(concurring).
I concur in the foregoing opinion, but an examination of the record convinces me that additionally the defendant was denied a fair trial because of the commission of fundamental error, which the writer deems of paramount importance and which should not pass unnoticed.
Twice during the trial hereof there was evidence adduced by the State that the defendant had refused to make a statement to the authorities in connection with this matter. We find the volunteered statement of Deputy Reach in response to a question as to what inquiry he had made of the defendant as to why his left leg was bandaged as follows:
“After I read or recited the Miranda warning to him, he refused to say anything to me.”
Later, in cross-examining the defendant, the county attorney propounded the following question and received the answer as set out hereafter:
“Q. When questioned by the Sheriff’s Office on June 26, 1972, concerning this matter, you refused to make a statement, did you not?
“A. I did.”
Additionally, in pursuing the matter of an alleged homosexual offense in Ft. Collins, I find this inquiry being made of the defendant :
“Q. When asked by the Fort Collins Police Department on November 22, 1968, concerning an alleged homosexual act at or in the Northern Hotel, you refused to furnish a statement, did you not ?”
Under no theory or rule of law which is known to this writer could these matters have been relevant for any purpose and the only effect thereof would have been prejudicial. Not content to let these matters rest, and demonstrating the purpose for which said questions were propounded, we find in the summation by the prosecuting attorney these comments:
“The defendant never went to the police. In fact, when they went to him he refused to give them a statement. He was not interested in cooperating. Why not?”
Apparently believing this necessary of emphasis, later in the argument the following appears:
“Who refused to give the authorities a statement? John Swain? No, the defendant.”
Thus, we are confronted with a clear case wherein defendant’s exercise of a constitutional right under the Fifth Amendment to the United- States Constitution was utilized to penalize him. The chilling effect of such a procedure on the exercise of such a right needs no demonstration. A constitutional guaranty indeed becomes barren and valueless if by the assertion thereof it can *540be utilized to his detriment. The nature of this right and the demonstration of its importance and fundamental character is settled by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1624—1625 (particularly footnote 37), 16 L.Ed.2d 694, 10 A.L.R.3d 974. See also Jones v. State, Fla.App., 200 So. 2d 574, 576. A discussion involving this question appears in State v. Ritson, 210 Kan. 760, 504 P.2d 605, 611:
“There can be no doubt that the interjection of this evidence was error. Its sole purpose was to show that when defendant was confronted with evidence contradicting his alibi he had refused to talk and demanded counsel. It was clearly a use of defendant’s invocation of his constitutional rights to silence and to counsel as substantive evidence of guilt — otherwise it had no probative value as rebuttal of defendant’s story. Such a use is not permissible under Miranda v. Arizona, 384 U.S., 436, f.n. 437, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974; and * * * [Citations],
“The only question here is whether it is harmless error. The error being of constitutional character, it is not harmless if ‘there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ [Citation.] Put another way, to be harmless it must be ‘harmless beyond a reasonable doubt.’ [Citation.] The latter case also holds that this is a constitutionally imposed standard for determining whether error may be deemed harmless.”
Although no objection was made at the time of trial to this argument to the jury, because this was a flagrant violation of a fundamental constitutional right, it is cognizable by this court. This court has heretofore held that it has both a right and duty to decide a cause upon a point not raised below where the matter is fundamental, Steffens v. Smith, Wyo., 477 P.2d 119, 121. This rule was enunciated in a civil matter but to the writer there is a much more compelling reason for its application in a criminal case. This power is recognized in other jurisdictions, State v. Sena, 54 N.M. 213, 219 P.2d 287, 289; Tyler v. State, 74 Okl.Cr. 39, 122 P.2d 826, 827; Morrison v. State, 37 Okl.Cr. 359, 258 P. 1050; Jones v. State, supra.
Because of the impingement of defendant’s constitutional right by examination in violation of the Fifth Amendment to the United States Constitution and Art. 1, § 11, Wyoming Constitution, and the emphasis placed thereon in argument, it is the opinion of this writer that the State has utterly failed in its duty to grant defendant a fundamentally fair trial upon this charge.