(concurring in part and dissenting in part).
I concur in the affirmance of the defendant’s conviction; however, since the opinion written by Judge Sprecher and approved by the majority of my brethren does establish new law in the Seventh Circuit,1 I find myself free to record my disagreement with some of that new law. I do so with some reluctance because of my respect for the good judgment of my brothers and because my opinion with regard to the LaBuy-modified Allen charge apparently runs counter to a considerable body of scholarly thought elsewhere.
In all candor, I do not find myself disturbed by the charge given by Judge Austin in the trial below. Apparently *884the majority of this court is really not too disturbed either because the charge was held not to violate the defendant’s constitutional rights and not to be prejudicial. Nevertheless, apparently writing section one of a manual of instructions, the court states that deviation from the precise language of that instruction in the deadlocked jury situation is reversible error. I experience conceptual difficulty, even under our supervisory power, in establishing a standard from which no deviation may occur when we do so in the very case in which we hold that a deviation was neither constitutionally impermissible nor otherwise prejudicial.
My basic feeling is that the matter of writing instructions should remain in the hands of the trial judges. They are the ones at the battle site who are best in the position to judge which instructions are appropriate to the factual issues. Likewise they are best in the position to determine the nature, necessity, and verbiage of instructions to be given in connection with the functional aspects of jury deliberation, including those that may be necessary when it reasonably appears that a jury has reached the status of being deadlocked. If in any instruction the court misstates the law and the effect is prejudicial then, of course, a reversal would ordinarily follow. By prescribing the exact language in which a trial judge may instruct in the deadlocked situation we are, it seems to me, substantially circumscribing the discretionary flexibility needed by the trial judge for effective trial administration. It is one thing to find no error in an instruction which has been given in a trial, thereby putting our tacit approval on it, and an entirely different matter to engage in a priori processes of word fixation.
In considering the desirability in our trial procedures of the giving of an instruction such as the one given by Judge Austin, we should look at it in the context of the occasion in which it is utilized. While we probably should not say as an absolute, necessitas est lex tempor-is et loci, because our system of justice does not mandatorily require that every jury should render a verdict, nevertheless it seems to me that it is desirable that a disposition should be reached if it can be without compromise of honest conviction or violence to individual judgment. I find nothing wrong in Judge Austin’s admonition that “[i]t is your duty to decide the case if you can conscientiously do so.” Indeed, the ABA recommendations do not deny the desirability of giving an additional instruction to the deadlocked jury with regard to their duty to deliberate with a view to reaching an agreement.
In the context of the situation of the deadlocked jury it appears tó me that three basic situations might be involved. The first of these is where the jury is evenly or approximately evenly divided. Here, if the deliberations have been of some substantial duration it appears to me that there is not sufficient “dynamite” in the challenged charge to cause the situation to change. As a matter of fact, the challenged charge is primarily concerned with the situation where there is a small minority holding out against a majority. The remaining two basic situations are found in the latter posture. While there may be subcategories, and at the risk of oversimplification, the minority jurors are either reasonable or unreasonable. If the obdurateness of the minority is of the latter type, whether flowing from corruption or from what some trial lawyers inelegantly refer to as pigheadedness, it seems unlikely that the challenged charge will have much blasting effect. If it did, I cannot say that this would necessarily be a bad result, at least as long as reason is to play some part in jury determinations.
Ultimately then we are concerned with those jurors who are reasonable but are conscientiously unconvinced that the majority position is correct. We would all agree, I think, that no juror, but particularly not the type of juror just described, should feel that he is being' pressured by the trial judge to agree to a verdict just for the sake of closing out *885the case. I do not find such pressure in the challenged charge. It is axiomatic that no one instruction encompasses all of the law in a case. Likewise, each paragraph of a particular instruction should be considered as a part of the whole. Thus, even though the jurors in the challenged instruction are reminded that absolute certainty cannot be expected (which is probably a truism) and that the case will be left open and undecided if a verdict is not reached (also true), on balance the jurors are sufficiently instructed that they do not have to surrender their honest convictions merely for the purpose of returning a verdict.
Looking at the overall impact of the challenged instruction, it appears to me that it advises jurors that as reasonable persons they should take another look at whether their position is reasonable and correct. It also is to be noted that this admonition is directed at the majority as well as the minority.
If we become embroiled in semantical niceties in looking at instructions, niceties which have arguably little impact upon the lay people composing juries,2 *****8 then I would tend to think that the ABA based instruction (which has been now laid down as the only instruction which can be given to a deadlocked jury) could be interpreted by the average juror as being a “bugle call” for a hung jury. That is no more to be desired than is an instruction which improperly pressures a unanimous decision.
Further, I cannot agree with the majority decision in two other respects. The requirement that the deadlocked instruction can only be given when it is first given as a part of the regular charge exceeds the ABA standard “may give or repeat . . . . ” Secondly, and this follows from what I have already said, I would in any event include in the prescribed instruction the words which were recommended, by the Committee on the Operation of the Jury System of the Judicial Conference of the United States (footnote 7 of the majority opinion):
“(v) that each juror who finds himself in the minority should reconsider his views in the light of the opinions of the majority, and each juror who finds himself in the majority should give equal consideration to the views of the minority.”
The committee’s comments are illuminating :
“This additional paragraph makes it perfectly clear that instructions to take the views of other jurors into account are not directed solely to minority jurors and also reflects the viewpoint of several leading jurists.”
I concur in the suggestion of the majority opinion that consideration be given to letting the jury have the instructions during its deliberation.
. Although obiter dieta, in the context of the case being appealed, law is nevertheless declared, preumably under the supervisory power of this court.
. Judge Arterburn, now Chief Judge, of the Indiana Supreme Court put the matter aptly in Hendrix v. Harbelis, 248 Ind. 619, 230 N.E.2d 315 (1967), as follows:
“Instructing a jury is a most difficult and complex process. It is generally conceded that there has been an overemphasis placed upon the wording and refined meaning of instructions which far exceed their actual effect upon the jury. When an instruction has to be read and reread by a legally trained mind to catch a slight variation or error in its meaning, it is difficult to believe that a jury of laymen could have been misled. Words are mere signs or symbols of meaning and thought, which are never exact. We strive with inexact tools to work out refinements and precise lines in statements of thoughts and ideas, but are never able to reach exact perfection. In the writing of instructions, we are eternally confronted with attempts and failures at exactitude, and we must keep this human frailty in mind when we examine the language of instructions.” 230 N.E.2d at 319.