Adams, J.
LeRoy Smith, Clayton Wright and defendant Herschel M. Shaw were jointly charged with breaking and entering in the nighttime. The offense was alleged to have occurred May 15, 1963. On June 12, 1963, defendant was afforded court-appointed counsel. On October 15,1963, codefendant Wright entered a plea of guilty to the charge.
On Otcober 15, 1963, at 4:30 p.m. the case against defendant and LeRoy Smith was begun. Defendant’s court-appointed attorney appeared on his be[470]*470half. A jury was drawn and sworn. Court then recessed until the following day.
On October 16, 1963, upon the reconvening of court, Ollie B. Bivins, attorney for the defendant, addressed the court. The following took place:
“Mr. Bivins: This is a motion, sir, that is something that has occurred since we have impaneled the jury that I would like to make a court record — bring it to the court’s attention as a matter of record, something that I feel may have prejudiced my client’s rights to a fair trial.
“The Court: All right, take the jury out.
“(Thereupon the jury retired from the court room.)
“The Court: All right, Mr. Bivins, make your motion.
“Mr. Bivins: Your Honor, at this time I would like to make a motion for a mistrial for the following reason; that I believe that the minds of the jury is unduly prejudice 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 being, 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 Court: Well, let me ask you this. You are his lawyer; why didn’t you bring him here in ordinary clothes? You could have had him — •
“Mr. Bivins (interposing): He has clothes, your Honor, but I cannot go over to the county jail and make those people let him put the clothes on. He requested the right to put his clothes on.
“The Court: I don’t know that.
“Mr. Bivins: I realize the court does not know that, but, nevertheless, here they sit in full view. [471]*471And I am saying that this would prejudice their rights to a fair trial. These are only human beings sitting there. A man comes into court looking like a criminal—
“The Court (interposing): What do you say, Mr. Prosecutor ?
“Mr. Jakeway: Well, your Honor, when we started the case yesterday they were dressed like this and no objection was made at that time, and when the men were brought in here today the jury wasn’t in here yet, and no motion was made at that time, and I would think it would be okay with me if the court would ask the jury the question, whether they would be prejudiced by the way the defendants are dressed in court. But I don’t think they would be prejudiced — in fact, I feel they wouldn’t be prejudiced by what the men are wearing.
“Mr. Bivins: 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 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 mind. 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 Court: I am going to deny your motion, Mr. Bivins. You have been counsel for this man for quite some time and you have known since the 26th day of August when it was going to be tried, and I [472]*472think you could have arranged to have them appear in whatever clothing you thought proper.”
The people’s case was presented. No witnesses were produced for the defendants. The jury was charged, retired at 2:20 o’clock p.m. and returned at 2:45 o’clock p.m. with a verdict of guilty.
Upon appeal, the Court of Appeals held that the objection to the way defendant Shaw was clothed was not timely made and that the error complained of was not so gross as to have deprived defendant of a fair trial so that his conviction was a miscarriage of justice. People v. Shaw (1967), 7 Mich App 187.
The Court of Appeals stated, referring to the trial court (p 192):
“That a éourt 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 (1965), 1 Mich App 118.”
In Eaddy v. People (1946), 115 Colo 488 (174 P2d 717), it is stated (pp 491, 492):
“We believe the mind of a prisoner would be as much disturbed and his mental faculties as much confused and embarrassed by carrying on his person such brand of incarceration, as here required, as by physical shackles, and that a prejudice against a prisoner might eqnally well be created thereby in the minds of the jurors. It is difficult to find any distinction, as to the humiliation involved, between requiring a prisoner to wear the words ‘County Jail’ branded upon his clothing and requiring him to wear them on a placard attached about his neck; either is a mockery, an indignity and a humiliation not consonant with innocence and freedom. The presumption of innocence requires the garb of innocence, and regardless of the ultimate outcome, or of the evidence awaiting presentation, every defend[473]*473ant 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 court may otherwise require.”
