¶1The opinion of the court was delivered by
¶2The respondent was charged in an information filed in the superior court for Spokane county with the crime of grand larceny. To this charge he plead.ed not guilty, and a jury having been impaneled and sworn, the cause proceeded to trial upon the evidence. At the conclusion of the state’s case respondent’s counsel moved the court to discharge the jury from further consideration of the case, and the respondent from custody, on the ground that the evidence upon the part of the state was insufficient to warrant the court’s submitting the cause to the jury. This motion was granted and the state has appealed from that order. Respondent has moved this court to dismiss the appeal and bases the motion upon various grounds, among others that the order made is not appealable, and that respondent has been once in jeopardy and cannot again be tried for the same offense.
¶3We think the motion must be granted. Subdivision 7, section 1, Laws 1893, p. 120 (section 6500, Bal. Code), is as follows:
“ But an appeal shall not be allowed to the state in any criminal action, except when the error complained of is in setting aside th° indictment or information, or in arresting the judgment on the ground that the facts stated in the indictment or information do not constitute a crime, or is some other material error in law not affecting the acquittal of a prisoner on the merits.”
¶4The ruling here complained of does not go to the sufficiency of the information or to the decision of a question of law, but to the correctness of the court’s conclusion as to the facts relied upon for a conviction. It was the judg*484ment of the court upon the merits of the case, and constitutes, we think, an acquittal on the merits. From such a judgment the state has no right of appeal.
¶5The information sufficiently charged the crime. A lawful jury had been impaneled and sworn. The court had jurisdiction. The acquittal was upon the merits of the case as determined by the court. Under such circumstances we think the defendant has been once in jeopardy. Constitution of Washington, art. 1, sec. 9; U. S. Consti-. tution, art. 5 of amendments; Cooley, Constitutional Limitations (5th ed.), pp. 326, 327; United States v. Sanges, 144 U. S. 310 (12 Sup. Ct. 609).
¶6Upon the oral argument of the cause counsel for the state was disposed to concede that the respondent could not again be placed upon trial for the crime charged against him in this information. In this view we concur, and the motion to dismiss must be granted.
¶7Scott, C. J., and Dunbar, Anders and Beavis, JJ., concur.