The appellant was tried to a jury and convicted of attempted robbery, A.R.S. §§ *589 13-641, 13-108, 13-110 and 13-643, subsec. A, as amended, and unlawful wearing of mask, A.R.S. § 13-981. He was sentenced to imprisonment in the Arizona State Prison for not less than three nor more than five years on each count, the sentences to run concurrently.
On April 14, 1970, at approximately 2:30 a.m., the appellant entered the lobby of the Flamingo Hotel located at 1300 N. Stone Avenue, Tucson, Arizona. Mr. Pulse was on duty as night clerk and was alone in the lobby. Crank had a short conversation with Mr. Pulse relating to car rental. Crank was informed that no one was there at that time for the car rental agency and that it didn’t open until 7 in the morning. Crank then stated, “You rent roоms.” Mr. Pulse responded in the affirmative and Crank then turned around and walked out. Mr. Pulse was suspicious of the appellant because of his demeanor and questions. He walked outside on three occasions to see if he could locate Crank. Pulse, armed with a .22 pistol, was unsuccessful and returned to the hotel.
A short while later, the appellant appeared at the lobby door with a scarf wrapped about his face and a bag wrapped tightly about his right hand. He opened the door, entered and approached the night clerk in a “stalking” manner, not uttering a word. Mr. Pulse thought he was about to be shot, so he fired twice. One bullet struck the appellant and he fell to the flоor.
Mr. Pulse testified that the following took place after the shooting:
“The first thing he said was, ‘Why did you shoot me? I wasn’t going to rob you.’ I hadn’t said anything about him robbing me, in fact I hadn’t said anything to him up to that point except when I walked over toward him I аsked him if he had a buddy outside so then he said, Why did you shoot me? I wasn’t going to rob you.’ I didn’t answer and he said, T am drunk and I am hungry.’ I didn’t answer that. He said, ‘You had a right to shoot me.’ Then I said, What ?’ And he repeated the ‘You had a right to shoot me,’ and then he said — about that time he reached up and pulled down the mask from his eyes.”
At that point, Mr. Pulse was able to identify him as Crank, the person who had entered a few minutes earlier inquiring about the car rental. Mr. Pulse then called the police department and requested an ambulance. The appellant was taken to St. Mary’s Hospital where he remained until May 6, 1969, and was released to the custody of the Pima County Sheriff’s Department where he remained until his trial on Novembеr 25, 1969.
It is first contended that the appellant was deprived of his right to counsel and a speedy trial. In considering these charges, we find that the appellant was first given a preliminary hearing on June 14, 1969, and that he was then unassisted by counsеl. His request that the hearing be reported was refused. At his arraignment in superior court, counsel was appointed and the cause was remanded to justice court for a second preliminary hearing. The appellant was again bound over to superior court for further proceedings which resulted in his conviction from which this appeal is taken. The appellant relies on Coleman v. Alabama,
Appellant was held to answer after the second preliminary hearing on September 25, 1969, and claims for the first time
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on appeal that he was denied his right to a speedy trial guaranteed under Arizona Constitution, Art. 2, Sec. 24, and the Sixth Amendment of the United States Constitution. The right is also protected by Rule 236, Arizona Rules of Criminal Procedure, 17 A.R.S. The superior court minutes indicate that the trial date was set for November 25, 1969, during arraignment on October 7, 1969, when defense counsel was present. The last word from our supreme court on the subject appears to come from State v. Adair,
“Generally the right to a speedy trial is waived unless it is promptly asserted, [citing cases]”
State v. Juarez,
The appellant nеxt contends that statements by the prosecutor in closing argument amounted to a comment on appellant’s constitutional privilege to remain silent. No objection was made to the argument. The privilege against self-inсrimination, protected by the Fifth Amendment, is applicable to the states through the Fourteenth Amendment, and comment by the prosecution on invocation of the privilege is forbidden, Griffin v. State of California,
“It is concededly improper and reversible error to comment on the failure of a defendant to testify in his own behalf, and' the tеst is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.”
Following this guide, we have concluded thаt the argument complained of here is directed principally to the lack of evidence supporting appellant’s position.
Appellant’s complaints are directed to the following portions of argument:
“There isn’t a word spoken. Nothing like I have come to deliver a lower price on my estimate for Mr. Moore, or Lord knows why there is no testimony as to what he is doing there the second time.”
* * * He *
“So Mr. Crank was very much surprised I suppose at what had happened and made those statements none of which explained anything as to why he was there.
There hasn’t been one bit of evidence that come [sic] in here from that stand or from any of these piecеs of evidence which would indicate that Mr. Crank was there about some painting the second time he was there. There isn’t any controverted facts connected with this case which are of any real significance.”
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“Now where did all of this evidence come from about what Mr. Crank was doing? From there? No. From there. Mere speculation on the part of the defense attorney as to what happened.”
*591 Considering the foregoing argument in context, wе have concluded that it is directed to Mr. Pulse’s testimony and the lack of evidence supporting appellant’s theory of the case. The lack of exculpatory statements at the time of the offense is emphasizеd. The argument also appears responsive to defense counsel’s interpretation of the evidence and calculated to remind the jury that defense counsel’s argument was not evidence.
We also note thаt the jury was instructed that, “The evidence in the case consists of the sworn testimony of the witnesses, all exhibits which have been received in evidence and all facts which have been admitted or stipulated.” The jury was further instructed that they were, “to consider only the evidence in the case * * At the request of defense counsel, the instruction was given that “Failure of a defendant to take the witness stand in his own behalf cannot in any manner prejudice him or be in any wisе considered by you at arriving at a verdict in this case. In other words, it is the duty of the State of Arizona to prove the guilt of this defendant the same as any other person charged with a crime and when a person charged with a crimе does not take the witness stand then the jury cannot and must not consider that as against the defendant in arriving at a verdict.”
The final argument complained of is the last sentence in the prosecutor’s closing argument where he statеd:
“And I suggest that the weight of the evidence has crashed down on Mr. Crank because there isn’t any evidence any other way except — not from the stand but from that table and that is not enough.”
Although this statement may appear to be close to the line, we do not construe it to be an improper comment on defendant’s failure to take the stand in view of the lack of objection, the court’s instructions previously adverted to, and the insignificance of thе statement. State v. Burrell,
It is finally contended that prejudicial error was committed in permitting the state’s witness to rеad to the jury from the police report over hearsay objection. The trial judge explained that the “* * * reason for * * * allowing portions of Mr. Pulse’s statement to the detective to be read to the jury is that the defense аttorney by his cross examination has injected the issue of whether or not certain statements that were made by Mr. Pulse on the witness stand were recent fabrications or at least inconsistent with his earlier statements concerning the incident. So for that reason I allowed prior consistent statements which were consistent with his testimony at this time to be read to the jury.” Defense counsel had cross examined Mr. Pulse concerning his failure to mention at the preliminаry hearing that the appellant had stated shortly after Mr. Pulse had shot him, that “You had a right to shoot me.” On redirect, the prosecutor pointed out that the defense had raised the issue of Mr. Pulse’s failure to mention that statement during the рreliminary hearing.
“A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact.” Wigmore on Evidence, Vol. 111A, § 1042 at 1056.
Therefore, Mr. Pulse had, in effect, been impeached by self-contradiction. The use of prior consistent statements is proper for rehabilitation where an issue of recently contrived testimony is injected. State v. Murley,
Appellant takes the position that State v. Lane,
Affirmed.