(specially concurring):
A dissent on my part as to the giving of the Allen charge in this case would not affect the outcome. I, therefore, refrain from it at this early stage of my Federal Judicial career. I do wish by this specially concurring opinion, however, to record my views with reference to the use of the Allen or “dynamite” charge in Federal criminal prosecutions.
I realize that as long as Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) stands it is our duty to follow it. I entertain the thought that if it were submitted to the Supreme Court today the result might not be the same as it was in 1896. I cannot see that the qualifications, reservations, and escape clauses customarily used in modern versions of the charge save it from being what it is, and what the jury believes it *740to be, a direct appeal from the Bench for a verdict.
Before proceeding further, however, I would like to set out the exact form of the charge which did receive approval in the Allen case, supra.
As taken from Page 501 of 164 U.S. Reports, page 157 of 17 S.Ct. the charge approved on appeal was as follows;
“That, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments ; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority”.
The cases show that this instruction has frequently been extended and embellished, far beyond the language just quoted.
In the instant prosecution, it is significant that there had already been one hung jury in a previous trial. At 12:37 P.M. on the second day of deliberation, the record quotes the District Judge as saying “this seems to be a rerun of the last case from beginning to end”. When the jurors returned from lunch, and without their requesting further instructions, the Court gave what is now commonly referred to as the Allen charge, but it did not follow the 1896 precedent in several particulars. For example, the jury was told “all trials are expensive. Your failure to agree upon a verdict will necessitate another trial equally as expensive. * * * you should consider that the case must at some time be decided”.
Certainly, all trials are expensive. The Government knows this when the prosecution is begun. To me, expense is never a consideration either to be mentioned or entertained in the dispensation of justice. In these days of ever increasing governmental costs, it requires no wild flight of the imagination to note what an ordinary juror thinks about the expenses of the government or how a reminder of expenses will likely affect his reasoning and reactions.
Moreover, I am not aware of any law which requires that a case “must at some time be decided”. True, under justifiable circumstances a case must be tried, but it is intrinsic in the jury system that a jury may never be found to agree unanimously on the guilt or innocence of a person charged with crime. I have known of many cases that were tried to as many as three juries and agreement was never reached. It is my belief that no law requires any criminal prosecution to be decided, but simply requires that it be submitted to a fair and impartial trier of the fact.
Article III, Section II, Clause 3 of the United States Constitution requires that the trial of all crimes, except in cases of impeachment, shall be by a jury. The Sixth Amendment commands that in all criminal prosecutions the accused shall enjoy the right to a trial by an impartial jury. To my mind this means, and ought to mean, a jury free of every influence except the law and the evidence.
I agree with what Judge Brown said in Huffman v. United States, 5 Cir., 297 F.2d 754 (1962). “The strength of the jury system is its absolute, real, actual independence. It must take its instruction on the law from the Judge, but the jury alone determines the facts.” “ * * There is no longer any place for the Allen charge.”
I likewise heartily agree with what Judge Wisdom said in Andrews v. United States, 5 Cir., 309 F.2d 127 (1962), 'and *741in Green v. United States, 5 Cir., 309 F.2d 852 (1962). See also United States v. Rogers, (Cir), 289 F.2d 433 (1961).
I recall the words of Mr. Chief Justice Fuller in Starr v. United States, 153 U.S. 614, 14 S.Ct. 919, 38 L.Ed. 841, “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling”.
I also recall the words of Mr. Justice Frankfurter, in a different situation but clearly analogous, “An experienced trial judge should have realized that such a long wrangle in the jury room as occurred in this case would leave the jury in a state of frayed nerves and fatigued attention, with the desire to go home and escape overnight detention, particularly in view of a plain hint from the judge that a verdict ought to be forthcoming”. Bollenbach v. United States, 326 U.S. 607, at 612, 66 S.Ct. 402, at 405, 90 L.Ed. 350.
There is no intention of criticizing the District Judge for using this instruction. It is being done all the time, and it seems to the writer from considerable trial experience that the practice is growing instead of diminishing. It likewise seems from practical experience that after a jury has retired to consider its verdict, has done so for some time, and has indicated that it is in hopeless deadlock, every juror, not being trained in the law, understands from the Allen charge that what the Judge wants is a verdict. So, there the previously reluctant juror stands, fancying himself in opposition to the wishes of a United States Judge, which is about the last position in which he ever wanted to find himself. He is only exercising everyday human nature when he gets out of that unhappy predicament just as quickly as he can.
The real burden of what I am saying is that the essential meaning of Constitutionally guaranteed trial by jury is that once the jury has retired to consider of its verdict it should not be subjected to so much as the appearance of any influence from any source for the purpose of producing a verdict. The jurors should be left to the unhampered expression of their own consciences, independently arrived at.
In expressing these views I do so with greatest deference to the opinion of the able, dedicated, experienced Judges who feel that there was no reversible error in the charge used here.