(dissenting) :
The principal question raised on this appeal concerns the propriety of the Allen-type charge 1 given by the judge to the jury. The decision does not turn solely upon a consideration of Allen charges in general. If that were the only issue it would present difficulty enough, as evidence by the growing disenchantment of some of our most respected judges with its use. Our case, however, is marked by a unique feature which made the supplemental instruction particularly unsuitable.
After approximately fifteen hours of deliberation the jury sent the trial judge a note which read:
“We have a juror that stated: ‘the judge will get all over those that vote not guilty.’
*1345This juror has cursed, made slanderous remarks along with another juror throwing chewings gum. These two jurors are sister-in-law and want to go home.
The vote is 10 guilty and 2 not guilty.
It is a solid-vote and no one will give.”
In response to this note the judge delivered his supplemental charge. Its appropriateness must be judged in relation to the note, which not only advised the judge how the jury stood numerically, but also conveyed to him a brief but enlightening picture of conditions in the jury room. The question presented for review is whether the supplemental charge, which did not so much as advert to the note, was a proper response under these circumstances.
I
As a preliminary matter, it may be helpful to consider generally the respective roles of judge and jury, and the effect of the use of the Allen charge upon each.
It is accepted in our modern jurisprudence that jurors must be allowed to deliberate free from any outside influence.
[T]he 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.2
The courts have zealously guarded jurors in their decisional function, so that truth may be determined upon their independent view of the evidence under the judge’s instructions as to the law.
Of all who come in contact with the jury, the trial judge commands the greatest respect, and he is uniquely in a position to influence the jurors. As Chief Justice Fuller put it in Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841 (1893), “[i]t 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.”
With notable exceptions3 the Allen charge is still generally in vogue, at least in modified form. Yet it has been criticized increasingly in recent years, both by judges 4 and commentators.5 It *1346has been described in our own circuit as “approaching] the limits to which the court should go in suggesting to jurors the desirability of agreement and avoidance of the necessity of a retrial before another jury.” United States v. Rogers, 289 F.2d 433, 435 (4th Cir. 1961).
Over the span of nearly three-quarters of a century since the Supreme Court upheld the specific supplemental charge given in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), many able jurists have investigated procedures to deal with deadlocked juries. In fact, as noted in the majority opinion, the American Bar Association Project on Minimum Standards for Criminal Justice and the Committee on the Operation of the Jury System of the Judicial Conference of the United States Courts have both recommended that the Allen charge no longer be given to deadlocked juries, and have recommended alternative supplemental instructions.6 Better still, both reports express a preference for including this subject matter in the original charge to avoid over-emphasis. The majority opinion faithfully reports these recommendations, but is not deflected by them.
Likewise, the Third Circuit in the recent case of United States v. Fioravanti, 412 F.2d 407 (3rd Cir. 1969), has forbidden future use of the Allen charge and, where some form of supplementary instruction seems appropriate, has recommended use of the charge formulated in Mathes & Devitt, Federal Jury Practice and Instructions, § 79.01.7
*1347The essentially coercive nature of the stress in the supplemental charge upon the importance of achieving a verdict is manifested by the various characterizations it has been given by its advocates and detractors alike. It is traditionally known as the “dynamite charge,” and it has variously been referred to as “nitroglycerin,” Huffman v. United States, 5 Cir., 297 F.2d 754, 759 (1962) (Brown, J., dissenting); the “third degree instruction,” Leech v. People, 112 Colo. 120, 146 P.2d 346, 347 (1944); and the “shotgun instruction,” State v. Nelson, 63 N.M. 428, 321 P.2d 202, 204 (1958). This eloquently attests its presumed effect. “Dynamite,” it must not be forgotten, is dangerous and should be handled with care.
II
In this case we are not called upon to determine the propriety of an Allen-type charge in any and all circumstances. Accepting arguendo the general proposition, as stated in the majority opinion, that in an appropriate situation a “calmly dispassionate balanced effort on the part of a trial judge to induce a verdict” does not invade the province of the jury, this general proposition cannot decide the present case.
Those jurisdictions which allow Allen type charges do so on the assumption that neither the language used 8 nor the circumstances under which they are given 9 makes them coercive. The Allen *1348charge should never be regarded as a routine expedient. A judge, before resorting to it, must critically appraise the hazards of its use in the particular setting.
One situation especially fraught with danger exists after a judge has been informed how the jury is split. Much that judges tell juries may fall short of outright threat and still exert subtle pressure upon them. In recognition of this fact the Supreme Court, in Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 136, 71 L.Ed. 345 (1926), held that the judge may not make inquiry as to the division of the jury. Mr. Justice (later Chief Justice) Stone noted that such an inquiry “can rarely be . resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded.” 10
The “improper influence” in Brasfield to which Justice Stone alluded was heightened when the trial judge gave an Allen charge after making inquiry as to the jury’s division.11 The judge’s knowledge of the jury’s division spotlighted the minority jurors. They were made aware that the judge knew of their dissenting position. Despite the superficial neutrality of the judge’s words, the tendency of the charge was to make the minority feel that the judge’s observations and exhortations were aimed particularly at them. The impression upon the minds of the minority was, in effect, that the judge considered their stance obstructive and was urging them to yield.
