dissenting.
Nunez has been tried twice. In each trial, he admitted striking the blow, admitted causation, and claimed justification. The verdicts have finally found him guilty only of negligent homicide and not the more serious charges of first degree murder, second degree murder, and manslaughter. The jury was instructed on each of these charges and found Nunez guilty of only the lesser included offense of negligent homicide. The effect of these verdicts is to work an implied acquittal of each of the greater charges. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); State v. Maloney, 105 Ariz. 348, 464 P.2d 793 (1970).
Nunez having thus been acquitted of murder and manslaughter, all agree that the double jeopardy clause prohibits the state from retrying him on those charges. At 863. The question before us is whether, on retrial for negligent homicide, Nunez may be found guilty on the basis that he committed negligent homicide with the more culpable mental states required for murder or manslaughter, the very crimes of which he has been acquitted.
Because Nunez admitted striking the fatal blow and defended only on the grounds of justification, the verdict of negligent homicide and resultant acquittal of murder and manslaughter necessarily mean the following:
1. The jury found that Nunez acted without justification.
2. The jury found Nunez’s blow caused the death.
3. The jury found that Nunez did not act with the culpable mental states required by law for murder or manslaughter; thus, Nunez did not act intentionally, knowingly, or recklessly when he killed the victim. See A.R.S. §§ 13-1103, 13-1104, and 13-1105.
Under the facts of this case, there is no other legal explanation for the verdicts. The state concedes there is none (Appel-lee’s Answering Brief at 8); the majority advances none; the facts permit no other hypothesis.
*280We may speculate on everything from confusion to compromise to explain the juries’ verdicts. While the true explanation may be compromise, there is “clear case law that the possibility that the jury acquitted out of a desire to compromise ... is not a basis for refusing to apply” the doctrines of collateral estoppel and double jeopardy. United States v. Mespoulede, 597 F.2d 329, 333 n. 7 (2d Cir.1979).
That, however, is exactly the conclusion reached by the majority. The court concludes, in effect, that though the juries in the first two trials must have found that Nunez did not act intentionally, knowingly, or recklessly, he may be prosecuted for a lesser included offense on the theory that he acted intentionally, knowingly, recklessly, or negligently. Indeed, the state concedes “that the conviction for negligent homicide, in his second trial, necessarily acquitted him of the mental states of knowing, intentional, or reckless behavior.” Ap-pellee’s Answering Brief at 8. In my view, once the juries determined that Nunez did not act with the first three culpable states, on retrial for negligent homicide, Nunez may be convicted only on proof of the specific culpable mental state for that crime. This result is required by the principle of collateral estoppel.
It is true, as the majority points out (At 867), that no final judgment was entered. But double jeopardy applies when the verdict is returned, even though no final judgment has been entered. Green, 355 U.S. at 188, 78 S.Ct. at 224. If the law were otherwise, the state could prosecute over and over, despite adverse verdicts, so long as it or the court found some way to delay the entry of judgment. This has never been the law. Id.; Ball v. United States, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896).
The same rule applies to collateral estop-pel, which, as the majority acknowledges, is subsumed under the doctrine of double jeopardy. At 865; Ashe v. Swenson, 397 U.S. 436, 446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Judge Friendly’s succinct statement of the relationship of these principles applies directly to this case:
[T]o permit the government to force a defendant who has won an acquittal to relitigate the identical question on a further charge arising out of the same course of conduct, selected by the Government from the extensive catalog of crimes furnished it in the Criminal Code, would permit the very abuses that led English judges to develop the rule against double jeopardy long before it was enshrined in the Fifth Amend-ment____ The very nub of collateral estoppel is to extend res judicata beyond those cases where the prior judgment is a complete bar. The Government is free, within the limits set by the Fifth Amendment, to charge an acquitted defendant with other crimes claimed to arise from the same or related conduct; but it may not prove the new charge by asserting facts necessarily determined against it on the first trial, no matter how unreasonable the Government may consider that determination to be.
United States v. Kramer, 289 F.2d 909, 916 (2d Cir.1961) (citations omitted, emphasis added).
Thus collateral estoppel is invoked in criminal cases on a verdict of acquittal, despite the lack of final judgment. U.S. v. Venable, 585 F.2d 71, 77-77 (1978); Mayers and Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 HARV.L. REV. 1, 3 at n. 10 (1960). “At least since Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237 [92 L.Ed. 180] (1948), it has been the rule in the federal courts that the doctrine of res judicata applies to criminal as well as civil proceedings and operates to preclude both those matters in issue which the verdict determined, though the offenses be different.” Wingate v. Wainwright, 464 F.2d 209, 211 (5th Cir.1972) (emphasis added). Indeed, “with virtual unanimity, the cases have applied collateral estoppel to bar the government from relit-igating a question of fact that was determined in defendant’s favor by a partial verdict." Mespoulede, 597 F.2d at 336 (emphasis added).
Because the jury found that Nunez did not kill intentionally, knowingly, or reck*281lessly, Nunez cannot be convicted of a lesser crime on the theory he killed the same victim while acting intentionally, knowingly, or recklessly. I dissent from the contrary conclusion reached by the majority.