¶1(dissenting in part). I do not concur in the conclusion that it was not prejudicial error to deny the timely request made on behalf of plaintiffs in error to submit to the jury such forms for verdicts as would have allowed the jury to find Drinka or Pollack guilty of a different degree of homicide than Peters. As is said in the opinion filed for the court:
“Upon the law and the evidence the only issue left for determination by the jury was the degree of homicide.”
¶2*223That opinion recognizes that—
“It would have been better practice perhaps had the court included, instead of a verdict containing the names of the three defendants, a verdict of acquittal as to each defendant.”
¶3However, that does not remedy the improper denial of the defendants’ right to have the jury determine separately as to each defendant the degree of homicide of which he was' guilty. Even though the evidence admitted of finding that each defendant was guilty of murder in the first degree, nevertheless, there were such differences in the mental capacity and attitude of each of the defendants, and the manner in which each participated in the events which culminated in the unanticipated shooting of Zingler by Peters, that it was within the jury’s province to find Drinka or Pollack guilty of murder in some other degree than Peters. Under the circumstances, the trial court was in error in concluding that “they must stand or fall together,” and that, therefore, the jury had to find all three either guilty in the same degree, or all entitled to acquittal. As was said in State v. Harvey, 130 Iowa, 394, 106 N. W. 938:
“It is too well established to justify argument that upon the trial of two defendants jointly charged with crime (except where from the very nature of the offense charged it must have been jointly committed, if at all), it is not within the province of the court to say to the jury that both must be convicted or both acquitted. . . . It is very possible that the circumstances of a given case may be such that a verdict of guilty as to one of two defendants and of not guilty as to the other would be grossly unreasonable, and yet, if the case be not one for a directed verdict of acquittal as to one or both of the accused, the right of each to have the question of his individual guilt or innocence passed upon by the jury cannot rightfully be denied. If the court had elsewhere in its charge stated to the jury the rule of law to which we have adverted and explained its application to the case on trial, we could perhaps safely say that the error in the paragraph under consideration was without prejudice; but no such in*224struction was given, except as the same might be inferred from the submission of blank forms upon which a verdict of guilty as to one, and not guilty as to the other defendant, could be returned. But the jury should not be left to infer the proper rule in a matter of such prime importance.”
¶4See also Miller v. State, 139 Wis. 57, 119 N. W. 850; State v. Vaughan, 200 Mo. 1, 98 S. W. 2; McKenzie v. State, 11 Okla. Crim. 554, 149 Pac. 911; and State v. Lambert, 318 Mo. 705, 300 S. W. 707.
¶5It is certainly a serious question whether the prejudicial character of this type of error may properly be gauged by a determination in this court of the weight of the evidence. In the case of error in admitting evidence, it may at times be concluded — especially in view of the statute requiring that prejudice affirmatively appear — that the weight of the evidence is such that the error could not be said to have affected the result. On the other hand, if a trial court had directed a verdict, it would be improper to. disregard the error merely by reason of the fact that the evidence of guilt is overwhelming. In the case at bar the error is of the. latter sort. Each defendant was entitled to have his individual guilt separately judged by the jury, and his rights were not to be diminished by the trial of the defendants together. The denial of that right was prejudicial error as a matter of law.
¶6I am authorized to add that Mr. Justice Wickhem concurs in this dissent.
¶7A motion for a rehearing was denied, without costs, on May 1, 1934.
¶8The following memorandum was filed May 8, 1934: