#### PEOPLE *v.*MARR.

1. Criminal Law — Due Process — Defendant’s Refusal to Testify — Comment by Prosecution — Appeal and Error — Inadequate Transcript.

The Court of Appeals will not find in favor of error under eireumstanees in which the trial transcript in a murder trial failed to record the closing remarks of counsel in full because not required to be reported by statute then in effeet, and where as a result the relationship to the case of certain remarks of the prosecutor is unknown; therefore the Court of Appeals must refuse to find that the prosecutor’s remark, “He could tell you what he told him” was made in reference to defendant’s refusal to testify, since this remark could have been made in reference to a number of other matters.

2. Same — Instructions to Jury — Appeal and Error — Objection— Preserving Question.

The Court of Appeals will not consider objections to the trial court’s charge to the jury not made at the time of trial except to prevent a miscarriage of justice.

References for Points in Headnotes

[1] 4 Am Jur 2d, Appeal and Error § 404.

[2] 5 Am Jur 2d, Appeal and Error. § 545.

Appeal from Kent, Vander Ploeg (Claude), J.

Submitted Division 3 October 9, 1968, at Grand Rapids.

(Docket No. 4,564.)

Decided October 22, 1968.

Robert Hunter Marr was .convicted of murder in the second degree. Defendant makes delayed motion for new trial. Motion denied. Defendant appeals.

Affirmed.

*643
      *Frank J. Kelley,*Attorney General, *Robert A. Derengoski,*Solicitor General, *James K. Miller,*Prosecuting Attorney, and *S. J. Venema*and *W. J. Nykamp,*Assistant Prosecuting Attorneys, for the people.

*Adrian W. Verspoor,*for defendant.

Per Curiam.

An information was filed charging defendant. Robert Marr with the murder of Earl C. Appleton, contrary to the provisions of CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548). The defendant was tried by jury and found guilty of murder in the second degree.

On appeal, defendant charges that the prosecutor in his final argument to the jury committed prejudicial error by commenting to the jury upon the fact that defendant did not take the witness stand in his own defense.

The record reveals that neither the closing argument of the prosecutor nor the defense was stenographically recorded. This was an acceptable practice at the time of trial and not prohibited by statute.* The record reveals no request to have the final argument of either counsel recorded.

Defendant’s assigned error is based on the portion of prosecutor Milanowski’s final argument, which was recorded as follows:

> *“Mr. Milanowski:*He could tell you what he told him.”

The attorney for defendant, Mr. Verspoor, objected to this remark as follows:

> *“Mr. Verspoor:*I object to that as prejudicial.”

No further reference to this matter is contained in the record. No motion for a mistrial is indicated, *644no request for instructing to cure this alleged error is indicated, no ruling by tbe court on tbe objection is indicated.

From an examination of tbe entire record of tbis cause it is impossible for tbis Court to conclude that tbis was in fact a comment upon defendant’s failure to take tbe stand. Tbis comment could equally be taken to be a reference to wbat tbe deceased said to tbe defendant, if be were able to now speak, or wbat someone else may have said.

Under tbe circumstances of tbis case we will not find in favor of error. The trial judge, skilled through bis many years of criminal trials, sufficiently instructed tbe jury on tbe defendant’s presumption of innocence, on tbe right of tbe defendant not to testify, and the duty of tbe prosecution to prove every element of the offense beyond a reasonable doubt.

Additionally defendant on appeal charges several errors in tbe charge of tbe trial court. No objections to tbe charge were made at tbe trial. We will not consider objections to tbe charge on appeal not made at time of trial except to prevent a miscarriage of justice.

Tbe record made in tbis cause reveals no prejudicial or reversible error.

Affirmed.

Lesinski, O. J., and Fitzgerald and Templin, JJ., concurred.

See CL 1948, § 691.307 (Stat Ann § 27.337), since replaced Ey OCR 1963, 915,3,