(specially concurring).
I agree that the judgment of conviction entered against defendant should be affirmed. This conclusion is reached notwithstanding my belief there was error committed in the State’s case in chief in the court’s admission in evidence of testimony relative to defendant’s previous claim of privilege against self-incrimination. It is understandable that the average citizen might find the invoking of this privilege in a court proceeding both distasteful and offensive to his sense of propriety. Nevertheless, experience over the ages has shown there is sound reason be*7hind the “fifth amendment”. For the reasons hereinafter stated and upon the basis of authority cited, I am writing this separate opinion for the sole purpose of registering my disapproval of what I consider a “whittling away” or abridgment of a constitutional privilege by the majority opinion.
In the instant case the evidence of guilt was so overwhelming that — independent of this error — defendant was impelled to take the witness stand and tell his version of the affair if he hoped to escape conviction. Therefore, when he voluntarily testified, this privilege against self-incrimination was effectually waived and the previous reference to his failure to testify at the civil hearing became wholly innocuous.
Specifically, I disagree with that portion of the majority’s opinion wherein it is stated that the protection afforded a defendant in section 13-163, subd. B, A.R.S., is “ * * * plainly limited to the trial in which he fails to be a witness.” The following statement by Wigmore concerning the rule forbidding drawing inferences from the claim of the privilege against self-incrimination generally states what I believe to be the law:
“The rule also forbids drawing an inference, during the trial, from the accused’s prior failure to testify at a preliminary or other prior examination; unless where he has now waived the privilege by voluntarily taking the stand.” Wigmore on Evidence, Vol. VIII, 3rd Ed., § 2272, p. 418. .
I interpret the words "preliminary or other prior examination” to mean the rule is applicable to any prior court proceeding, and the cases cited by Wigmore bear out such interpretation.
It should be noted that we are not now concerned with defendant’s right to assert, or the correctness of the court’s allowance of, the privilege in the civil hearing, nor with how such claim arose; it is necessary only that the record show in fact it was claimed in a prior court proceeding. We should not now rely on the voluntary nature of defendant’s acts in the prior proceeding, for the only issue properly before us is whether the introduction of evidence by the State in this action, showing prior claim of privilege against self-incrimination, violated Article 2, section 10, of the Arizona Constitution and section 13-163, subd. B, supra.
It appears to me that undue stress is also placed by the majority on that portion of section 13-163, subd. B, supra, which states the refusal to be a witness shall not be used against one on “ * * the trial or proceedings.” While Article 710, Vernon’s Annotated Code of Criminal Procedure of the State of Texas, states that one’s failure to testify shall not be “ * * * commented on by counsel in the cause * * * ”, no limitation is derived from the use of article “the” in re*8ported decisions of that State. In Hare v. State, 56 Tex.Cr.R. 6, 118 S.W. 544, 545, 133 Am.St.Rep. 950, the court held that it was reversible error to permit the prosecution’s question directed to an accused’s failure to testify in a former trial. A like interpretation of our statute is necessary, especially in view of additional words therein, namely, that such refusal “ * * * shall not in any manner prejudice him * *
Generally, the problem is this: does reference in a defendant’s later trial to his prior claim of privilege against self-incrimination result in a denial of his constitutional and statutory rights? The following observation of the Supreme Court of Tennessee in a similar situation most persuasively forces the conclusion that it can be such a denial:
“To hold otherwise would be to put on a defendant the hazard of foreseeing in the earlier trial the effect in a subsequent trial of such failure [to take the stand] ; whereas the policy of the statute is to protect him in the trial in which he is first put to his election, as well as in a later trial.” Smithson v. State, 127 Tenn. 357, 155 S.W. 133, 135.
See also, Parrott v. State, 125 Tenn. 1, 139 S.W. 1056, 35 L.R.A.,N.S., 1073. Equally pertinent is the following language in State v. Bailey, 54 Iowa 514, 6 N.W. 589, 590:
“It would indeed be strange if the law should confer upop a witness this right as a privilege, a,nd at the same time should permit the fact of his availing himself of it to be shown as a circumstance against him. It certainly is a privilege of very doubtful character if the effect of claiming it is as prejudicial to the witness as the effect of waiving it." (Emphasis supplied).
A like conclusion was reached in Loewenherz v. Merchants’ & Mechanics’ Bank, 144 Ga. 556, 87 S.E. 778, 780. Sheer logic, without such respectable authority, should impel the same conclusion. In this case I believe it amounts to nothing less than a judicial fiat to construe the privilege as has the majority opinion, particularly when authority for such a construction is not cited, doubtless because none is to be found in states having comparable constitutional and statutory provisions.
In Garcia v. State, 35 Ariz. 35, 274 P. 166, we held that one may waive the privilege against self-incrimination. As is indicated in the majority opinion, many courts which have wrestled with the problem have held that by taking the stand a defendant waives the privilege and any protection from comment thereon. See Wigmore, supra. When defendant Marsin voluntarily took the stand, he effected a waiver of the privilege not only as to this trial but as to the former proceeding as well. At that point, and not before, *9did his previous refusal become relevant and admissible, and then only for the purpose of impeachment. See, Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054; Commonwealth v. Smith, 163 Mass. 411, 40 N.E. 189, 196; People v. Prevost, 219 Mich. 233, 189 N.W. 92.
The above authorities clearly indicate the prosecutor should not be permitted to introduce evidence of the prior refusal to testify until after defendant takes the stand; this salutary rule was not followed in this case. However, in my opinion there is no reversible error in such irregularity here, for defendant did voluntarily take the stand subsequently and, hence, waived the benefit of the rule.