633 Opinion of the Court. to consider whether she did steal them, on the question of intent. Did she steal them? Who did if she didn't? You are to decide that." (Italics added.) Counsel excepted to the charge on the ground that it was not "the jury's duty to find out who did steal the stamps." No modification of the charge was made. We assume that the charge might not be misleading or confusing to lawyers. But the probabilities of confusion to a jury are so likely (cf. Shepard v. United States, 290 U. S. 96, 104) that we conclude that the charge was prejudicially erroneous. Instructions to acquit, if there was reasonable doubt as to petitioner's guilt, were given in other parts of the charge. Those were general instructions. They would be adequate, standing alone. But on the crucial issue of the trial-whether petitioner or one of four other persons stole the coupons from the bank-no such qualification was made; and the question was so put as to suggest a different standard of guilt. As stated by Judge Frank in his dissenting opinion below: "Literally interpreted, the judge's charge told them that this was not sufficient to justify acquittal, for it was their 'duty' (a) to decide that appellant committed the theft unless (b) they decided that some other specific person did. So interpreted, this charge erred by putting on appellant the burden of proving her innocence by proving the identity of some other person as the thief." 152 F. 2d, p. 348. Or to put the matter another way, the instruction may be read as telling the jurors that, if petitioner by her testimony had not convinced them that someone else had stolen the ration coupons, she must have done so. So read, the instruction sounds more like comment of a zealous prosecutor rather than an instruction by a judge who has special responsibilities for assuring fair trials of those accused of crime. See Quercia v. United States, 289 U. S. 466, 469. Opinion of the Court. 3 328 U.S. The "harmless error" statute (Judicial Code § 269, 28 U. S. C. § 391) means that a criminal appeal should not be turned into a quest for error. It does not mean that portions of the charge are to be read in isolation to the full charge and magnified out of all proportion to their likely importance at the trial. Boyd v. United States, 271 U. S. 104, 107. Yet as stated in McCandless v. United States, 298 U. S. 342, 347-348, "an erroneous ruling which relates to the substantial rights of a party is ground for reversal unless it affirmatively appears from the whole record that it was not prejudicial." It seems plain that the inflection or tone of voice used in giving the challenged instruction could make it highly damaging. And in any event the probabilities of confusion in the minds of the jurors seem so great, and the charge was so important to the vital issue in the case, that we conclude that prejudicial error was committed. We certainly cannot say from a review of the whole record that lack of prejudice affirmatively appears. While there was sufficient evidence for the jury, the case against petitioner was not open and shut. Since the scales were quite evenly balanced, we feel that the jury might have been influenced by the erroneous charge. Hence we cannot say it was not prejudicial and hence treat it as a minor aberration of trivial consequence. Nor is it enough for us to conclude that guilt may be deduced from the whole record. "On the hearing of any appeal, certiorari, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." The Federal Rules of Criminal Procedure, effective March 21, 1946, provide that "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Rule 52 (a). This is merely a restatement of existing law and effects no change in the "harmless error" rule. Such a course would lead to serious intrusions on the historic functions of the jury under our system of government. See Bollenbach v. United States, 326 U. S. 607. Reversed. MR. JUSTICE JACKSON took no part in the consideration or decision of this case. MR. JUSTICE BLACK, dissenting. The jury found this defendant guilty beyond a reasonable doubt after the trial judge had charged that: “A defendant is not required to establish his innocence but the Government must establish guilt beyond a reasonable doubt. If the facts and circumstances surrounding the case are as consistent with innocence as with guilt, he is not guilty." Six other times the judge explicitly charged the jury to the same effect: The defendant's innocence is presumed; she need not prove it; the burden is on the Government to prove her guilt beyond a reasonable doubt. Yet the Court now reverses on the ground that the jury might conceivably have taken three sentences in the trial judge's charge to mean that the defendant must prove innocence, which conceivably might have led the jury to believe that the court might have intended to withdraw his seven explicit instructions to the contrary. The three sentences were: "Did she steal them? Who did if she didn't? You are to decide that." Instructions such as these as to who stole the coupons were necessary because of the petitioner's defense that somebody else had taken them. The trial judge was obviously telling the jury not to ignore the petitioner's defense. No reference was made to burden of proof and no ordinary juror, unskilled in legal dialectics, would have suspected the latent ambiguity which the Court has discovered. Of course, hypercritical scrutiny of each word and sentence in every charge when considered alone would always reveal dual meanings. The sentences here in question, like the sentences in every charge, should be given a common sense interpretation in their relationship to all instructions and the issues raised. When so considered, it is impossible for me to believe that the jury was confused as to burden of proof. Seven correct explicit instructions should not be considered neutralized by legalistic inferences established by purely formal analysis. MR. JUSTICE REED and MR. Justice Burton join in this dissent. PINKERTON ET AL. v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 719. Argued May 1, 1946.-Decided June 10, 1946. 1. Where an indictment charges both a conspiracy to engage in a course of criminal conduct and a series of substantive offenses committed pursuant to the conspiracy, the substantive offenses are not merged into the conspiracy; and, upon conviction, the accused may be punished both for the conspiracy and for the substantive offenses. Braverman v. United States, 317 U. S. 49, distinguished. Pp. 642, 643. 2. The plea of double jeopardy is no defense to a conviction for both offenses. P. 643. 3. It is not material that overt acts charged in the conspiracy count are also charged and proved as substantive offenses. P. 644. 4. A party to a continuing conspiracy may be responsible for substantive offenses committed by a co-conspirator in furtherance of the conspiracy, even though he does not participate in the substantive offenses or have any knowledge of them. United States v. Sall, 116 F. 2d 745, overruled. Pp. 645–648. 151 F.2d 499, affirmed. 640 Opinion of the Court. Petitioners were convicted of a conspiracy to violate the Internal Revenue Code and of several substantive violations of the Code and were sentenced both for the conspiracy and for the substantive offenses. The Circuit Court of Appeals affirmed. 151 F. 2d 499. This Court granted certiorari. 327 U. S. 772. Affirmed, p. 648. John S. Tucker, Jr. argued the cause for petitioners. With him on the brief was Thomas E. Skinner. W. Marvin Smith argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Leon Ulman. MR. JUSTICE DOUGLAS delivered the opinion of the Court. Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.1 151 F.2d 1 The court held that two of the counts under which Walter was convicted and one of the counts under which Daniel was convicted were barred by the statute of limitations and that as to them the |