(dissenting). From the third conclusion, reached by Justice Bird, I dissent. Before defendant offered himself as a witness in the trial, counsel for the people, in cross-examination of a witness for the defendant, over objection of counsel and without justification appearing of record, were permitted to show that defendant had declined to testify at a coroner’s inquest concerning the cause of death of Brown. Suggestion was also made that a certain other witness had not claimed such privilege. A John Doe or grand jury proceeding, so-called, was held under authority of chapter 267, 3 Comp. Laws 1915. The justice of the peace who sat in such proceeding was called by defendant and gave the dates of sittings and the names of persons summoned to testify before him. On cross-examination, over objection, the prosecution was permitted to' show that defendant declined to testify at such proceeding, and to show, seemingly without objection, that defendant did not testify at the preliminary examination. Defendant’s counsel moved to strike such testimony. The motion was denied.' Later when defendant took the stand, counsel for the people were permitted, over objection, to interrogate him respecting his failure to testify in preliminary proceedings.
The interrogation of witnesses, comment, and reference, respecting the failure of the accused to testify at the inquest, at the John Doe proceeding, at the examination, constitute a positive prejudicial invasion of a substantial right of the accused under the law, *247See statute quoted by Justice Bied and section 16, article 2, State Constitution. The effect of permitting such practice before defendant is offered as a witness in his own behalf, is to compel him to take the stand, or suffer the consequences of the inferences, suspicions and prejudices engendered by the aspersions, comments and references upon his failure to testify in the preliminary proceedings, tantamount to a denial of the right.
There can be no quarrel with the rule announced by Justice Bied and in the cases cited by him that where a defendant takes the stand and testifies in his own behalf he is then subject to the same cross-examination as any other witness. But that rule may not be extended to cover inquiry on cross-examination as to his failure to testify at a former hearing, trial, or proceeding in the cause. In this regard the cross-examination of defendant was improper.
It is said in 2 R. C. L. p. 432:
“The. constitutional privilege of the accused in a criminal trial, not to have his failure to testify commented on by the prosecuting attorney, is waived where he takes the witness stand voluntarily for the purpose of giving testimony in his own behalf. By electing to testify, he places himself in the attitude of any ordinary witness, irrespective of any interest in .the cause. As a party, his refusal to answer a particular question, on the ground that such answer would tend to criminate him, could afford him no exemption from the inferences which would naturally attach to any other witness, not a party, in such circumstances. His object in taking the witness stand is to show himself innocent of the offense by testifying. Putting himself in such a position, and declining to testify except as to such matters as would tend to exculpate him, refusing to answer the direct, competent and material inquiry raised by the case, is a matter of significance which it is the right, if not the duty, of a prosecuting attorney and of the court to bring prominently to the attention of the jury. *248The waiver, however, extends only to the particular trial, while the inhibition against such comments extends to all trials. A prosecuting attorney, therefore, cannot properly comment on the failure of the defendant to take the witness stand in a former trial though he testifies at the trial during which the comments were made. The constitutional privilege is not waived by counsel for the defendant stating the reasons why the defendant did not testify on the trial. The absolute exemption, secured a defendant by the constitution and laws, from being compelled to testify, and from having his omission to do so used in'any way to his detriment, cannot be affected by superfluous or irregular suggestions of counsel in the heat of argument. That exemption can only be waived by the defendant’s own election to avail himself of the statute, and to go upon the stand as a witness.”
The following from Templeton v. People, 27 Mich. 501, in which, at the trial, examination of the original record discloses, defendant testified in his own behalf:
“On the trial the prosecution was allowed, under objection, to give in evidence the return of the examining magistrate, to show that upon the examination he (defendant) gave no evidence, and the court instructed the jury that they were at liberty to consider this as entitled to more or less weight, as it should seem to them proper and just, as evidence bearing on the prisoner’s guilt.
“We think in this the court erred. "While we do not doubt but that the fact that a person charged with crime makes no defense on the preliminary examination may be necessary and proper evidence frequently to support or establish some point or proposition, we are clearly of opinion that it cannot be introduced, as in this instance, on the trial of the charge on which he was examined, to prove his guilt. The statute expressly gives the prisoner an election to make or not make defense on his examination before the magistrate, and any rule which would make the exercise of such right, one way or the other, a ground of presumption against his innocence on the trial, would be nearly, if not quite, tantamount to a denial of the right altogether. The law wisely leaves *249him to his free choice to put in evidence or not, before the magistrate, and this privilege cannot be hampered by making its exercise one way a ground of inference on the trial, of his criminality. The right to refrain from defensive action before the magistrate is as clearly given as'the right to take the contrary course, and it would be reflecting upon the consistency and justice of the law to say that while it secures this as an absolute right of the prisoner in the proceedings, it at the same time turns it into evidence against him.”
