PEOPLE
v.
KEITH LESTER
Docket No. 77-819.
Michigan Court of Appeals.
Decided September 21, 1977.*662 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Robert L. Bunting, Assistant Prosecuting Attorney, for the people.
John A. Lyons, P.C., and Leitman & Roeser, for defendant on appeal.
Before: QUINN, P.J., and R.B. BURNS and M.F. CAVANAGH, JJ.
PER CURIAM.
This case is before us on defendant's motion to dismiss plaintiff's claim of appeal. Two reasons are advanced in support of the requested relief, namely: violation of the double jeopardy provisions of the Federal and state constitutions and lack of jurisdiction.
Defendant was tried before a jury on a charge of larceny by conversion. After hearing seven witnesses for the prosecution and accepting as true the proffered testimony of the final prosecution witness, the trial judge found that the prosecution had failed to prove title to the money allegedly converted in one McAnnally from whom it was charged defendant converted the money. On this basis, the trial judge dismissed the cause and quashed the proceedings.
The record supports the finding of the trial judge that title in McAnnally had not been proved. *663 Thus there was a failure of proof on an essential element of the crime with which defendant was charged and for which he was tried, People v Lavan, 303 Mich. 394; 6 NW2d 721 (1942). Dismissal was proper and was tantamount to acquittal on the merits, United States v Martin Linen Supply Co, 430 U.S. 564; 97 S. Ct. 1349; 51 L. Ed. 2d 642 (1977).
When the jury was sworn, defendant was placed in jeopardy, People v Anglin, 6 Mich. App. 666; 150 NW2d 532 (1967). He has been tried on the merits, and, in effect, he has been acquitted. A second trial on the merits would place him twice in jeopardy, and a second trial on the merits would be the only relief available if plaintiff prevails on this appeal. The second trial would be prohibited by the constitutional provisions on double jeopardy, United States v Jenkins, 420 U.S. 358, 370; 95 S. Ct. 1006; 43 L. Ed. 2d 250 (1975), Fong Foo v United States, 369 U.S. 141; 82 S. Ct. 671; 7 L. Ed. 2d 629 (1962). The double jeopardy argument of defendant is correct and bars this appeal.
There is no case, statute, constitutional provision or court rule authorizing an appeal by the people following the acquittal of a defendant in a criminal prosecution. Plaintiff would have us find such authority in MCLA 600.308-309; MSA 27A.308-309. We decline to do so. For the reasons discussed earlier, such an interpretation would produce an unconstitutional result. If possible, we must construe MCLA 600.308-309 to avoid an unconstitutional result, Saroki v Detroit, 73 Mich. App. 519; 252 NW2d 234 (1977). We do so by holding that MCLA 600.308-309 have no application to appeals by the people from judgments of acquittal in criminal cases.
Affirmed.