Defendant was convicted by a jury of prison escape, MCL 750.193; MSA 28.390, and of being a fourth-offense habitual offender, MCL 769.12, 769.13; MSA 28.1084, 28.1085. Sentenced to three to ten years in prison, he appeals as of right.
Defendant raises three claims of error. First, the defendant claims the trial court committed error in its instructions to the jury. Second, defendant argues that the delay between his arrest and arraignment requires reversal. Finally, defendant argues that the trial court lost jurisdiction because he was not brought to trial within the 180 days required by MCL 780.131; MSA 28.969(1). We concur in the results reached by Judge Robinson regarding the last two of defendant’s three claims *726of error. We have concluded, however, that the trial court committed reversible error in its instructions to the jury.
Defendant contends that the trial court deviated improperly from ABA Standard Jury Instruction 5.4 in its charge to the jury.1 The ABA charge, approved in People v Sullivan, 392 Mich 324, 327-329; 220 NW2d 441 (1974), sets out permissible instructions to a jury unable to agree on a verdict.
In People v Goldsmith, 411 Mich 555; 309 NW2d 182 (1981), the Supreme Court confirmed that any substantial departure from the ABA charge is reversible error. Coercive effect is irrelevant. People v Allen, 102 Mich App 655, 658-660; 302 NW2d 268 (1981), lv den 411 Mich 870 (1981), provides the proper standard of review:
"We believe that the Supreme Court in Sullivan intended to announce a prophylactic rule eliminating the necessity of future appellate inquiry into the coercive effect of any number of possible variants on the Allen charge [Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896)]. One form was approved, and the Court clearly indicated its intent that only that form be used in the future. Because the new rule was made prospective, Allen-type charges in trials occurring before Sullivan were still subject to a case-by-case analysis, but the only case-by-case inquiry necessary in trials taking place after Sullivan involves whether the instruction given is a 'substantial departure’ from the ABA charge. * * * To the extent that other decisions of this Court have suggested that deadlocked-jury instructions given in post -Sullivan trials are to be examined on a case-by-case basis for their coercive effect, we believe they were wrongly decided.
"* * * We are not concerned with whether such statements are true or whether they are coercive. Our sole inquiry is whether they represent a substantial *727departure from the ABA charge * * *. It makes no difference that in Sullivan the Supreme Court held that the instruction challenged in the instant case was not coercive. The trial which we are reviewing took place after Sullivan so that questions of coercion are no longer involved. The Supreme Court could not have more clearly directed that the issue is no longer one of 'coercion’ but of 'substantial departure’ from the ABA charge.”
See, also, People v Johnson, 112 Mich App 41, 44-47; 314 NW2d 794 (1981).2
In the case at bar, the trial court made several remarks which, taken as a whole, clearly constituted a substantial departure from the ABA charge.
After deliberating for less than four hours on the escape charge, the jury indicated that it was unable to reach a unanimous verdict. In an attempt to avoid a hung jury, the trial court gave the following instructions:
"The Court: Mr. Foreman, we have received this note from you: 'We feel we cannot reach a unanimous decision.’
"Ladies and gentlemen of the jury, if you cannot agree on a verdict, I want to tell you what will happen. The court will have to declare a mistrial, which means it must be retried before another 12 people at the next term of court. I cannot believe that the next jury panel will produce any 12 people who are more intelligent and more conscientious than the 12 of you. I want to reread some of my instructions to you.”
The trial court then gave several instructions *728which substantially conformed to the ABA charge. However, the court followed the permissible instructions with these remarks:
"The Court: Then I’d like to have you go back and consider what I have just said. Now, I will not keep you here past noon. I will urge you to try and decide on a verdict, because eventually, 12 people will have to decide this case, and I don’t think that I have ever seen 12 nicer people than you.”
Shortly thereafter, the jury returned a verdict of guilty.
These extraneous remarks clearly amount to a substantial departure from the ABA charge.
After approximately three hours of deliberation on the supplemental charge of being a fourth-felony offender, the jury once again indicated that it was unable to reach a unanimous verdict. In an attempt to avoid a hung jury on this charge, the trial court made the following remarks:
’’The Court: Mr. Foreman, would you stand, please? We have received this note from you: 'We feel a unanimous decision cannot be reached.’
"I think that somehow I’ve got you confused, and I wonder if there is some additional instruction that might help you, because the issue is not really that complicated. Either he is a fourth-felony offender, or he is not, and let me read to you again what I read to you last week.
"If you cannot agree on a verdict, I want to tell you what will happen. The court will have to declare a mistrial, which means that it must be re-tried before another 12 people at the next term of court. I cannot believe that the next jury panel will produce any 12 people who are more intelligent and more conscientious than the 12 of you, and, in other words, eventually, 12 Kent County residents are going to have to answer that question.
*729"Mr. Foreman, do you think that another 45 minutes might be productive?”
Manifestly, these remarks constitute an even more serious departure from the ABA charge.
Under Allen, supra, any language employed by the trial court aimed at encouraging the jury to reach, a decision constitutes a "substantial departure” from the ABA charge unless the ABA standard instruction "sanctions such a charge”. Goldsmith, supra, 561. Coercive effect is irrelevant.
Since the ABA standard instruction does not sanction the irregular remarks made by the trial court in the case at bar, and since these remarks are aimed at encouraging the jury to reach a decision, the defendant’s conviction must be reversed.
Reversed and remanded for a new trial.
D. E. Holbrook, Jr., J., concurred.The standard jury instruction is set forth by the dissent. See infra fn 1.
As the dissent points out, I have cited People v Johnson, 112 Mich App 41; 314 NW2d 794 (1981), even though the Johnson panel found that instructions similar to those given by the trial court in this case did not substantially depart from the ABA charge. Although I agree with the standard announced in Johnson, I believe that the "substantial departure” test was applied incorrectly.