(dissenting).
The petitioner, in his petition for rehearing, points out that our original opinion seems to withhold approval of acts complained of by appellant, when police interviewed defendant’s witnesses; and that such opinion indicates the “best administration of justice” requires different procedures in the matter of steps taken by the state to interview witnesses of the defendant.
Petitioner also points out that our original opinion states, with respect to the so-called Allen charge which defendant complains of, that “we do not commend or even approve the giving of this type of instruction after the jury has been engaged in deliberation.”
We, of course, need to be careful about saying procedures are wrong but not prejudicial unless it is clear why appellant has not been prejudiced. Also, there may be a seeming contradiction to say we do not “approve” the giving of an instruction like the Allen charge after the jury has engaged in deliberation, when we in effect do “approve” such procedure by affirming the verdict of guilty.
*377Justice McEwan and I suggested in our concurrence with the original opinion that trial judges ought to be directed that henceforth, if a charge is given to a deadlocked jury, it should be consistent with the standards suggested by the American Bar Association, which standards are set forth in United States v. Brown, 7 Cir., 411 F.2d 930, 933-934.
Petitioner argues that the effect of the court’s main opinion and the concurring opinion is to say, at least impliedly, that future defendants are to be protected against witness harassment by peace officers, and protected against the giving of an Allen type of instruction after the jury has been engaged in deliberation; however, that the defendant in this case is not to have such protection.
It needs to be made clear, I am not contending at this point that our decision should be altered. I am of the opinion, however, that petitioner has shown enough to justify a rehearing. Accordingly, I would grant the rehearing.