delivered the opinion of the court.
The appellant, together with two co-defendants, was found guilty of arson before the district court, sitting without a jury. All three defendants were tried jointly upon the same charge, and all were represented by Mr. Walter Scott of Laramie as retained counsel. On appeal appellant was represented by Bert T. Ahlstrom, Jr., of the Wyoming Legal Services Office in Laramie, and proceeded in forma pauperis.
At about 3:15 the morning of December 9, 1970, three adjacent buildings on First Street in Laramie, Wyoming, were partially damaged by fires which were caused by fire bombs constructed of partially filled bottles of gasoline with a rag stuffed in the neck serving as a wick. These were referred to as “Molotov Cocktails.” At two different times on the morning of the fire — at about 2 a.m. and 2:20 a.m. — appellant and the two co-defendants were in the vicinity of the burned buildings. One of the three buildings was the Townsend Club, also referred to as Everybody’s. Apparently the Townsend Club customarily remains open rather late. On the first trip to the Club one of the defendants, not the appellant, got out of a car to determine if the Club was open and found it was not. The passengers in the two cars that went there thought the Club had not yet opened but that it might be opened later. They drove around for about 20 minutes and then drove back to the Club and, without anyone emerging from either car, they determined the Club was not open. The occupants of the two cars then went to their respective homes. Shortly thereafter the appellant and the two co-defendants met and drove in the car of a co-defendant to a filling station. One of the co-defendants purchased 25 cents worth of gasoline and put it in a can which was then placed in the automobile. Appellant did not participate in the purchase of the gasoline although he was with the other defendants at the time. He had gone into the station and purchased some nuts. Appellant stated to the police the gasoline was used in an attempt to start his car by pouring it directly into the carburator. He further stated that one of the other defendants actually poured the gas into the carburator while he was in the car attempting to start it. Subsequent investigation by the police seemed clearly to establish that the air cleaner had not recently been removed from the carburator, and the cleaner would have to be removed to pour gas into the carburator. He also stated to police that the purchase of the gas and the attempt to start his car occurred at about midnight, whereas the uncontradicted testimony at the trial showed the gasoline was purchased at about 3 a.m.
On April 7, 1971, and at the close of all the evidence, the trial court found the three defendants guilty of first degree arson as charged.
The court, upon agreement of the defendants and pursuant to Rule 33 of the Wyoming Rules of Criminal Procedure, ordered a presentence investigation. All three defendants filed within ten days a joint motion for new trial on April 19, 1971. On May 3, 1971, defendants were brought before the court for sentencing. They were accompanied by their counsel who had represented all three of them during the trial. On that same day judgment and sentence was entered finding the appellant guilty of “Arson in the Second Degree,” for which he was sentenced to the State penitentiary for a period of not less than 12 months and not more than 12 months and one day. Whereupon, on May 27, 1971, appellant filed his notice of appeal.
The two co-defendants were respectively sentenced to terms of not less than 12 nor more than 18 months, and not less than 12 nor more than 13 months upon second degree arson. Neither of the co-defendants has appealed. There were certain disclosures .made in the presentence hearing *941which seemed to have a bearing upon the sentences imposed.
Appellant argued there was not sufficient evidence for the finding of guilty and, further, the trial court abused its discretion in failing to grant a new trial.
Upon oral argument the State was asked what evidence there was against the appellant. This evidence — with which appellant does not seriously disagree — is as follows:
1. Appellant was with the two co-defendants and present at the filling station when one of the co-defendants purchased gasoline which was placed in a can.
2. Appellant stated to police that the gasoline so purchased was used in an attempt to start his car, while the evidence clearly showed this was not the case.
3. Appellant denied to police that he was near or in the area of the burned buildings the morning of the fires when, in fact, he with several other people, was in an automobile that was driven past the buildings on two separate occasions about an hour before the fires were set.
The State’s case was based solely upon the false and misleading statements made to police by the appellant, and by his presence at a filling station when one of the co-defendants purchased a small amount of gasoline which was placed in a can. While all the evidence against the appellant is circumstantial this is not unusual because the very nature uf the crime of arson ordinarily dictates that the evidence will be circumstantial.
While we believe the circumstantial evidence against the appellant was sufficient to sustain the finding of guilty, the unusual events after the trial cause us to give consideration to appellant’s motion for a new trial. At the sentence hearing the trial court considered statements made by defendants to the State Probation Officer as part of the presentence investigation. The presentence report contained admissions by the other defendants that they were in fact guilty, but the appellant was not involved in the matter. The trial court asked appellant’s attorney if he had any comments on the report on behalf of the three defendants as provided by Rule 33(c) (2), W.R.Cr.P. The attorney stated appellant’s " * * * biggest sin here was probably trying to help his friends and [he] got involved in this way.” The court replied that this would make the appellant an accessory and equally guilty.
Also, at the sentence hearing one of the co-defendants told the court the appellant was not involved in the arson. Appellant said he had nothing to do with the fires, but admitted he had lied about activities of the other defendants. The trial court stated it would assume this was true because there was no proof to the contrary. The prosecuting attorney said if he assumed what had been said was true the appellant would be guilty as an accessory. It may be the appellant was an accessory, but he was not charged as such. We therefore think it was erroneous for the trial court to consider such possible violations in deliberating the motion for new trial.
Under all the circumstances in this case we think it was error for the trial court to have denied the appellant’s motion for new trial, and the cause must be remanded with instructions to grant a new trial to this sole appellant.
Some comment needs be made about the inherent danger of counsel representing multiple defendants, particularly when they are not tried separately. As is obvious in this case, the two co-defendants could not have given favorable information about the appellant without incriminating themselves. The appellant likewise could not change the story given to the police shortly after the arson without destroying a material portion of the defense of the other defendants, and also disclosing that statements given by the other defendants to the police as to his actions were false. It may be that the same result would have obtained had each defendant been represented by separate counsel; however, it appears clear that in this case it would have been almost impossible for counsel representing all *942three defendants to have determined the truth of the matter. Had counsel before or during trial determined or even suspected what was later disclosed he would have been obligated to advise the court of a possible conflict and request permission to withdraw as counsel.
Reversed and remanded with instructions.
GRAY, J., was a member of this Court when this matter was heard, but he did not participate in the hearing or opinion.