(dissents):
I must respectfully dissent to this decision for the following reasons.
The opinion of the Court correctly distinguishes the facts of Buchanan v. State, Okl.Cr, 523 P.2d 1134 (1974) from those of the instant case for the reason that there is no violation of the Fifth Amendment privilege against self-incrimination here. Nonetheless, I believe the repeated questions put to defendant’s alibi witness on cross-examination inquiring as to which police officer or which member of the District Attorney’s staff she reported her information were highly improper and highly prejudicial and that the trial judge erred in failing to sustain the defense objection to those questions. Without doubt there are circumstances under which prior silence may amount in effect to an inconsistent *694statement and hence may properly be used to impeach the testimony of a witness. Under other circumstances, however, silence may be so highly ambiguous that it lacks sufficient probative value to be shown as bearing on the credibility of the witness. See, Fowle v. United States, 410 F.2d 48, 50-51 (9th Cir. 1969). In Wig-more on Evidence, 3rd Edition, § 1042(3) that noted authority expresses the rule thus:
“[M]uch depends on the individual ci-cumstances, and in all [cases] the underlying test is, would it have been natural for the person to make the assertion in question ?”
It is my opinion that under our adversary system of criminal justice the failure of an alibi witness to voluntarily notify either a police officer or a member of the District Attorney’s office of the whereabouts of the accused on the date in question is too highly ambiguous to amount to a prior inconsistent statement or inconsistent conduct with which the witness may be impeached. Underhill’s Criminal Evidence Volume 2, 5th Edition, § 443 flatly states that an alibi witness may not be impeached by a prior failure to inform the prosecuting attorney of the alibi:
“A witness called to prove an alibi may be asked when his attention was called to the charge against the accused, and what was the date of the crime. He cannot, however, be asked, in order to impeach him, what he did to inform the prosecuting attorney of the whereabouts of the accused.”
While this statement sweeps too broadly, the better rule appears to be that such a question cannot be put to the witness absent the laying of a proper predicate for such impeachment. In State v. Fletcher, 36 N.M. 47, 7 P.2d 936 (1932) that court stated:
“But, before the omission to make a claimed important disclosure on a prior occasion may properly have this effect, [impairing the credibility of a witness] a situation calling or furnishing the opportunity for such disclosure, or imposing the duty to make it, must have been shown to exist. Accordingly, the cross-examiner, before putting the impeaching question, must by his cross-examination at least make a prima facie showing as to time, place, and circumstance of the omission, on the prior occasion, sufficient to warrant the inference that the opportunity for disclosure and the duty to disclose existed.” Id. at 938.
No such showing was made here. Under these circumstances, the witness’ silence was not contradictory of her testimony at trial.
Similar tactics were used in the cross-examination of Detective Harrison who testified for the defense that Mr. Hunt, the Safeway Store employee, was unable to make a positive identification of the defendant during the lineup until after he had been shown a pearl handled pistol which had been taken from the automobile of defendant’s wife. It is my opinion that that cross-examination also exceeded the bounds of propriety. In the cross-examination of both these defense witnesses the implication was clear that had they been telling the truth they would have early reported their information to the District Attorney and that if they had done that, the case against this defendant would have been dismissed. To that extent the prosecutor’s conduct here is similar to the conduct disapproved in Dupree v. State, Okl.Cr., 514 P.2d 425, 427 (1973) in which the prosecutor made a similar implication during the course of his closing argument in an attempt to discredit the defendant’s alibi witness.
Further, while it is true as the majority states that, “The right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide,” it is my opinion that the argument in this case exceeded that wide range. It is replete with improper remarks, among them a blatant appeal to the jury to ignore the instruction of the *695court that they not allow sympathy or prejudice to enter into their deliberation :
“Ladies and gentlemen of the jury, while you’re thinking about letting Mr. Glover go because the State has not proved its case, while you’re thinking about that, you think about Mrs. Minugh, Mr. Bruf-fett and Mr. Hunt. You think about how they felt and the intimidation they went through out — (Tr. 536)
“And while, ladies and gentlemen, you’re thinking about letting Alex Glover go — not only the intimidation that the witnesses went through down here on the floor with his gun, but the intimidation they have to go through when they take the witness stand, I’m surprised that a lot of them even report their robberies. So if you want to discount all of this, let Mr. Glover go. (Tr. 537)
“So when you’re feeling sorry for Mr. Glover and you’re saying, let me go, don’t send me down to the penitentiary to live in a cage like an animal, well, think about the little people laying on the floor like an animal with their faces down.” (Tr. 538)
It should be noted that this argument is very similar to that disapproved in Dupree v. State, Okl.Cr., 514 P.2d 425, 427 (1973), which case was reversed because of accumulation of prosecutorial misconduct. Also, although this case did not involve a shooting, the prosecutor referred on three separate occasions to finding a victim with a bullet through his head. (Tr. 531, 532) See, Lewis v. State, Okl.Cr., 493 P.2d 91 (1971), Holcomb v. State, 95 Okl.Cr. 55, 239 P.2d 806 (1952), in which cases similar comments were disapproved. Throughout the argument the prosecutor bolstered his powers of verbal persuasion by pointing the handgun introduced into evidence at the jury. (Tr. 491, 493, 533) On page 497 the transcript of the arguments reveals that the prosecutor informed the jury that his office declines cases if there is any doubt.
The conduct of the prosecutor increases in significance here because the case which the State built against Alex Glover, Jr., rests upon the shakiest of foundations. The first eyewitness, Douglas Bruffett, testified that he was unable to make any identification of the man accused of the robbery which he observed. The second eyewitness, Carlene Minugh, admitted on cross-examination that she was unable to make a positive identification of the defendant as the man who committed the robbery. (Tr. 148, 149) She also testified that she had been shown the gun in question during the course of the lineup after she was unable to make a positive identification. Of the identification made by the third eyewitness, Jerry Hunt, Officer Harold J. Harrison, a Tulsa Police Officer of 18 years’ experience, testified that Hunt was unable to make a positive identification after viewing the men in the lineup and did so only after being shown the gun which had been taken from the car belonging to this defendant’s wife. Concerning the testimony of Doris Monday, the cellmate who testified that he had overheard the defendant admit his participation in the robbery to Mr. Bagsby, E. Terril Corley, a Tulsa public defender, and Allen Small-wood, a law student working with that office, testified during the motion for a new trial in this case that they had spoken to Mr. Monday on another matter and that he had told them that someone from the District Attorney’s Office had told him what his testimony should be in the Glover case.
I do not believe that justice has been served in this case, and upon the authority of Dupree v. State, supra, I would reverse and remand for a new trial.