Matthews, Seidman and Horn. The opinion of the court was delivered by Matthews, P.J.A.D.
Defendant was tried for the murder of her husband. Although the defense of insanity was not pleaded, R. 3:12, certain testimony adduced during the trial raised the inference, at least in the mind of the trial judge, that defendant may have been temporarily insane at the time of the alleged offense. Accordingly, over the objection of counsel, he charged the jury on insanity and, relying on State v. Pennington , 131 N.J. Super. 1 (Law Div. 1974), instructed the jurors that their determination of that issue could be by a ten to two vote. The jury subsequently returned a verdict of not guilty by reason of temporary insanity by a ten to two vote.
The State appeals, basing its right to appeal the judgment of acquittal on the premise that it was the result of a non-unanimous verdict, and therefore was legally defective.
The right of the State to appeal a criminal case is circumscribed by Art. I, par. 11 of our Constitution: "No person shall, after acquittal, be tried for the same offense. * * *." Only those judgments or orders mentioned in R. 2:3-1 may be appealed by the State, and an acquittal by a trier of the facts does not fall within the scope of that rule. State v. Sheppard , 125 N.J. Super. 332, 338 (App. Div. 1973), certif. den., 64 N.J. 318 (1973). Thus, it is well settled, that the State may not appeal from a judgment of acquittal entered by the trier of the facts at the conclusion of a trial. State v. Kleinwaks , 68 N.J. 328 (1975); Newark v. Pulverman , 12 N.J. 105 (1953); State v. McKelvey , 142 N.J. Super. 259 (App. Div. 1976); Paramus v. Martin Paint , 128 N.J. Super. 138 (App. Div. 1974).
The State contends that, regardless of the foregoing, it may appeal from an acquittal which is legally defective. It urges that the trial judge erred in inviting a ten to two verdict on the insanity issue because R. 1:8-9 requires a unanimous verdict in criminal cases.
Neither the statutes nor the Constitution of this State refers to unanimity of verdicts in criminal cases.*fn1 The only reference to such unanimity is found in R. 1:8-9.
In every trial by jury the verdict shall be returned by the jury to the judge in open court. The verdict shall be unanimous in all criminal actions and shall be rendered by at least five-sixths in civil actions.
There is nothing sacrosanct about a unanimous verdict in a criminal case, however. See Johnson v. Louisiana , 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972); Apodaca v. Oregon , 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972). Nevertheless, it is judicially settled in this State that verdicts in criminal cases must be determined by unanimous
vote. State v. Cordasco , 2 N.J. 189, 202 (1949); State v. Reynolds , 41 N.J. 163, 187 (1963) cert. den., 377 U.S. 1000, 84 S. Ct. 1930, 12 L. Ed. 2d 1050 (1964). But the issue posed here does not involve the merits or lack of merits of a unanimous verdict per se , rather it is whether under the circumstances presented a verdict of acquittal may be permitted to be returned under instructions which apparently disregard the court rule. We answer that inquiry in the negative and in doing so have no hesitancy in concluding that both the trial judge below and the trial judge in State v. Pennington , above, have misread the opinions of our Supreme Court which construe or explain the applicable statutes.
In State v. Gibson , 15 N.J. 384 (1954), the court, in reviewing the nature and purpose of a pretrial sanity hearing under N.J.S.A. 2A:163-2, stated that that proceeding is civil in nature:
The second point of the appellant is that the trial court was in error in treating this as a civil proceeding and permitting the jury to return a verdict by a vote of ten to two. The argument is that this proceeding is a step in the criminal cause and therefore a unanimous verdict should be returned by the jury. The trial court proceeded on the assumption, and correctly we think, that a proceeding under N.J.S.A. 2A:163-2 is in the nature of a civil proceeding under the Constitution of 1947, Art. I, par. 9, as implemented by N.J.S. 2A:80-2, ...