
7 Mich. App. 187 (1967)
151 N.W.2d 381
PEOPLE
v.
SHAW.
Docket No. 2,224.
Michigan Court of Appeals.
Decided June 27, 1967.
Leave to appeal granted October 4, 1967.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard. Prosecuting Attorney, and Edward G. Henneke, Assistant Prosecuting Attorney, for the people.
Douglas M. Philpott, for defendant.
Leave to appeal granted October 4, 1967. See 379 Mich 782, 381 Mich 467.
HOLBROOK, P.J.
Defendant, Herschel Shaw, participated with 2 others in stealing a television set and 2 stereo record players from a Flint business establishment during the evening of May 15, 1963. He was subsequently convicted by jury of the crime of breaking and entering in the nighttime[*] and sentenced to a term of 5 to 15 years at the State prison of Southern Michigan at Jackson.
The pertinent facts to this review are as follows: Defendant Shaw's trial began with the impaneling of a jury in the late afternoon of October 15, 1963. *189 He attended this selection of a jury with codefendant Smith, codefendant Wright having previously entered a plea of guilty. Both Shaw and Smith were dressed in striped, county jail uniforms; however, no objection as to their appearance was raised by defense counsel that afternoon.
The following morning Shaw and Smith appeared for trial, again wearing the striped, county jail uniforms. After the jury entered the courtroom but before the prosecution's opening statement was made, defendant Shaw's counsel asked the court to excuse the jury. When the jury had retired, he made a motion for a mistrial claiming prejudicial denial of a fair and impartial trial. Defense counsel stated in part:
"I believe that the minds of the jury are unduly prejudiced towards Mr. Smith and Mr. Shaw due to the fact that they have been brought into court in county jail prison uniforms; that these men have clothes that they can come in here like any other human beings, not come in here dressed like criminals. I think that this presumption of innocence is tarnished somewhat when the jury can sit there and see these men in striped uniforms, and I think that, based upon the fact that they may not be granted a fair and impartial hearing, that this court should declare a mistrial."
The prosecutor called the trial court's attention to the fact that no objection to the attire of defendants had been made the previous afternoon and that he personally did not believe the jury would be prejudiced. Defense counsel then stated:
"As to the reason why it wasn't brought to the attention of the court this morning before the jury sat down is because the jury had an opportunity to see them yesterday. Now, we were somewhat pushed for time. Maybe it was an oversight on *190 my part, but the chances are I didn't think of it then. But as far as what  in the prosecutor's opinion  he cannot substitute his opinion for the opinion of the jurors any more than I can. I believe that this would happen. I have no assurance that this would. Now, I would suggest that  a suggestion that the jury disregard this or ask them a question, would they be prejudiced by these men coming into court in this uniform, invariably, the answer would be no. We can't get inside their minds. The presumption of innocence, in my opinion, is tarnished the minute they walk in here. They are prisoners. The average person thinks if a person is under arrest, he has committed a crime, he is guilty of something, otherwise he wouldn't be here."
The motion for a mistrial was denied, the trial court indicating that defense counsel had known for some time that the case had been set for trial and could have arranged for defendants to appear clothed as he thought proper. Further, the court indicated the lateness of the motion. The trial then proceeded terminating in the convictions of Shaw and Smith. Only defendant Shaw has appealed.
The sole question for review is whether there was a denial of defendant Shaw's right to a fair and impartial trial when he appeared for jury selection and trial attired in a striped, county jail uniform.
In the absence of any Michigan cases directly in point, defendant urges this Court to adopt the rule of law found in 21 Am Jur 2d, Criminal Law, § 239, pp 275, 276:
"Trial of defendant in prison garb.
"Since the defendant, pending and during his trial, is still presumed innocent, he is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man, except as the necessary safety and decorum of the *191 court may otherwise require. He is therefore entitled to wear civilian clothes rather than prison clothing at his trial. It is improper to bring him into the presence of the jury which is to try him, or the venire from which his trial jury will be drawn, clothed as a convict." (Footnotes omitted.)
Eaddy v. People (1946), 115 Colo 488 (174 P2d 717), one of 3 cases cited in support of the above rule of law, involved the trial of a Negro soldier wearing a United States Army uniform at the time of arrest but wearing striped overalls with the words "county jail" on them at trial. The Colorado supreme court found prejudicial error where objection was made and a request for the trial court to direct the proper officer to return defendant to the courtroom properly attired was overruled. It appears that the objection and request were made immediately upon defendant's being brought into court. Notwithstanding the fact that it lacked precedent that court stated as follows (pp 490-492):
"Ordinarily a defendant may be brought to trial in the garments in which he is apprehended unless he himself procures other fit garments, in which case he may wear them. If there is any substantial reason why a defendant should not stand trial in garb so worn or procured by him, then, after opportunity to procure proper clothing, he may be tried in any fit and decent clothing furnished by the jailor, and conventionally made coveralls of customary striped or other material should be adequate. The decision as to proper clothing should be within the sound discretion of the trial court which has the custody of the defendant; * * *
"The presumption of innocence requires the garb of innocence, and regardless of the ultimate outcome, or of the evidence awaiting presentation, every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a *192 free and innocent man, except as the necessary safety and decorum of the court may otherwise require. Such right was not given this defendant."