In the instant case the judge did not inquire how the jury vote stood. Through no fault of the judge, the foreman’s unsolicited note revealed this information but, as I shall endeavor to show, this variation is not significant in determining the applicability of Brasfield.
Only rarely have courts considered the propriety of delivering an Allen charge after the status of the jury’s balloting had been voluntarily divulged to the judge. Bowen v. United States, 153 F.2d 747 (8th Cir. 1946), cert. denied, 328 U.S. 835, 66 S.Ct. 980, 90 L.Ed. 1611 cited by the majority, did hold that where the judge is apprised of the jury’s balloting without his having made inquiry, there is no impropriety in giving the charge.12 This would form an exception to the Brasfield rule. However, the implications of Brasfield would seem to apply equally whether the information was promoted by the judge’s inquiry or was thrust upon him. The pressure on the minority jurors is the same in both instances.
Chief Justice Burger, speaking as a judge of the Court of Appeals for the District of Columbia Circuit, had occasion in Mullin v. United States, 123 U.S.App.D.C. 29, 356 F.2d 368 (1966), to *1349review a trial in which the vote had been disclosed to the judge without his solicitation. He said,
It would have been a precarious undertaking for the Judge to give a supplemental charge to consider each other’s views when he was already advised that only 4 of 12 jurors voted for acquittal. He could reasonably assume that if he gave such charge knowing that only 4 jurors had to be persuaded to change their votes, defense counsel would protest vigorously on appeal that the only correct solution was to declare a mistrial * * *. 356 F.2d at 370.13
What is it, then, that makes it a “precarious undertaking” for a judge to give an Allen-type charge after he has been made aware how the vote stands? It is true that whenever a judge gives the supplemental charge he is aware that the jury has been unable to reach a verdict. That is why the charge is given. It is also true that whenever the judge resorts to the charge the jury realizes that he knows of their deadlock. For these reasons it has been suggested that, whether or not the judge has been told the lineup in the jury room, the supplemental instruction would have the same effect on the minds of the minority jurors. I respectfully disagree. When the judge does not know how the jurors have voted, and a properly balanced Allen charge is delivered, the jurors may readily accept it as addressed to the entire panel.
However, when the jurors know that the judge has been advised precisely how they are divided — in this case 10 to 2— the effect of an Allen charge is unavoidably to add the judge’s influence to the side of the majority, and this is so regardless of whether the initiative for disclosure came from the judge or the jury. In this predicament minority jurors are likely to develop a sense of isolation and the impression that they are the special object of the judge’s attention. This is so even if the instruction includes, as in the instant case, the bland boiler-plate language about the majority also considering the wiews of the minority. The formula generally used as “balancer” is insufficient here because it does not relieve dissenting jurors of the feeling that the judge is goading them to agree upon a verdict.
Ill
Aside from the undesirable effects flowing from disclosure of the precise division in the jury room there was in this case, in addition, a seriously aggravating circumstance. The message about the judge “get [ting] all over those that vote not guilty” imperatively called for a clear. reassurance to the minority.
The statement should have signaled the judge that without an instruction explicitly counteracting it, a minority juror would consider the judge’s silence a tacit confirmation of the threat. It was incumbent upon the judge to restore the panel’s confidence in his neutrality which had been questioned in the jury room with sufficient force to prompt its mention in the note.
When the judge gave the additional charge “to induce a verdict” with no attempt to disabuse the jurors’ minds, the effect may well have been decisive. The compounding error was in not tailoring the charge to the existing circumstances. Judges who find Allen charges otherwise appropriate might well hesitate to uphold it here.
In the absence of language to offset the utterance in the jury room, it is reasonable to infer that at least some of the jurors perceived the situation as follows: (1) the judge has been told the precise division and he knows about the statement made in the jury room that a verdict of not guilty would incur his displeasure; yet (2) he has said nothing in reply to assure us of his neutrality; but instead (3) he has stressed the importance of reaching a verdict; therefore, *1350(4) to avoid the judge’s disfavor, I will vote guilty.14 Not only jurors inclined to acquit were likely to be affected, but those inclined to convict perhaps were stiffened in their resolve.
