PEOPLE
v.
TURNER HENRY
Docket No. 10835.
Michigan Court of Appeals.
Decided November 23, 1971.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, *161 Chief, Appellate Department, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
Before: V.J. BRENNAN, P.J., and J.H. GILLIS and O'HARA,[*] JJ.
Leave to appeal denied, 387 Mich 798.
O'HARA, J.
This is an appeal from a jury conviction of the offense of unarmed robbery, MCLA § 759.530 (Stat Ann 1954 Rev § 28.798). The appeal was taken of right.
As his sole assignment of error, defendant takes exception to the charge that:
"The defendant in this case had a right to go up on the stand and testify in his own behalf if he chose to do so. The law, however, expressly provides that no presumption adverse to him is to arise from that if he does not place himself upon the witness stand. So, in this case the mere fact that Turner Henry has not availed himself of the privilege that the law gives him should not be permitted by you to prejudice him in any way. It should not be considered evidence either. The failure of the defendant to testify is not even a circumstance against him and no presumption of guilt can be indulged in by the jury on account of such failure on his part." (Emphasis supplied.)
In particular, defendant claims that the negative phrasing of the charge would necessarily prejudice the jury against him. This, he argues, is proscribed by Griffin v. California (1965), 380 US 609 (85 S Ct 1229; 14 L Ed 2d, 106).
The learned trial judge's use of the word "failure" to take the stand may be unfortunate, but when read *162 in conjunction with the balance of the charge cannot be characterized as implicitly adverse.
Even though this instruction was judicially approved in People v. Provost (1906), 144 Mich 17, 18, and has found its way into the widely used and highly respected Gillespie,[1] we think that a word denoting free choice, such as, but not limited to "election" or "choice" might better be substituted for "failure" in future instructions.
There was no reversible error.
Affirmed.
All concurred.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 906, Form No 403, pp 1282, 1283.