The opinion states (p 490)-:
“At the trial he was brought into court wearing striped coveralls with the words ‘County Jail’ written in large letters across the back. Objection to this garb in behalf of defendant and request that the court direct the proper officer to return him to the court room properly attired were • overruled.”
The defendant was granted a new trial.
In the case of Shultz v. State (1938), 131 Fla 757 (179 So 764), the opinion is expressed that to be clothed as a convict when one has not been convicted is highly improper and that it might well be grounds for a reversal. In that case, reversal was based upon other grounds.
In the case of
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Adams, J.
LeRoy Smith, Clayton Wright and defendant Herschel M. Shaw were jointly charged with breaking and entering in the nighttime. The offense was alleged to have occurred May 15, 1963. On June 12, 1963, defendant was afforded court-appointed counsel. On October 15,1963, codefendant Wright entered a plea of guilty to the charge.
On Otcober 15, 1963, at 4:30 p.m. the case against defendant and LeRoy Smith was begun. Defendant’s court-appointed attorney appeared on his be[470]*470half. A jury was drawn and sworn. Court then recessed until the following day.
On October 16, 1963, upon the reconvening of court, Ollie B. Bivins, attorney for the defendant, addressed the court. The following took place:
“Mr. Bivins: This is a motion, sir, that is something that has occurred since we have impaneled the jury that I would like to make a court record — bring it to the court’s attention as a matter of record, something that I feel may have prejudiced my client’s rights to a fair trial.
“The Court: All right, take the jury out.
“(Thereupon the jury retired from the court room.)
“The Court: All right, Mr. Bivins, make your motion.
“Mr. Bivins: Your Honor, at this time I would like to make a motion for a mistrial for the following reason; that I believe that the minds of the jury is unduly prejudice 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 being, 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 Court: Well, let me ask you this. You are his lawyer; why didn’t you bring him here in ordinary clothes? You could have had him — •
“Mr. Bivins (interposing): He has clothes, your Honor, but I cannot go over to the county jail and make those people let him put the clothes on. He requested the right to put his clothes on.
“The Court: I don’t know that.
“Mr. Bivins: I realize the court does not know that, but, nevertheless, here they sit in full view. [471]*471And I am saying that this would prejudice their rights to a fair trial. These are only human beings sitting there. A man comes into court looking like a criminal—
“The Court (interposing): What do you say, Mr. Prosecutor ?
“Mr. Jakeway: Well, your Honor, when we started the case yesterday they were dressed like this and no objection was made at that time, and when the men were brought in here today the jury wasn’t in here yet, and no motion was made at that time, and I would think it would be okay with me if the court would ask the jury the question, whether they would be prejudiced by the way the defendants are dressed in court. But I don’t think they would be prejudiced — in fact, I feel they wouldn’t be prejudiced by what the men are wearing.
“Mr. Bivins: 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 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 mind. 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 Court: I am going to deny your motion, Mr. Bivins. You have been counsel for this man for quite some time and you have known since the 26th day of August when it was going to be tried, and I [472]*472think you could have arranged to have them appear in whatever clothing you thought proper.”
The people’s case was presented. No witnesses were produced for the defendants. The jury was charged, retired at 2:20 o’clock p.m. and returned at 2:45 o’clock p.m. with a verdict of guilty.
Upon appeal, the Court of Appeals held that the objection to the way defendant Shaw was clothed was not timely made and that the error complained of was not so gross as to have deprived defendant of a fair trial so that his conviction was a miscarriage of justice. People v. Shaw (1967), 7 Mich App 187.
The Court of Appeals stated, referring to the trial court (p 192):
“That a éourt 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 (1965), 1 Mich App 118.”
In Eaddy v. People (1946), 115 Colo 488 (174 P2d 717), it is stated (pp 491, 492):
“We believe the mind of a prisoner would be as much disturbed and his mental faculties as much confused and embarrassed by carrying on his person such brand of incarceration, as here required, as by physical shackles, and that a prejudice against a prisoner might eqnally well be created thereby in the minds of the jurors. It is difficult to find any distinction, as to the humiliation involved, between requiring a prisoner to wear the words ‘County Jail’ branded upon his clothing and requiring him to wear them on a placard attached about his neck; either is a mockery, an indignity and a humiliation not consonant with innocence and freedom. The presumption of innocence requires the garb of innocence, and regardless of the ultimate outcome, or of the evidence awaiting presentation, every defend[473]*473ant 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 court may otherwise require.”
