-trial plea and to dismiss the murder charge involved a resolution of factual elements of the offense charged, and was based on his belief, correct or incorrect, prematurely formed or not, that the evidence was insufficient to support a conviction of murder.” (Footnotes omitted.) Id., 486-487.
I conclude that the majority herein and prior panels of this Court in Conte and Ovegian erred in focusing on the fact that the proceedings never were completely terminated nor the juries completely dismissed. The trial court’s order dismissed first-degree murder charges against defendant and codefendants. The trial judge’s order was based upon a finding of insufficient evidence of premeditation and deliberation to sustain a conviction of first-degree murder and resulted from his misunderstanding of what constituted legally sufficient evidence in this regard. Nevertheless, I find Anderson applicable, and I would find that the trial court’s ruling constituted a factual acquittal of defendant of first-degree murder.
Further, I am not persuaded by the argument that because the prosecution succeeded in staying the proceeding and bringing an interlocutory appeal the proceedings did not result in an appeal by the prosecution of an acquittal of the defendant of one of the charges followed by trial on that charge.