
    PEOPLE v. TURNER HENRY
    1. Criminal Law — Instructions to Jury — Defendant’s Failure to Testify.
    Instructing the jury that defendant’s failure to testify is not a circumstance against him and that no presumption of guilt can be indulged in by the jury because of defendant’s failure to testify did not, by its negative phrasing, necessarily prejudice the jury against him where the rest of the instruction clearly stated that defendant had a right to testify if he desired and that no presumption adverse to him was to arise if he did not testify.
    2. Criminal Law — Instructions to Jury — Defendant’s Failure to Testify.
    An instruction to the jury on the defendant’s right to testify or not in a criminal case might better use a word denoting his free choice, rather than speaking of his “failure” to testify.
    Reference for Points in Headnotes
    [1, 2] 29 Am Jur 2d, Evidence § 189.
    Appeal from Becorder’s Court of Detroit, Joseph E. Maher, J.
    Submitted Division 1 November 3, 1971, at Detroit.
    (Docket No. 10835.)
    Decided November 23, 1971.
    Leave to appeal denied, 387 Mich 798.
    Turner Henry was convicted of unarmed robbery. Defendant appeals.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, 
      Chief, Appellate Department, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people. ■
    
      Carl Ziernba, for defendant on appeal.
    Before: Y. J. Brennan, P. J., and J. H. G-illis and O’Hara, J J.
    
      
       Former Supreme Court Justice, sittiug on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968,
    
   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 he unfortunate, but when read 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, 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.

Theréwas no reversible error.

Affirmed.

All concurred. 
      
       2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 906, Form No 403, pp 1282, 1283.
     