¶1(concurring specially in result) — I concur in the result on the ground defendant and his counsel made no objection on the trial or in the motion for new trial to the giving of instruction 9, apparently as a matter of trial strategy, and are therefore not in a position to complain of the instruction on this appeal.
¶2I dissent. We now say that despite Griffin v. California it is permissible to comment on the failure of the defendant to take the stand as long as it is a friendly comment. Judge Friendly’s speculation in United States v. Garguilo, 310 F.2d 249, may be right but the choice should be made by defendant and his lawyer, not by the court. I would reverse and remand for a new trial.