(concurring in part, dissenting in part). Defendant was convicted after a jury trial of armed robbery, MCLA 750.529; MSA 28.797. He was sentenced to a prison term of not .less than 7-1/2 nor more than 15 years. He now appeals by right.
On appeal, defendant propounds two claims upon which he urges reversal. The first claim arises from the following situation: Shortly after the jury began deliberations, the jury sent a note to the judge informing him that they would like to hear the testimony of "Randy Evans and Andrew Gaines to clarify points” and "we would also like to hear Mark’s testimony”. Defendant’s first argument is bottomed on the trial judge’s refusal to accede to the jury’s request.
I agree with the majority opinion that the trial court properly exercised its discretion in requesting the jury to resume deliberations without rehearing the testimony of the three witnesses with the knowledge that, if necessary, the judge would consider the jury’s request at a later time. People v Howe, 392 Mich 670; 221 NW2d 350 (1974).
However, I believe that the trial court committed reversible error when it gave the following supplemental instruction:
"I do not think that we have reached the drastic point where I will start reading back testimony to you yet.
"Further, maybe I can’t explain it to you, but I should explain it to you as jurors you are required to depend on your collective recall of all the jurors, and that is one juror can’t say I recall the testimony this way and unless I hear it read back to me I’m not going to change my mind.
"Do you understand what I’m saying? You have to discuss it among yourselves and you have to, you might *80not remember. I told you yesterday when we started out that it was an important case and that you listen to the testimony because now if you didn’t hear something, you think that you might have heard something, one way or the other, and there is [sic] seven or eight of the jurors that say no, it wasn’t that way, or it wasn’t this way, it was this way or whatever might be said, I’m not trying to tell you how to present it to you, but you have to rely on that.
"Okay, because it would take as long as it took for the trial to read it all back to you. I don’t think we have reached that drastic a measure yet.
"If you have to have it read back in a little while, please send a note and indicate that.
"Please go back into the Jury Room.” (Emphasis added.)
In People v Sullivan, 392 Mich 324, 342; 220 NW2d 441 (1974), the Supreme Court explicitly warned against the utilization of this type of charge:
"However, we are persuaded that any possible future danger of coercive effect by the giving of an Allen-1type charge is one which can and should be avoided. An analysis of recent cases and commentaries confirms our belief that the better practice is to be found in the recommended ABA jury standard 5.4.
"Therefore, prospectively from the date of this opinion, the ABA standard jury instruction 5.4 as set forth herein is adopted by this Court. Any substantial departure therefrom shall be grounds for reversible error.”
I am convinced that the instant charge was a substantial departure from the ABA standard. The obvious result of such a charge is to "cause a juror to abandon his conscientious dissent and defer to the majority solely for the sake of reaching agree*81ment * * * . Such results obviously have no place in a fair criminal justice system”, Sullivan, p 334. I therefore must dissent from the majority’s conclusion as to this issue.
The majority opinion further holds that even if there was error here, it was "harmless because of the overwhelming convicting evidence”. I cannot agree. I believe that the harmless error doctrine is as inappropriate to this case as it was in People v Henry Smith, 396 Mich 109, 110; 240 NW2d 202 (1976). There:
"The Court of Appeals * * * found no 'confusion or ambiguity as to the testimony of witnesses,’ noted that the jury reached its verdict in less than two hours, and concluded that the 'totality of circumstances * * * convinces us that no miscarriage of justice occurred.’ ”
I believe that a fair interpretation of this Court’s reasoning in Smith, supra, disapproved of by the Supreme Court, shows this Court’s rationale in Smith to be indistinguishable from the majority’s reasoning. Therefore, I would reverse and remand for a new trial.
Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).