M.S. COLEMAN, J.

FACTS

Defendant is appealing the decision of the Court of Appeals to affirm his conviction by a jury of voluntary manslaughter. He was sentenced to 2 to 15 years with the recommendation that he serve only the minimum term.

The incident occurred on Memorial Day 1971. Defendant was at the home of Mr. Ellis Samon. An argument began between Mr. Samon and a young neighbor. The youngster was ordered to leave the Samon yard. He did, returned and was again ordered to leave.

The child returned a third time accompanied by his 15-year-old brother. Mr. Samon was not present and defendant ordered the boys to leave. The older boy threw a piece of wood at defendant's car.

When again ordered to leave, the older boy said that he was going to get a gun. He went to his home and reappeared at the back door with an object which defendant claims he thought was a gun. Defendant was himself armed with a pistol. He fired and fatally wounded the boy.

At trial, it was shown that defendant owned the pistol for use in his work as a gas station attendant. He also knew that the boys had access to a weapon. Defendant claimed that his actions were taken in self-defense.

Preliminary matters and the presentation of evidence consumed four trial days. The court instructed the jury as to seven possible verdicts. The instructions cover 45 pages of transcript.

The jury deliberated four days. On three occasions the court repeated portions of its charge concerning possible verdicts. Finally, the court delivered this instruction:

"Our laws assume that in the process of deliberation and discussion it will be possible for twelve minds to meet, to reach a consensus in which all twelve participated. Now, if this assumption proves to be incorrect in case after case, our system of jury trials as we know it will have broken down and there would have to be some other system devised to replace it. Recognizing this, the high court of our State and I should have said the highest of our State and the highest court of our Nation approves of an instruction by the trial Judge concerning efforts on agreement. The only mode provided by our Constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course, be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other.

"You should consider that the case should, at some time, be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And, with this in view, it is your duty to decide the case if you can conscientiously do so without surrendering your conscientious belief.

"Now, in order to make a decision more practicable and easier to arrive at, the law places the burden of proof on one party in a criminal case and that party is the Prosecution and as I was going to say, the Prosecution is the Prosecuting Attorney. The law imposes that burden on the Prosecution. That burden is upon the Prosecution to establish every part of its case beyond a reasonable doubt and if, at any part of it you're left with a reasonable doubt, the Defendant is entitled to the benefit of that doubt and must be acquitted.

"But, in conferring together, you ought to pay proper respect to each other's opinions and listen, with a disposition to be convinced to each other's arguments.

"And, if on the one hand if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression upon the minds of so many men equally honest, equally intelligent with himself and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth and under the sanction of the same oath.

"If, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated and distrust the weight of sufficiency of that evidence which fails to carry conviction to the minds of their fellows.

"Now, I ask you to try conscienciously [sic] and honestly in your own convictions, to try to arrive at a verdict. If you can arrive at a verdict in individual good conscience, do so."

The jury left the courtroom at 11:15 a.m. At 2:35 they reached a verdict.

The Court of Appeals affirmed the conviction. Its "review of the instruction complained of demonstrates that People v Chivas, 322 Mich. 384 [ 34 N.W.2d 22] (1948) and People v Coleman, 21 Mich. App. 193 [ 175 N.W.2d 308] (1970) control".

ISSUE

Was the Allen-type charge either (1) coercive per se, or (2) coercive in this particular case?

DISCUSSION

I

The instruction delivered by the court is known as an Allen charge. The earliest example is found in Commonwealth v Tuey, 62 Mass. (8 Cush) 1 (1851). The Court approved a charge the substance of which was the same as the one quoted above. It said that this "did nothing more than to present to the minds of the dissenting jurors a strong motive to unanimity." The instruction was "entirely sound, and well adapted to bring to the attention of the jury one of the means by which they might be safely guided in the performance of their duty." Also see State v Smith, 49 Conn. 376 (1881).

