dissenting in part.
Although I agree with the court’s disposition of appellant’s equal protection contentions, I cannot join in the court’s conclusion that none “of Larson’s substantial rights [was] prejudiced by the assumed duplicity arising from the fact that, in addition to the evidence of the shooting, the prosecutor, without objection from Larson, spoke briefly about the pointing of a gun as also constituting an assault.” My reasons are as follows.
Despite the fact that the indictment specifically alleged that Larson had committed an assault with a dangerous weapon “by firing a shot toward Doris Debrix Darnell and William Franklin Barnes,” the superior court in its instructions to the jury omitted any reference to this portion of the indictment. At one point in its instructions the court used the conjunctive “and” in referring to the assault on William Barnes and Doris Darnell. Subsequently the superior court employed the disjunctive “or” in alluding to the alleged assault with a dangerous weapon upon either William Barnes or Doris Darnell. This divergence between the instructions and the indictment made possible a non-unanimous verdict because some jurors may have concluded that each element of the assault with a dangerous weapon had been proven with respect to Darnell while others concluded that each *789element had been proven only with respect to Barnes. In short the court’s instructions permitted possible confusion as to the precise conduct upon which a conviction of assault with a dangerous weapon could be based. In this regard I think it of particular significance that the prosecutor, in the course of his argument to the jury, stated in part:
He didn’t just yell out or he didn’t let it go with the one pass down the street of pointing the gun. That would have been an assault right there, and is an assault. I mean you can find him guilty of that as — when he drove by the first time, if you believe the gun was loaded at that time beyond a reasonable doubt.
Furthermore, I think the previously referred to internally inconsistent use by the trial court in its instructions of the conjunctive and disjunctive increased the potential for a non-unanimous verdict in the ease at bar.
Given the foregoing, I conclude that Larson’s position has merit. More particularly I agree with his contention that in view of the prosecutor’s argument and the fact that the superior court’s charge to the jury failed to specify the shooting incident as the factual basis for the crime charged, the jury was presented with two separate incidents upon which it could have relied in determining Larson’s guilt or innocence of the crime of assault with a dangerous weapon. As in Drahosh v. State, 442 P.2d 44, 49 (Alaska 1968), there exists the possibility of lack of unanimity on the jury’s part. I would thus reverse and remand for a new trial under proper jury instructions.1
. Implicit in the foregoing is my conclusion that despite counsel for Larson’s failure to object to either of the subject instructions or the portion of the prosecutor’s final argument in question here, the combination of the court’s defective instructions and the prosecutor’s argument constituted plain error and therefore is reviewable by this court. Further, I deem these defects in Larson’s trial so egregious that Larson’s substantial rights have been affected. Love v. State, 457 P.2d 622, 632 (Alaska 1969), Criminal Rule 47(b).