(dissenting). Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to terms from 40 to 60 years on the armed robbery conviction, 10 to 15 years for the assault conviction, and 2 years for the felony-firearm conviction.
Defendant was convicted of the shotgun robbery of a soul-food restaurant in Detroit, which took place on November 16, 1979. The following facts are put forth by the prosecution. The people claim defendant and an accomplice both used firearms to rob the restaurant. Defendant allegedly shot and wounded the proprietor, who then shot and wounded defendant. Defendant fled the scene of the crime and an emergency medical service unit *427took him to Detroit General Hospital where police arrested him.
At trial in this case, Larry Till, who was previously convicted for the robbery of the soul-food restaurant, testified that defendant was not with him during the commission of the crime. Till stated that his accomplice was Henry Jones who had fled to Mississippi. The jury deliberated for 40 minutes before returning the guilty verdicts.
Defendant’s first contention is that he was denied due process of law when the trial court refused to allow him to obtain clothes, other than his jail uniform, or at least to investigate whether defendant could obtain regular clothing to wear at his trial. Defendant’s right to a fair trial and the fundamental right to be presumed innocent until proven guilty are involved in this case.
At the beginning of trial, before jury voir dire began, defense counsel moved for a continuance in order to enable the defendant to obtain civilian clothing. (It should be noted that trial counsel was the third attorney of record for defendant.) The court did not grant the continuance, noting the security problem it posed at the county jail and that defendant knew, or should have known, that he had to arrange for his own civilian clothing before the trial date. The record does not indicate whether or not defendant appeared in the blue denim jail uniform on the second and third day of trial. The issued shirt and trousers have no numbers or identifying marks on them.
This state does not compel defendants to appear before a jury in jail clothes; to require them to do so would violate due process, Estelle v Williams, 425 US 501; 96 S Ct 1691; 48 L Ed 2d 126 (1976). The issue presented here is whether a continuance must be granted when it is requested prior to jury *428voir dire. Other Michigan decisions have dealt with untimely objections to being tried in prison clothing. People v Shaw, 7 Mich App 187; 151 NW2d 381 (1967), aff'd 381 Mich 467; 164 NW2d 7 (1969), and People v Reginald Harris, 80 Mich App 228; 263 NW2d 40 (1977), lv den 406 Mich 860 (1979).
In Shaw, the defense counsel moved for a mistrial on the second day of trial on the basis that the jury had seen defendant in his jail uniform on both the first and second days of trial. "Defendant had the right to be dressed in civilian garb but there was a failure to make a timely protest of the denial of such right”, the Supreme Court held. 381 Mich 467, 475. The majority stated that "[ujnder ordinary circumstances, a court has no discretion as to a criminal defendant’s attire”, id., 474, and quoted with approval the then current 21 Am Jur 2d, Criminal Law, §239, pp 275, 276: "It is improper to bring him [defendant] into the presence of the jury which is to try him, or the venire from which his trial jury will be drawn, clothed as a convict.” The Shaw majority affirmed the Court of Appeals finding that the objection was not timely made. Justice T. M. Kavanagh, dissenting in Shaw, argued that the defendant’s substantive right to a fair and impartial jury trial was involved and not merely a procedural error which was waived by an untimely objection.
In Reginald Harris, supra, defendant argued that he was denied his right to a fair trial because he was tried in his prison uniform. The per curiam opinion states that defendant must object in a timely fashion and the "objection must be made before the jury is empaneled”. 80 Mich App 228, 230.
The objection in this case was on the first day of trial proceedings before the potential jurors were *429brought into the courtroom. While the trial court’s concern for jail security and delay are well taken, the defense request, coming before the impanelling of the jury, should have been granted. Therefore, I conclude, defendant’s convictions should be reversed.
Additionally, defendant raised two issues which, in the context of this case, would not require reversal but do merit comment. Defendant argues that the court erred in its definition of the intent necessary for armed robbery. The court stated that armed robbery requires that a defendant have specific intent to deprive the complainant of the property taken. However, the court failed to instruct that the specific intent necessary must be to permanently deprive the complainant of the property. People v Harris, 82 Mich App 135, 137; 266 NW2d 477 (1978). Due to the facts of this case and a review of the instructions as a whole, I am convinced that no reversible error has occurred on this issue.
Defendant also objects to the prosecutor’s characterization of defense witness Till as one with nothing to lose as a method of attacking his credibility. The prosecutor’s characterization that Till had nothing to lose and could not be hurt anymore on this crime, since he was already convicted, was not technically correct. Till’s testimony could have been introduced against him if, on appeal, his conviction had been reversed and he had been retried. People v Thompson, 97 Mich App 319; 293 NW2d 812 (1980). In light of the facts of this case, I do not believe this mischaracterization would require reversal but, were the defendant to be retried, the prosecutor should not mischaracterize Till’s position.
Therefore, I would reverse defendant’s convictions.