The popular name for this instruction results from the United States Supreme Court's approval of the charge in Allen v United States, 164 U.S. 492; 17 S Ct 154; 41 L Ed 528 (1896). The charge was identical to that given in Tuey. The Court said:

"While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury-room. The very object of the jury system is to secure unanimity by comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury-room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself. There was no error in these instructions."

To date the United States Supreme Court and this Court have sanctioned the use of this instruction. Indicative is Kawakita v United States, 343 U.S. 717; 72 S Ct 950; 96 L Ed 1249 (1952). The United States Court of Appeals for the Ninth Circuit had discussed the Allen charge. See 190 F.2d 506. The Supreme Court did not speak to this issue saying that certain allegations of error were "either insubstantial or so adequately disposed of by the Court of Appeals that we give them no notice".

Michigan

Use of the Allen charge also has long been part of this state's jurisprudence. In People v Coulon, 151 Mich. 200; 114 N.W. 1013 (1908), the trial court urged the minority to reconsider but further indicated "that no juror should yield his well-grounded convictions or violate his oath". The trial court also said that "if upon further consideration a juror cannot conscientiously yield, of course he ought not to do so". This Court citing Tuey, Smith and Allen said such instructions were not erroneous. See People v Tutha, 276 Mich. 387; 267 N.W. 867 (1936).

Compare the decision in People v Engle, 118 Mich. 287; 76 N.W. 502 (1898) where the Court noted a deviation from the Tuey charge and granted a new trial:

"In the present case, however, the jury were not instructed that the verdict to which they agreed should be and must be each individual juror's own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows; but, on the contrary, they were instructed just the reverse, — that they must each try to be persuaded. We think the court was in error in this instruction, and that its substance had a tendency to make the jurors feel that they must give way their honest convictions upon the merits, and agree with the majority, though they had a reasonable doubt of the guilt of the respondent."

In People v Kasem, 230 Mich. 278; 203 N.W. 135 (1925), the trial court apparently told the jury that they had a duty to reach a verdict. The court indicated to the panel that it would entail great expense to declare a hung jury. This Court did not regard this as coercing agreement although "what was said might better have been omitted". Each case must be evaluated on its own facts and circumstances. See People v Digione, 250 Mich. 206; 229 N.W. 421 (1930); People v Licavoli, 256 Mich. 229; 239 N.W. 292 (1931) and People v Pizzino, 313 Mich. 97; 20 N.W.2d 824 (1945).

Defendant in the instant case admits that the trial court was most scrupulous in following the language approved in People v Chivas, 322 Mich. 384; 34 N.W.2d 22 (1948). In Chivas, the charge was given after the jury had deliberated into a second day. The Court said:

"In our opinion the court did not tell the jury that it was their duty to agree upon a verdict or tell an individual juror that he must give up his own views and agree with the majority. The jury was instructed to deliberate upon the matters in issue with an open mind, giving due credit to the opinions of others. The jurors were also instructed that the verdict must be the individual verdict of each juror and be the result of his own convictions. We are unable to find any coercion in the instructions given."

Our decisions lead to the conclusion an Allen charge is not per se coercive. Any claim of coercion must be determined on a case-by-case basis.

II

The Allen charge reached middle age before it received critical attention. Although most state and Federal courts continue to use an Allen-type charge, some jurisdictions have adopted new instructions and of those jurisdictions, some had deficiencies not present in the Michigan instruction.

However, a look at case and comment on the subject may bring into focus the principal concerns involved.

A

The giving of proper supplemental instructions serves a positive end. One author noted "the basic theme that considerations of judicial economy require that jurors reexamine their convictions in attempting to reach a verdict", and then wrote:

"[T]he interests in avoiding hung juries and in impressing jurors with the necessity to deliberate in good faith with their fellows in attempting to reach a unanimous verdict deserves substantial weight, not merely in terms of judicial administration but in terms of achieving the end product of a fair trial."

Although the elimination of supplemental instructions might retard rather than promote the interests of justice, courts must guard against coercion.

