The opinion
*666 J. E. Townsend, J.
(dissenting). I dissent.
The judgment of acquittal was entered after the jury was sworn in and the government had presented its proofs in a case where the court had jurisdiction of the person and of the subject matter.
Clearly, "jeopardy” attached and any appeal or retrial in Federal court would be precluded by the constitutional protection against double jeopardy. Sanabria v United States, 437 US 54, 65-69 ; 98 S Ct 2170 ; L Ed 2d 43 (1978), United States v Jorn, 400 US 470 ; 91 S Ct 547 ; 27 L Ed 2d 543 (1971).
The judgment of acquittal was based upon failure to prove the fact of "intent to transport” in interstate commerce. A number of states which have double jeopardy statutes classify such elements as a "jurisdictional” element, which is not determinative of "double jeopardy” issues. State v West, 260 NW2d 215, 222-223 (SD, 1977), and cases from other states cited therein.
The Michigan Supreme Court in the case of People v Cooper, 398 Mich 450 ; 247 NW2d 866 (1976) speaking through Justice Lindemer, appears to adopt such rule on page 461 by stating as one factor important to deciding whether Federal prosecution satisfies the state’s interest, "whether the differences in the statutes are merely jurisdictional or are more substantive”.
My colleagues and I agree that the statutory differences in this case are merely jurisdictional.
If, in fact, the differences are merely jurisdictional, I conclude that an attempt to try defendant in a state court is a retrial of the same substantive offense and constitutes double jeopardy based upon the tests and reasoning approved in People v Cooper.
*667 The acquittal of defendant by Judge Kennedy decided the issue of defendant’s guilt or innocence.
I do not believe that the Michigan Supreme Court intended to permit the exercise of dual sovereignty in every situation where Federal jurisdiction fails at trial and it can be determined by special verdict or otherwise that the jurisdictional element controlled the outcome of the trial on the merits.
I would reverse.