(dissenting) :
I respectfully dissent from that portion of the court’s opinion relating to the plea of guilty at arraignment which was subsequently withdrawn by leave of the trial court. In my opinion the use of the with-drawn plea of guilty as evidence is a violation of the constitutional privilege against self-incrimination guaranteed to the defendant, Marlene Wright, by Article 2, § 10, of the Constitution of Arizona,1 A.R.S. and the Fifth Amendment to the Constitution of the United States2 which is applicable to this action by virtue of the Fourteenth Amendment.3
The record discloses that no objection was made by the defendant’s counsel to the question on cross-examination.4 Does such failure preclude this Court from considering the defendant’s contention that the asking of the question is reversible error? In State v. Smith, 101 Ariz. 407, 420 P.2d 278 (1966) our Supreme Court, holding that the failure of counsel to object is not a waiver of the objection when the privilege against self-incrimination is involved, stated:
“Mention is made of the fact that the defendant failed to object at trial * *. The state contends that this is equivalent to a waiver of the objection, but we must disagree.
* * * * * *
“ * * * When one has been denied a constitutional right as essential as the right against self-incrimination, prejudicial effect will be presumed and the error will be deemed fundamental.” 101 Ariz. 407, 410, 420 P.2d 278, 281.
If fundamental error be present because of a violation of the defendant’s privilege against self-incrimination, it is my opinion that this Court may, and should, reverse the judgment of the trial court and remand the case for a new trial despite the rule of Rascon v. State, 47 Ariz. 501, 57 P.2d 304 (1936). A.R.S. § 13-1715 mandates this Court to search for fundamental error and, if found, reverse the conviction although the defendant has not raised this particular contention in her briefs. State v. Eddington, 95 Ariz. 10, 386 P.2d 20 (1963). This would be true if the defendant had not filed briefs. State v. Houston, 80 Ariz. 86, 292 P.2d 1077 (1956). The question then is whether fundamental error was committed when the withdrawn plea of guilty was admitted in evidence. I believe that it was. In Rascon the Supreme Court found no error in permitting the county attorney to ask whether the defendant previously had pleaded guilty to the charge. But the issue was not presented to the Court, as I think it should have been, as one involving a vital constitutional principle. There is internal evidence in Rascon that the gravity of the *363matter was not brought home to the Supreme Court and that, in fact, strong authority contrary to the rule of evidence adopted by the Supreme Court was overlooked.5
In a cogently reasoned opinion in Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318 (1942), Rutledge, J., (later Justice Rutledge of the United States Supreme Court) concluded that the true basis for excluding evidence of a withdrawn plea of guilty is that it violates the privilege against self-incrimination. He reasoned that the arraigning court has the power to require the defendant to enter a plea and that to give the resulting plea, although later withdrawn, evidentiary effect is to allow the court indirectly to compel the defendant to be a witness against himself. The essence of the violation of the privilege against self-incrimination is found in Wood as follows:
“The matter may be tested as follows. It would seem beyond question that in the testimonial stage of trial the court, of its own motion or at the prosecutor’s instance, could not call the defendant to the witness stand and compel him to answer directly or indirectly the question, ‘Are you guilty or not guilty?’ Regardless of the nature of the answer, the court would have no right to confront him with such an inquiry. His privilege is to be free from being compelled to testify in his own case. It is to have no pressure from judicial power to speak his own guilt or innocence. The court could not force him to speak as a witness from the box. Yet in a roundabout way this would happen if the plea could be admitted in evidence. The only, but insubstantial, difference would be that inquisition would take place before the testimonial stage, and the product would be brought into it in the guise of admitting ‘evidence voluntarily given.’ We do not think the court can use its power to elicit the plea at one stage for one purpose and then abuse it by admitting the plea as ‘evidence’ at another and for an entirely different purpose. To do this would be the most subtle form of judicial inquisition. It would accomplish indirectly but substantially the very thing the privilege prohibits. «
“The objection is not merely to abuse of the function of the plea. It is to impairment of the court’s integrity. Admitting the plea would array it on the prosecution’s side as an agency for procuring, as well as for admitting evidence. No admonition could wipe out the solemnity or verity added from being made in court and induced by the court’s own inquiry. In effect the court would become, at the stage of arraignment, an aid of the prosecution. In admitting the plea it would sit in judgment on its own action in procuring it. These evils would not arise if the plea could not be used as evidence.” 128 F.2d 265, 274.
It seems clear to me that the reasoning in Wood applies and should be adopted by this Court. Therefore I would reverse the judgment and remand the cause for new trial.
NOTE: Judge HENRY S. STEVENS having requested that he be relieved from consideration of this matter, Judge JACK G. MARKS was called to sit in his stead and participate in the determination of this decision.
. “No person shall be compelled in any criminal case to give evidence against himself, * * *."
. “No person * * * shall be compelled in any criminal case to be a witness against himself, * * *."
. Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), rehearing denied, 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); State v. Pierson, 102 Ariz. 90, 425 P.2d 115, decided March 15, 1967; State v. Smith, 101 Ariz. 407, 420 P.2d 278 (1966).
. See page 340, supra, of the Court’s opinion.
. State v. Meyers, 99 Mo. 107, 12 S.W. 516 (1889); People v. Ryan, 82 Cal. 617, 23 P. 121 (1890); Dean v. State, 72 Tex. Cr.R. 274, 161 S.W. 974 (1913); Heim v. United States, 47 App.D.C. 485, L.R.A. 1918E, 87 (1918) ; Heath v. State, 23 Okl.Crim. 382, 214 P. 1091 (1923); Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); State v. Anderson, 173 Minn. 293, 217 N.W. 351 (1927); and State v. Jensen, 74 Utah 299, 279 P. 506 (1929).