People v. Hampton , 52 Mich. App. 71 ( 1974 )

R. B. Burns, J.

(dissenting). I must dissent.

People v Abernathy, 29 Mich App 558; 185 NW2d 639 (1971), held that it was error for the trial court to instruct the jury that no presumption adverse to the defendant is to arise from the mere fact that he did not take the witness stand over the objection of the defendant.

In the present case, when it became apparent that the trial judge intended to mention defendant’s right of silence, defense counsel timely requested that the trial judge refrain from instructing the jury on the defendant’s failure to testify in his own behalf. This request was coupled with a clear explanation of the reason behind it. The defense wanted to avoid calling attention to defendant’s silence. The trial judge refused the request and gave an explanation of the motives behind the refusal.

It was error for the trial judge to refuse the defendant’s request. People v Moore, 39 Mich App 329; 197 NW2d 533 (1972); People v Abernathy, supra. The objection was never withdrawn. GCR 1963, 507.5 states:

"Exceptions Unnecessary. Formal exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party, at the time of the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of the objection does not thereafter prejudice him.”

I would reverse and remand for a new trial.