¶1 dissenting. Pretermitting the question of error in the charge, I am of the opinion that if there was error it was not prejudicial to either of these defendants. On the contrary it was, if anything, more favorable to them than it would have been if the trial justice had specifically charged the jury that they could find one of them guilty and the other not guilty.
¶2 It would have been clearly prejudicial if the jury had been told that if they found one guilty they would be bound to-find the other guilty. But they were charged precisely the opposite. In substance they were told that they would be bound to return a verdict of not guilty as to both unless they could find each defendant guilty. In other words, the failure of the state to prove one guilty, although it had proved the other guilty, must nevertheless result in the acquittal of both.
¶3 Whatever the error may be in such a charge it is difficult to see how it could have prejudiced either of these defendants. It would seem that the prejudice was against the state and not the defendants. Under the charge as given the state ran a great hazard. No matter how strong its case might be against one, if its case against the other was not sufficiently strong, the guilty one would escape the vengeance of the law.
¶4 But could it be that, under the charge, the jury might be influenced to prevent such a miscarriage of justice and return a verdict of guilty as to- both defendants even though they felt that one was not guilty? Not unless they flagrantly disregarded the specific instructions which they had received in other portions of the charge and were determined to do injustice to an innocent defendant in order that the guilty one might not escape. Did the members of this jury thus violate their oaths? We are bound to assume that they did not. We must not indulge in any surmise or speculation that this might have been their approach to the discharge of their sworn duty.
¶5 To my mind it is unthinkable that this jury failed to obey the specific instructions which they received, not once but several times during the course of the charge, to the effect that it was the duty of the state to prove each defendant guilty beyond a reasonable doubt and that unless both were proved guilty they should acquit both. There is nothing in the evidence bearing on the probable guilt of each of these defendants that would lead me to think otherwise. Furthermore, a careful reading of the charge has convinced me that every right of the defendants was clearly and definitely stated to the jury, and that they were as clearly told how to apply those rights to the evidence so that the defendants would receive the full benefit of their protection. As it turned out they may have received more than they were entitled to, but certainly not less.
¶6 I think that the verdict should stand.