The opinion states (p 490)-:
“At the trial he was brought into court wearing striped coveralls with the words ‘County Jail’ written in large letters across the back. Objection to this garb in behalf of defendant and request that the court direct the proper officer to return him to the court room properly attired were • overruled.”
The defendant was granted a new trial.
In the case of Shultz v. State (1938), 131 Fla 757 (179 So 764), the opinion is expressed that to be clothed as a convict when one has not been convicted is highly improper and that it might well be grounds for a reversal. In that case, reversal was based upon other grounds.
In the case of Brooks v. Texas (CA 5, 1967), 381 F2d 619, the defendant was brought to trial handcuffed and in his jail uniform. The Court said (p 624):
“It is inherently unfair to try a defendant for crime while garbed in his jail uniform, especially when his civilian clothing is at hand. No insinuations, indications or implications suggesting guilt should be displayed before the jury, other than admissible evidence and permissible argument.”
In Brooks, the Court held that the defendant was denied the effective assistance of counsel primarily because of counsel’s failure to prepare properly for trial and to afford the defendant the defense of insanity which was the only available defense. The judgment of the district court was reversed with directions to grant the writ of habeas corpus unless the State of Texas elected within a reasonable time -to again try defendant.
[474]*474As supporting the proposition that a court may exercise discretion as to the criminal defendant’s attire, the Court of Appeals cited People v. William L. Thomas (1965), 1 Mich App 118. In that case the defendant was brought into court in prison uniform and in chains. This was done as a precautionary measure to prevent another escape by the defendant who had once escaped from prison. In People v. Henley (1965), 2 Mich App 54, 57, 58, also noted by the Court of Appeals, the trial judge was obliged to have the defendant forcefully clothed and brought into the court room shackled to a chair because he could not be controlled in any other way. We do not think the action taken in those cases by the trial court has any application to the facts of this case.
Under ordinary circumstances, a court has no discretion as to a criminal defendant’s attire. The rule of law is stated in 21 Am Jur 2d, Criminal Law, § 239, pp 275, 276, as follows:
“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 óf a free and innocent man, except as the necessary safety and decorum of the 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.”
•• In the present case the issue as to how the def éndant was garbed was never raised by his attorney until after the jury was chosen and the jury had twice had an opportunity to see defendant in prison garb. While defendant’s attorney moved for a mistrial, he made no attempt to adduce proof that the [475]*475defendant had requested the right to wear his own clothes. The court pointed out that he had no knowledge of the truth of counsel’s assertion to that effect. Finally, counsel made no response whatsoever to the court’s statement: “You have been counsel for this man for quite some time and you have known since the 26th day of August when it was going to be tried, and I think you could have arranged to have them appear in whatever clothing you thought proper.”
Defendant had the right to be dressed in civilian garb but there was a failure to make timely protest of the denial of such right. There is no claim in this case that the defendant was denied effective assistance of counsel.
Evidence presented by the people showed the defendant was in the driver’s seat of a car with the motor running while the two codefendants were breaking into Brice’s TY Shop in the city of Flint. Defendant and his companions were followed. Several witnesses saw the car. The car license was noted. Mrs. Randall testified that the defendants entered her apartment with the stolen goods. She reported the matter to the police. The defendants were apprehended. The stolen goods were identified by the store owner. Codefendant Clayton Wright identified defendant as a participant in the crime. The conviction of the defendant was the result of direct and convincing evidence. We conclude that the defendant was not deprived of a fair trial.
The Court of Appeals is affirmed.
T. E. Brennan, C. J., and Dethmers, Kelly, and Black, JJ., concurred with Adams, J.