(dissenting):
I must respectfully dissent to the decision in the instant case based on the decisions of United States v. Nolan, supra; United States v. Arnold, supra; and Deats v. Rodriguez, supra. While we are bound by the decisions of the United States Supreme Court construing those provisions of the Constitution, made obligatory upon the States by the 14th Amendment, neither the Supreme Court of the United States, nor any Federal Court, has superintending power over the State Courts.
I am in complete accord with the Dissenting Opinion of Circuit Judge Breiten-stein in Johnson v. Patterson, 475 F.2d 1066 (1973), where the defendant, in a state prosecution, testified in his own behalf, as did the defendant in the instant case. In his well reasoned Dissent, Judge Breitenstein stated:
“Believing that the majority opinion throws yet another roadblock to impede the search for truth in the administration of criminal justice, I respectfully dissent. The majority permits a defendant, who by testifying in his own behalf has cast aside the cloak of immunity, to put that coat back on when the cross-examination becomes discomfiting.
“This is a state prisoner habeas corpus in which the district court granted relief. Defendant, who was charged with rape, testified in his own behalf and said that the intercourse was consensual. On cross-examination, and without objection, he said that before trial he had mentioned the consent defense only to his lawyer. In closing argument, and again without objection, the prosecutor referred to the pre-trial silence.
“The majority does not discuss what to me is the crux of the controversy. We *1138have here a conflict between the Fifth Amendment privilege against self-incrimination and the principle that a witness shall testify truthfully. By emphasizing the Fifth Amendment right and glossing over the policy which demands truth of a witness and which regards adversary proceedings as a search for the truth, the majority loses sight of the balance which must be maintained. The effect of the majority decision is to suppress a fact which reasonably bears on credibility and, hence, on truth. As said in Tate v. United States, 109 U.S.App.D.C. 13, 283 F.2d 377, 381, ‘the theory that judicial suppression of truth has a beneficial effect on the administration of justice is unproved and perhaps unprovable.’
“The thrust of the majority opinion is that under the Fifth Amendment a defendant has the right to remain silent. I agree. The difficulty here is that the defendant took the stand and thereby waived his constitutional right. Under the majority opinion there can be a partial waiver of a constitutional right, a premise which I decline to accept.
“The Supreme Court has said, and we have said, that by taking the stand a defendant subjects himself to cross-examination on matters reasonably related to the subject matter of his direct examination. McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 28 L.Ed.2d 711; Sinclair v. Turner, 10 Cir., 447 F.2d 1158, 1165, cert. denied 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590. The majority says nothing about this principle but seemingly relies on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and Tenth Circuit decisions to be mentioned later. The applicability of Miranda is destroyed by Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 28 L.Ed.2d 1, which says that Miranda is not a license for the use of perjury in defense. Griffin is not pertinent because in that case the defendant did not take the stand.
“The case at bar differs from Harris in that there the impeachment was by prior inconsistent statements. Here we have silence. The majority opinion ignores Raffel v. United States, 271 U.S. 494, 497, 46 S.Ct. 566, 568, 70 L.Ed. 1054, which permitted cross-examination on pretrial silence and said that ‘having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.’ Raffel was reexamined, but not overruled, in Grunewald v. United States, 353 U.S. 391, 418, 424, 77 S.Ct. 963, 1 L.Ed.2d 931. In holding that in the circumstances of Grünewald, cross-examination over objection on a pre-trial claim of the Fifth Amendment was improper, the Court did not base its decision on any constitutional right but instead said that it was acting under its supervisory power over the administration of criminal justice. 353 U.S. at 424, 77 S.Ct. 963.
“In the case before us there was no contemporaneous objection either to the cross-examination or to the remark in argument. I say that, in the circumstances presented, to permit the defendant to rearm himself with the constitutional shield is to convert a criminal trial from a search for the truth into a game to be won by the cleverest player. Cf. Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503.
“The action of the Supreme Court in placing its Grünewald decision on its supervisory power is significant. Federal courts have no supervisory power over the administration of criminal justice in state courts. Federal habeas corpus relief is available to a state prisoner when he has been deprived of a right secured to him by the United States Constitution. I do not know what federal constitutional right has been denied the defendant. The only possible reliance can be on the immunity from self-incrimination and *1139that must be based on the acceptance of the idea of a partial waiver. I know of no decision of the Supreme Court which permits a partial waiver of a constitutional right. The approval of such an idea will open a veritable Pandora’s box.
“The majority mentions three Tenth Circuit decisions. The first is United States v. Nolan, 10 Cir., 416 F.2d 588, 593-594, cert. denied 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187. The facts in Nolan are analogous to those in the case at bar except that Nolan was a federal prosecution and here we have a state prosecution. So far as Nolan is concerned it is enough to say that, for the reasons stated in this dissent, I would consign the case to oblivion. The majority quotes from United States v. Arnold, 10 Cir., 425 F.2d 204, 205-206, to the effect that the court will not weigh comparative prejudice. Be that as it may, Arnold is not in point because there the defendant did not take the stand. The exculpatory evidence was introduced through others. United States v. Julian, 10 Cir., 450 F.2d 575, 578-579, permitted cross-examination on silence. The majority says that Julian is inapposite to the instant case because the comment there related to the competence of the defendant. Competence is a mental state; so also is credibility. I am unable to understand why, if testimony as to silence is admissible on competence, it is not also admissible on credibility.
“My position is that when a defendant testifies he may be impeached like any other witness. The use of pre-trial silence for impeachment depends on whether, in the circumstances presented, there is such inconsistency between silence and testimony as to reasonably permit the use of silence for credibility impeachment. In the case at bar the trial court did not exercise the discretion which it has in this area because there was no contemporaneous objection. I believe that the cross-examination was proper for impeachment purposes because common sense teaches that on arrest for forcible rape an accused will claim consent if such be the fact.
“Beyond question, a person has the right to remain silent when arrested, and when accused of a crime. That silence may not be used against him to establish the commission of a crime. The difficulty here is that the defendant did not maintain the silence. Instead, he took the stand in his own defense. When he did so, he subjected himself to pertinent cross-examination. The situation was of his making, not the making of the prosecution. The admission of pre-trial silence was not per se inculpatory.
“In considering the case at bar the Colorado Supreme Court recognized the competition between the protection against self-incrimination and the mandate that a witness shall testify truthfully and held that there was no reversible error. Johnson v. People, 172 Colo. 406, 473 P. 2d 974, 977. Nothing in the federal Constitution requires a contrary holding in this habeas proceeding.
“I would reverse and remand the case with directions to dismiss the habeas petition.”
It is significant to me that Judge Brei-tenstein’s dissenting opinion was cited with approval by Judge Barrett in Deats v. Rodriguez, supra.
It is my belief that should the United States Supreme Court wish to extend the rule enunciated in Grünewald v. United States, supra, as violating the Fifth Amendment of the Constitution of the United States instead of imposing it under its superintending power over federal courts, it should do so in clear and unmistakable language and make that ruling obligatory upon the States.
I would encourage the Attorney General of the State of Oklahoma to appeal to the United States Supreme Court for a clear and definitive ruling on the issue here presented.