Like the other members of this court I have the highest regard for the ability and the fairness of the judge who presided at the trial, and reject the notion that he sought in any way to coerce the jury. However, it is plain that one or more of the jury entertained a doubt about the judge’s attitude. This should not have gone unnoticed in the supplemental charge.15 The judge’s answer to the jury’s communication was a lecture on the importance of attaining agreement and a verdict. This is only one side of the coin. Not a word was spoken to disavow the attitude attributed to him. The majority opinion does not come to grips with this significant aspect of the case, which colors the use of the Allen charge.
The prevailing opinion finds support in the fact that very shortly after the supplemental charge the jury returned its verdict of acquittal as to Governor Barron. It implies that the charge may well have been helpful rather than harmful to the defense. The logic of this reasoning is less than compelling, for it is as likely that the jury’s deadlock was never in respect to the Governor but the appellants. If so, the supplemental charge may well have impelled them to convict. If there is a reasonable possibility that those who doubted the guilt of any defendant were pushed by the supplemental charge into joining the majority, the fairness of the trial was impaired.
When the incriminating evidence seems cogent to the judges, there is a temptation to condone trial errors. In a jury trial, however, the jurors are the ones to be convinced and no constraint upon their independent judgment can be condoned as harmless. “[T]he question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials in the federal courts.” Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 406, 90 L.Ed. 350 (Frankfurter, J.).
For these reasons I would reverse the appellants’ convictions and award them a new trial.
. For the text of the charge in the instant case see the majority opinion at note 4.
. Judge Coleman, concurring in Thaggard v. United States, 354 F.2d 735, 741 (5th Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966).
. The Third Circuit has recently outlawed future use of the Allen charge. United States v. Fioravanti, 412 F.2d 407 (1969). The Seventh Circuit has advised that district judges should be “sparing and cautious” in using the Allen-type charges, United States v. Knaack, 409 F.2d 418 (7th Cir.), cert. denied, 396 U.S. 831, 90 S.Ct. 87, 24 L.Ed.2d 83, and has recommended use of the A.B.A. approved charge, note 6, infra, where one is necessary. United States v. Brown, 411 F.2d 930 (7th Cir. 1969). The Tenth Circuit has suggested that if an Allen charge is to be given, it must be given in the main charge. United States v. Wynn, 415 F.2d 135 (10th Cir. 1969). Arizona and Montana have banned the Allen charge entirely. State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959); State v. Randall, 137 Mont. 543, 353 P.2d 1054 (1960).
. United States v. Wynn, supra, note 3; United States v. Fioravanti, supra, note 3; United States v. Knaack, supra, note 3; Thaggard v. United States, 354 F.2d 735 (5th Cir. 1965) (Coleman, J., concurring), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966); Jenkins v. United States, 117 U.S.App.D.C. 346, 330 F.2d 220 (1964) (Wright, J., dissenting), rev., 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); Walker v. United States, 342 F.2d 22 (5th Cir.) (Brown, J., dissenting in part), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97 (1965) ; Andrews v. United States, 309 F.2d 127 (5th Cir. 1962) (Wisdom, J., dissenting), cert. denied, 372 *1346U.S. 946, 83 S.Ct. 939, 9 L.Ed.2d 970 (1963); Green v. United States, 309 F.2d 852 (5th Cir. 1962); United States v. Smith, 303 F.2d 341 (4th Cir. 1962); Huffman v. United States, 297 F.2d 754 (5th Cir.), cert. denied, 370 U.S. 955, 82 S.Ct. 1605, 8 L.Ed.2d 820 (1962); State v. Thomas, supra, note 3; State v. Randall, supra, note 3.
. See note 5 on page 1346.
*13465. See, e. g., A.B.A. Project on Minimum Standards for Criminal Justice, Trial by Jury § 5.4 (Approved Draft, 1968); Supplement to Report of the Committee on the Operation of the Jury System, Judicial Conference of the United States 2 (1969); Clark, Progress of Project Effective Justice — A Report of the Joint Committee, 47 J.Am.Jud.Soc’y 88, 90 (1963); Comment, On Instructing Deadlocked Juries, 78 Yale L.J. 100, 103 (1968) ; Comment, Deadlocked Juries and Dynamite: A Critical Look at the “Allen Charge," 31 U.Chi.L.Rev. 386 (1964); Note, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge, 53 Va.L.Rev. 123 (1967).
. The two organizations have recommended virtually identical instructions. The version approved by the Judicial Conference reads:
5.4 Length of deliberations; deadlocked jury.
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(I) that in order to return a verdict, each juror must agree thereto;
(II) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(III) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(IV) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous;
(V) that each juror who finds himself in the minority shall reconsider his views in the light of the opinions of the majority, and each juror who finds himself in the majority shall give equal consideration to the views of the minority.
(VI) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
Subparagraph (V) was not included in the American Bar Association recommended charge.