See, also, Sullivan, v. People, 31 Mich. 1; People v. Hillhouse, 80 Mich. 580; People v. Salisbury, 218 Mich. 529.
We quote from 16 C. J. p. 901:
_ “In most jurisdictions,' however, the statutes provide that accused’s failure to testify shall not create any presumption against him, and generally forbid the prosecution from commenting upon such failure. Under such statutes it is improper and erroneous for the prosecuting attorney to comment upon, or to make any reference in his argument to, accused’s neglect or failure to take the stand and testify, either directly or so pertinently as to direct the jury’s attention to such fact, and it is the duty of the court to see that such impropriety is not committed. A statute forbidding such comment applies to a failure to testify at the preliminary trial, upon an application for bail, at a hearing on habeas corpus, or at a previous trial of the case. * * * It has been held to be erroneous to make comments upon accused’s failure to testify in advance of the time when he may be called as a witness.”
It was held in Smithson v. State, 127 Tenn. 357 (155 S. W. 133), quoting from syllabus:
“The statutory provision * * * that the failure of the accused to testify in his own behalf shall not create any presumption against him, applies to his former trial, as well as to his pending trial, so as to make it improper for the State’s counsel to comment on the failure of the accused to testify in his former trial or trials.”
*250And in Swilley v. State, 73, Tex. Crim. Rep. 619 (166 S. W. 733):
“Again it was improper for the district attorney to ask the witness whether or not he testified at the habeas corpus trial. He had the right to testify or not, as he saw proper, and the fact he did not deem it necessary nor advisable to testify on the habeas corpus hearing would not be a circumstance against him. Brown v. State, 57 Tex. Crim. Rep. 269 (122 S. W. 565), and cases there cited.”
And in Eads v. State, 66 Tex. Crim. Rep. 548 (147 S. W. 592), quoting from syllabus:
“Under the statute prohibiting any allusion to accused’s failure to testify, it is improper for the district attorney to state in argument that accused failed to testify in the examining trial, and that the record showed that he had never denied the killing until the present trial, when he admitted it.”
And in Bunkley v. State, 77 Miss. 540 (27 South. 638), quoting from syllabus:
“Under Ann. Code, § 1741, providing that an accused’s failure to testify shall not operate to his prejudice, or be commented on by counsel, it is error to admit evidence of an accused’s failure to testify at a preliminary trial, or to permit the counsel for the State to comment on such evidence.”
And in Smith v. State, 90 Miss. 111 (43 South. 465, 122 Am. St. Rep. 313), quoting from syllabus:
“It is error to permit the defendant to be questioned, on his cross-examination as a witness, as to whether he had testified at his former trial, because it is equivalent to a comment on his failure to appear as a witness at such former trial.”
And in Hare v. State, 56 Tex. Crim. Rep. 6 (118 S. W. 544, 133 Am. St. Rep. 950), quoting from syllabus:
“Where one on trial for felony testifies in his own behalf, it is error to permit the district attorney to bring out on cross-examination, and then comment on *251the fact in his argument, that the accused did not take the stand on a former trial of the case.
“A statute providing that the failure of a defendant to testify in his own behalf shall not be taken as a circumstance against him nor be referred to by counsel, is mandatory, and covers the proceedings on a former trial.”
And in Parrott v. Commonwealth, 20 Ky. Law Rep. 761 (47 S. W. 452), quoting from syllabus:
“Criminal Code, § 223, subd. 1, providing that the defendant in criminal prosecutions may testify, ‘but his failure to do so shall not be commented upon,’ applies equally to a failure to testify on the examining trial as before a trial jury, and the court should not permit the prosecuting attorney to comment on such failure.”
See, also, 1 Wharton Criminal Evidence (10th Ed.), p. 916. Underhill Criminal Evidence (2d Ed.), p. 115. Bennett v. State, 86 Ga. 401 (12 S. E. 806, 12 L. R. A. 449); People v. Watson, 216 N. Y. 565 (111 N. E. 243, Ann. Cas. 1917D, 280).
But see Underhill on Criminal Evidence (2d Ed.), p. 118, citing Taylor v. Commonwealth, 17 Ky. Law Rep. 1214 (34 S. W. 227).
Had the requests to charge preferred by counsel for defendant upon this subject been given the question of whether such error might be cured by instructions might require consideration. See People v. Hess, 85 Mich. 128. But under the charge given that question is not before us.
Upon the fifth conclusion reached by Justice Bird, I reserve opinion.
It follows that there should be reversal, new trial, and remanding of the defendant to the custody of the sheriff of Macomb county.
Moore, J., concurred with Clark, J.