On appeal, the defendant in People v. William L. Thomas (1965), 1 Mich App 118, raised in issue whether his appearance in court in prison uniform and in chains prejudiced the jury. We admitted there that it would have been better had he been brought into court in civilian clothes and unchained, but also noted that precautionary measures may be taken within the discretion of the trial court to curtail violence and to prevent escape. Also, see People v. Henley (1965), 2 Mich App 54, 57, 58.
That a court has discretion as to the criminal defendant's attire is manifest from both the Eaddy Case and our case of People v. William L. Thomas, supra. Further, this Court in People v. Schram (1965), 1 Mich App 279, at p 284, made a singularly helpful comment about the motion for a mistrial: "A motion for a mistrial, just as a motion for a new trial, puts in question the fairness and impartiality of the trial. It is an appeal to the sound discretion of the court." Because a trial court has this discretionary power we are led to conclude that the matter of a defendant's garb at trial is a procedural right. And therefore, like many other procedural rights, it may be bypassed and even lost where there is a failure to properly assert it.
In the instant case, the jury observed Shaw twice before objection was made: the previous afternoon during impaneling of a jury and again on the morning of trial. In view of the position that we have herein taken, defense counsel failed to timely assert the right of defendant to appear before the jury in his own clothing. Objection could and should have been made, as it appears to have been made in the *193 Eaddy Case, as soon as defendant entered the courtroom prior to selection of the jury.
However, assuming an honest oversight as to defendant's attire on the afternoon of October 15, it still appears that no effort calling this claimed prejudice to the trial judge's attention was made the following morning before the jury assembled. It is easily deduced that defense counsel in making objection when he did, permitted the jury to observe defendant for a second time in jail garb.
Another of the 3 cases cited as supporting the above rule of law is Collins v. State (1940), 70 Okla Crim 340 (106 P2d 273). Faced with facts similar to those of the case at bar except that a request for defendant to appear in civilian attire was made before trial, the court therein stated that although the wearing of prison garb may be grounds for reversal, the defendant's conviction was not to be set aside where the evidence was undisputed, the testimony uncontradicted, and the sentence recommended by the jury was less than the maximum so that it appeared that defendant had not been prejudiced. Here, as in the Collins Case, there is undisputed evidence and uncontradicted testimony with respect to the defendant's involvement in the crime charged.
The last of the cases supporting the above rule of law, Shultz v. State (1938). 131 Fla 757 (179 So 764), can be distinguished. There the appellate court reversed the defendant's conviction where he appeared in prison garb but predicated its reversal on a conviction obtained by reason of circumstantial evidence. Our case clearly shows the conviction of defendant Shaw to be the result of direct evidence and consequently CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096) governs.
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of *194 this State in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice." (Emphasis supplied.)
It would be most difficult to reach the conclusion that defendant's substantive rights were violated so as to deny him a fair and impartial trial. The trial judge instructed the jury as to the presumption of innocence, viz:
"You know from your previous cases that each defendant starts the trial of the case with a presumption of innocence in his favor, and this presumption continues throughout the course of the trial until you have reached the jury room and have arrived at the conclusion that the people have proven their case beyond a reasonable doubt."
In People v. Kasem (1925), 230 Mich 278, at p 290, the Michigan Supreme Court stated, "We have no right to reverse a conviction unless we are satisfied that there was such error committed on the trial as deprived the defendant of substantial rights or resulted in a miscarriage of justice." And in People v. Ritholz (1960), 359 Mich 539, Mr. Justice TALBOT SMITH stated on p 559: "We must be persuaded that the errors complained of were so gross as to have deprived defendant of a fair trial, that his conviction was, in truth, a miscarriage of justice." The objection as to the right of defendant Shaw to appear in civilian clothing was not timely made. Finally, in the language of People v. Ritholz, supra, we are not persuaded that the error complained of was so gross as to have deprived defendant of a fair trial, *195 that his conviction was, in truth, a miscarriage of justice.
Affirmed.
FITZGERALD and J.H. GILLIS, JJ., concurred.
NOTES
[*]  CL 1948, § 750.110, since amended by PA 1964, No 133 (Stat Ann 1965 Cum Supp § 28.305).
