
84 Mich. App. 460 (1978)
269 N.W.2d 641
PEOPLE
v.
McCURTIS
Docket No. 31355.
Michigan Court of Appeals.
Decided July 5, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor's Repeat Offenders Bureau, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.
Gerald Brock, for defendant on appeal.
Before: R.B. BURNS, P.J., and BRONSON and D.F. WALSH, JJ.
R.B. BURNS, P.J.
A jury found defendant not guilty of robbery armed, MCL 750.529; MSA 28.797, but guilty of criminal sexual conduct in the first degree, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). He appeals, arguing the verdicts are inconsistent. We agree.
The amended information in this case charged *462 that defendant "did engage in sexual penetration, to wit: sexual intercourse, with the COMPLAINANT and the sexual penetration occurred under circumstances involving the commission of another felony, to wit: Robbery Armed". The jury was instructed that an element of criminal sexual conduct in the first degree was the commission of a felony; specifically, armed robbery.
From the facts adduced at trial it is readily apparent how the jury arrived at its inconsistent verdicts. The complaining witness testified that she was grabbed by defendant from an apartment vestibule, forced into a nearby alley at knifepoint raped and robbed. However, on cross-examination she was asked:
"Let me, that means you really don't know whether he took the money or not, it could have been lost, or anything could have happened to it, right?"
An objection was interposed, but the trial court allowed the question:
"Do you know if he took the money?
"No."
The jury concluded that there was a reasonable doubt as to whether defendant committed robbery armed, but concluded he committed some felony. However, defendant was not charged with sexual penetration under circumstances involving the commission of just any felony, but specifically with robbery armed. The jury having found one element of the crime not to have been proven beyond reasonable doubt, there was not sufficient evidence to find guilt beyond reasonable doubt of the greater offense.
In accordance with Burks v. United States, ___ US *463 ___; 98 S Ct 2141; 57 L Ed 2d 1 (1978), when an appellate court reverses a case for insufficient evidence, it would be double jeopardy to remand the case for a new trial. Therefore, the case must be reversed and the defendant discharged.
BRONSON, J., concurred.
D.F. WALSH, J. (concurring).
I agree with Judge BURNS that retrial is barred by the double jeopardy clause, but his reliance on Burks v United States, ___ US ___; 98 S Ct 2141; 57 L Ed 2d 1 (1978), is misplaced.
The instant case was not reversed because of insufficient evidence but rather because the jury's verdict amounted to an acquittal. When the jury found the defendant not guilty of armed robbery, it necessarily found that one of the elements of the offense charged had not been established. Once acquitted, a defendant may not be reprosecuted for the same offense. E.g. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