"Such an instruction is proper only if it serves to start further deliberation. If the charge has the effect of forcing a juror to surrender an honest conviction, it is coercive and constitutes reversible error. In order to determine whether the Allen instruction has such an influence on the jury, the charge must be examined in the factual context in which it is given."

The optimum instruction will generate discussion directed towards the resolution of the case but will avoid forcing a decision.

If the instruction given "can cause a juror to abandon his conscientious dissent and defer to the majority solely for the sake of reaching agreement", then that charge should not be used. Such results obviously have no place in a fair criminal justice system.

The study presently having a great impact is the ABA Project on Minimum Standards for Criminal Justice. The standards relating to trial by jury were approved by the House of Delegates in 1968. Section 5.4 reads as follows:

"Length of deliberations; deadlocked jury.

"(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

"(i) that in order to return a verdict, each juror must agree thereto;

"(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

"(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

"(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

"(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

"(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

"(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement." As we shall see, some courts have given great weight to these recommendations.

B

For nearly three quarters of a century the Allen charge had clear sailing in the Federal courts with but an occasional contrary breeze. In 1969 the Seventh Circuit addressed the problem in United States v Brown, 411 F.2d 930. The Court rejected arguments that the instruction violated the Sixth Amendment or was necessarily unfair. Noting criticisms, the Court "concluded that it would serve the interests of justice to require" under its supervisory power that district courts prospectively follow the ABA recommendation. They affirmed defendant's conviction because he could not show the charge given was so prejudicial as to warrant reversal.

In United States v Fioravanti, 412 F.2d 407 (1969), the Third Circuit analyzed a charge telling minority jurors to distrust their own judgment, a charge not present in the instant instruction. However, the Court did not reverse the conviction. The charge "was not so prejudicial as to deprive appellant of a fair trial". The Court did forbid trial judges to "direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his."

The ABA standards also were adopted in a 5-4 decision by the District of Columbia Court of Appeals sitting en banc in United States v Thomas, 146 US App DC 101; 449 F.2d 1177 (1971). The trial court had given an Allen charge but also personally encouraged the jurors to reach a verdict. The Court of Appeals deemed this coercive. The Court did not hold the Allen charge per se coercive but exercised its supervisory powers in adopting the ABA proposals for use in trials conducted after the date of their opinion.

The majority of circuits continue to permit use of the Allen charge particularly if it emphasizes that each juror has to make an individual judgment. In United States v Sawyers, 423 F.2d 1335 (1970), the Fourth Circuit noted that the instruction "twice included language emphasizing that no juror should surrender his or her conscientious convictions because of the opinion of other jurors or for the mere purpose of returning a verdict." The Court further said:

"A calmly dispassionate balanced effort on the part of a trial judge to induce a verdict does not seem to us to invade the province of the jury. What, after all, is the purpose of the judge's initial charge to the jury? It is not to induce a verdict based upon evidence and the law as he has given it to them? Why is a trial judge in the federal system given the power to comment on the evidence, and to place the burden of proof, and to advise the jury that it is their duty to accept the law as he gives it to them, unless it is to help the jury arrive at a true verdict? If the jurors misunderstand the instructions, no one, we think, would seriously suggest that the judge may not subsequently clarify or repeat them. If, at the same time, he urges further deliberation in an effort to agree upon a verdict, and in doing so his comments are balanced and not slanted toward conviction, we are unable to perceive harm to the defendant.

Also see United States v Bailey, 480 F.2d 518 (1973) where the Fifth Circuit sitting en banc reaffirmed their "decisions approving the Allen charge within the limitations therein delineated."

