People v. Henry, Docket No. 10835

• Decision Date: 23 November 1971
• Docket Number: No. 1,Docket No. 10835,1
• Citation: 194 N.W.2d 456,37 Mich.App. 160
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Turner HENRY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 456

194 N.W.2d 456

37 Mich.App. 160

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Turner HENRY, Defendant-Appellant.

Docket No. 10835.

Court of Appeals of Michigan, Division No. 1.

Nov. 23, 1971.

Released for Publication Feb. 25, 1972.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and O'HARA, ^* JJ.

O'HARA, Judge.

This is an appeal from a jury conviction of the offense of unarmed robbery, M.C.L.A. § 750.530 (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 U.S. 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 be 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, 107 N.W. 716, and has found its way into the widely used and highly respected Gillespie, ¹ 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.

There was no reversible error.

Affirmed.

* MICHAEL D. O'HARA, former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23 as amended in 1968.

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