. It is your duty, as jurors, to consult with one another, and to deliberate *1347with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but to do so only after an impartial consideration of the evidence in the ease with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
In the prevailing opinion the argument is advanced that by allowing the delivery of this instruction Fioravanti substantially returns to the district judges the discretion to deliver a charge which it had just purportedly outlawed. I do not so read that case. In appropriate circumstances the delivery of the recommended well-balanced instruction would not have the harsh consequences implicit in an Allen-type charge. This recommended charge clearly apprises the entire panel that it should reevaluate its position with a view to reaching a decision. It is in no way aimed at the minority and defuses the dynamite of supplemental Allen-type charges.
. Courts have held that Allen-type charges are coercive: if the trial judge failed to state that it was also the majority’s duty to listen to the minority, United States v. Pope, 415 F.2d 685 (8th Cir. 1969); United States v. Smith, 353 F.2d 166 (4th Cir. 1965); Mangan v. Broderick and Bascom Rope Company, 351 F.2d 24 (7th Cir. 1965), cert. denied, 383 U.S. 926, 86 S.Ct. 930, 15 L.Ed.2d 846 (1966); Green v. United States, 309 F.2d 852 (5th Cir. 1962); United States v. Rogers, 289 F.2d 433 (4th Cir. 1961); or charged that the jury had to agree, Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); United States v. Harris, 391 F.2d 348 (6th Cir. 1968); or said that he would be lenient if the jury brought in a conviction, Demetree v. United States, 207 F.2d 892 (5th Cir. 1953); or threatened to keep the jury deliberating for a specified or indefinite time unless agreement was reached, Mead v. City of Richland Center, 237 Wisc. 537, 297 N.W. 419 (1941).
. Other circumstances which courts have considered in deciding whether an Allen-type charge was coercive are the length of time the jury deliberated after the charge was given, 53 Am.Jur., Trial § 952 and cases cited therein; whether or not counsel objected to the charge, Sanders v. United States, 415 F.2d 621 (5th Cir. 1969); Huffman v. United States, 297 F.2d 754 (5th Cir.), cert. denied, 370 U.S. 955, 82 S.Ct. 1605, 8 L.Ed.2d 820 (1962); Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. 1958), cert. denied, 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535, reh. denied, 361 U.S. 857, 80 S.Ct. 47, 4 L.Ed.2d 96 (1959) ; and whether the judge made inquiry as to the division of the jury, Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926); Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905); Cook v. Unit*1348ed States, 254 F.2d 871 (5th Cir. 1958); United States v. Samuel Dunkel & Co., 173 F.2d 506, appeal after remand, 184 F.2d 894 (2nd Cir. 1949), cert. denied, 340 U.S. 930, 71 S.Ct. 491, 95 L.Ed. 671 (1951).
In Rhodes v. United States, 282 F.2d 59 (4th Cir.), cert. denied, 364 U.S. 912, 81 S.Ct. 275, 5 L.Ed.2d 226 (1960), and Orthopedic Equipment Co. v. Eutsler, 276 F.2d 455 (4th Cir. 1960), which upheld Allen-type charges, there were no special circumstances such as those present in this case.
. Also see, Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905).
. The Allen charge was not the subject of specific discussion in Brasfield; thus the significance of its presence in that case is difficult to measure. There is a difference of opinion over whether inquiry alone in Brasfield, without the charge, would have led to the same result. See generally, Comment, On Instructing Deadlocked Juries, 78 Yale L.J. 100, 105, n. 25, 131, 132 (1968).
. Accord, Sanders v. United States, 415 F.2d 621 (5th Cir. 1969); United States v. Meyers, 410 F.2d 693 (2nd Cir. 1969); United States v. Rao, 394 F.2d 354 (2nd Cir. 1968).
. Accord, Williams v. United States, 119 U.S.App.D.C. 190, 338 F.2d 530 (1964).
. Justice Udall, in his dissenting opinion in State v. Voeckell, 69 Ariz. 145, 210 P.2d 972, 980 (1949), established a similar syllogism:
The majority think that he is guilty; the Court thinks I ought to agree with the majority so the Court must think he is guilty. While the Court did tell me not to surrender my conscientious convictions, he told me to doubt seriously the correctness of my own judgment. The Court was talking directly to me, since I am the one who is keeping everyone from going home. So I will just have to change my vote.
Justice Udall’s dissent was later vindicated when Arizona outlawed the Allen charge. See State v. Thomas, supra, note 2.
. In a somewhat different situation, Mr. Justice Frankfurter stated in Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946),
An experienced trial judge should have realized that such a long wrangle in the jury room as occurred in this case wouid 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.
In the instant case the judge knew that two jurors expressed a desire to go home but nevertheless instructed the jury that they “may be as leisurely in [their] deliberations as the occasion requires; and you shall take all the time which you feel is necessary.” The jury had been sequestered for 18 days and 17 nights. It began its deliberations the Friday before Labor Day weekend and the supplemental charge was given fifteen hours later. This could only have added to the pressure on the two minority voters.