C

As noted above, the charge which Commonwealth v Tuey validated originally was approved in United States v Allen. In 1968 the Massachusetts Court reaffirmed the holding of Tuey. In Commonwealth v Rollins, 354 Mass. 630; 241 N.E.2d 809 (1968), the Court said the instruction was not coercive and states "merely what an intelligent juror should set as a standard for his own conduct":

"We think that the language of the Tuey case has stood the test of time as a reasonable method of inviting a jury's attention, even after the original charge, to considerations which, as reasonable men, they should take into account, without surrendering positions which conscience and careful judgment have led them to adopt. The parties are entitled to have a jury appropriately guided at all stages by the trial judge, whose proper participation is essential to fair trial by jury. The Tuey charge seems to us a method by which a trial judge may assist a jury when requesting them to consider a case further."

Also see Commonwealth v Richardson, ___ Mass. ___; 282 N.E.2d 95 (1972).

However, the Massachusetts Court recently provided some prospective guidelines. In Commonwealth v Rodriquez, ___ Mass. ___; 300 N.E.2d 192 (1973), defendant's claim that the supplemental instructions were prejudicial was rejected on the authority of Rollins. "For the future" the Court thought "certain emendations of the Tuey charge are desirable in the interests of the better administration of criminal justice" and prospectively adopted a revised version.

In an appendix the Court printed the Tuey charge with the changes it thought appropriate. The Court said the charge still "has a sting and our approval of it is not to be taken as an indication that it may be used prematurely or without evident cause." The Court also approved the illustrative charge accompanying § 5.4 of the ABA study.

Among others, Oregon, Alaska and Minnesota also proceeded to adopt the ABA standards. The Pennsylvania Supreme Court prohibited further use of the Allen charge in Commonwealth v Spencer, 442 Pa. 328; 275 A.2d 299 (1971). The ABA standards were recommended as guidelines. The ruling was prospective only. Defendant's conviction was affirmed as analysis disclosed that the jury was not coerced. For a favorable analysis of a supplemental charge, see Commonwealth v Lambert, 450 Pa. 130; 299 A.2d 240 (1973).

Exercising its supervisory powers, the Illinois Supreme Court adopted the ABA standards and recommended instructions in People v Prim, 53 Ill.2d 62; 289 N.E.2d 601 (1972). The Court did not totally prohibit use of supplemental instructions. The Court did not feel that "a jury should be left to grope in such circumstances without some guidance from the court".

The ABA standards were adopted in Maine in State v White, 285 A.2d 832 (1972). However, the Allen-type charge was not considered per se coercive, nor did it have that effect in this case. Defendant's conviction was affirmed.

Vermont also has recently disapproved "the use of such a charge that departs from the substance of the ABA standards". State v Perry, 131 Vt. 337; 306 A.2d 110 (1973).

CONCLUSION

Although the majority of state and Federal jurisdictions still approve an Allen-type supplemental charge, an increasing number of courts have found an inherent danger in the possibility that the charge may be coercively worded and applied in some cases. In order to insure fair trials generally and fewer retrials, the better practice has been deemed by many to be that found in ABA standard jury instruction 5.4. We agree in that conclusion and in the proclivity of the various courts to adopt the standard for future use.

Concluding from the standards generally approved by both Federal and state courts and by Michigan precedent, we cannot find the supplemental charge given herein coercive per se. Nor can we objectively say that it was applied coercively in this case or resulted in a coerced verdict. In fact, the great care insured by the trial judge and the extensive thought evidenced by the jury in asking for re-instructions as to particular verdicts produced a verdict quite appropriate to the admitted facts. The totality of this long trial based upon the state of the law at that time precludes any finding of error by the judge or deprivation of constitutional rights of the defendant.

However, we are persuaded that any possible future danger of coercive effect by the giving of an Allen-type charge is one which can and should be avoided. An analysis of recent cases and commentaries confirms our belief that the better practice is to be found in the recommended ABA jury standard 5.4.

Therefore, prospectively from the date of this opinion, the ABA standard jury instruction 5.4 as set forth herein is adopted by this Court. Any substantial departure therefrom shall be grounds for reversible error.

Affirm.

T.M. KAVANAGH, C.J., and SWAINSON, WILLIAMS, and J.W. FITZGERALD, JJ., concurred with M.S. COLEMAN, J.