(concurring in part and dissenting in part).
I would affirm the convictions.
I agree with the dissent of Justice Con-nor respecting the impeachment testimony of the witness Perry.
I would treat as harmless error the language of the “Allen Charge” of the trial court, although I am in accord with the majority respecting future employment of a supplemental instruction when a deadlock is announced to the court. The standards recommended by the American Bar Association project on minimum standards of criminal justice should in future cases be adhered to.
However, the charge given here by the trial court, while arguably imperative in its command to continue deliberation until a verdict is reached, does not, in my view, deprive the jury of its free will in either reaching a verdict of conviction or acquittal, or in subsequently determining with finality that they were hopelessly unable to agree. The direction to continue deliberations until a unanimous verdict is reached, if considered a “dynamite charge”, is, in my view, defused by the language with which the instruction commences whereby the jurors are reminded that the verdict must be the result of the convictions of each juror and not a mere acquiescence in the conclusions of fellow jurors.
The judge did not inquire whether the majority stood for conviction or acquittal. In this context, the portion of the instruction suggesting that the minority re-examine their own views was not coercive, leaving properly to the jury the ultimate decision in the case; such an instruction is not inherently coercive, if the court is not informed of how the jury stands.
People v. Baumgartner, 166 Cal.App.2d 103, 332 P.2d 366, 370 (1958). Baumgart-ner recites the rule inherent in review of cases of this character: “an appellate court ought to direct reversal of a conviction when unable to say whether appellant would or would not have been convicted but for the trial court’s errors.” The entirety of the charge must be considered to determine whether, on appeal, this help should be entertained, even where the trial court may have erroneously conveyed a suggestion that the jury would be confined until a verdict was reached. Whittle v. State, 205 Ala. 638, 639, 89 So. 43, 48 (1921); Mallory v. State, 141 Ark. 496, 217 S.W. 482 (1920).
Notwithstanding the peremptory character attributed to the Allen charge as herein given, the jury took yet another three and one half to four hours of deliberation before reaching its verdict. The evidence against defendants was strong. It can hardly be said that honest reasonable doubts which some members of the jury may have entertained were readily yielded to a desire to obtain a discharge from service.