MEMORANDUM OPINION. The delayed application by defendant-appellant for leave to appeal is considered and the same is hereby granted. Pursuant to GCR 1963, 865.1(7), the Court reverses defendant's conviction and remands for a new trial.
Defendant was convicted by a jury of uttering and publishing a forged check, MCLA 750.249; MSA 28.446. At trial defendant did not testify. Defendant specifically requested the trial court not to give a cautionary instruction to the jury concerning his failure to testify. The trial court nevertheless gave the jury a cautionary instruction that no inference of guilt arises from a defendant's failure to take the stand.
In a criminal case where the defendant elects not to testify, the court may instruct on the effect thereof, unless defense counsel (or the defendant acting in propria persona) expressly requests, before the Court instructs the jury, that no instruction be given on the subject in which event no instruction on the subject shall be given. In trials involving more than one defendant, the court shall give such an instruction upon the request of any defendant.
Reversed and remanded for new trial.
T.G. KAVANAGH, C.J., and WILLIAMS, LEVIN, M.S. COLEMAN, J.W. FITZGERALD, and LINDEMER, JJ., concurred.
SWAINSON, J., took no part in the decision of this case.