(dissenting).
I respectfully dissent, because this defendant, in my judgment, has not had a fair trial in two respects: (1) he was not permitted to use the police reports to show that William Butler told a different story to the detectives than he did at the trial and (2) despite the trial court’s order that the police reports be delivered to the court for determination whether there was a *831prior inconsistent statement made by the witness Butler, this was not done, with the result that not until an order was issued by this court to produce the police reports for use of counsel in briefing the appeal did it come to light that the police had a complete statement of William Butler (according to their records), which was not produced at trial.
The testimony of William Butler was vital to the state’s case. Had the defense been able to impeach Butler it could well have made the difference between conviction and acquittal of defendant, a recently returned Vietnam veteran, married, with three children and no prior convictions. If it had been proved Butler made the statements testified to by Detective Hum-mert at the coroner’s inquest1 or the statement contained in the police report, exhibit Alpha, the jury might reasonably have interpreted them to mean that all events, commencing with the fight and up to the firing of the gun, occurred in rapid succession and all occurred inside the tavern, that the gun fired while Butler was in the process of ejecting defendant and his companions, that defendant did not go to a car after he was ejected and return at a later time and fire the shot. It would have had a material bearing on the determination by the jury of the issues of whether defendant intentionally fired the fatal shot, the extent and degree of premeditation, and whether the defendant’s defense of accidental homicide should be accepted. The purported statements by Butler are more consistent, in many respects, with defendant’s own testimony than is Butler’s testimony at the trial.
In State v. Aubuchon (Mo.Sup.) 381 S.W.2d 807, 814, it is held that “. . . [I]f there is a satisfactory showing that a report or statement of a witness in the hands of the State is of such nature that without it, the defendant’s trial would be fundamentally unfair, then it should be produced . . .” This principle is sufficient to justify the reversal and remand of the case at bar.
My convictions are strengthened by what happened on appeal. On March 5, 1970, Division One of this court sustained defendant’s counsel’s motion that the court obtain exhibits Alpha and Beta2 and the remaining portions of the police report. Pursuant to that order, exhibits Alpha and Beta were filed here, along with a third document, now marked defendant’s exhibit 7, which defense counsel stated was turned over to them by the circuit attorney’s office.3
Exhibit 7 is a supplementary five-page police report. It is dated September 3, 1968, the date of the homicide, and sets forth in detail the investigation made by Detectives Troupe and Roche from the time *832they were first notified of the shooting until the early hours of the following day. On page three of exhibit 7 appears this statement: “Acting on information furnished by William Butler, complete statement of Butler is hereto attached, that the subject responsible for the shooting of Terroll Moss resided at 4714 Moffit, Sgt. Troupe and detective Roche proceeded to said address” (emphasis supplied).
While exhibit 7 was not before the trial court, it confirms what was fairly established in the trial of the case: that there is, or at least was at one time, a Butler statement, or statements, taken by a representative of the police department. Likewise, it is clear that Captain Valenti and Detective Hummert had access to the Butler statement and that they did not invent what they attributed to Butler in their own reports. From this we can further conclude the Butler statement referred to in exhibit 7 would have been of great moment to defendant in his defense had it been made available to his counsel at the trial.
As said in Ridge v. Manker (CCA8) 132 F. 599, 601, “An appellate court may avail itself of authentic evidence outside of the record before it of matters occurring since the decree of the trial court when such course is necessary to prevent a miscarriage of justice, to avoid a useless circuity of proceeding . . . ”
In Caldwell v. Modern Woodmen of America, 90 Kan. 175, 133 P. 843, 844, the appellate court considered evidence presented to it that the plaintiff’s husband was actually alive, not dead, in her suit to collect on an insurance policy on his life, saying: “ . . . [Tjhis court may, and in the very unusual situation presented should, in order to prevent a failure of justice, consider the new evidence . . . [A] miscarriage of justice will not be tolerated so long as the court, by the use of such processes, can apply a remedy.” In Curry v. Thompson (Mo.Sup.) 247 S.W.2d 792, 798, this court was presented with a motion filed by the defendant asking the court to consider matters which occurred while the case was on appeal. The court discussed the matter and while declining to consider the after-trial facts presented, indicated its ruling would have been otherwise had the facts been “ . . . of such decisive and conclusive character as to render a different result reasonably certain . . . ”
In my opinion, the situation in the case at bar, with respect to exhibit 7, falls within the principles declared in the three cases cited and is a further ground requiring reversal and remand.
The majority opinion continues our basic approach of treating police reports as sacrosanct. As stated, it took an order of this court to get the police reports for use on appeal. In a recent case, Schleicher v. State, No. 56,508, where the police reports were exhibits in the case, but had not been filed with the record, this court was at first to- ⅛ .he police reports would not be produced unless the expense of a police officer to guard the reports while we inspected them was paid. In another recent case, Warren v. State, Mo., 482 S.W.2d 497, there is evidence that part of a police report was not disclosed, somewhat similar to the present case.
We have permitted the police to be a law unto themselves as to police reports. The above examples which have surfaced show what can then happen. It has been said that “Power tends to corrupt and absolute power corrupts absolutely.” In my opinion, in fairness it is high time we remove access to information favorable to defendants in police reports from being in the absolute control of the police.
. How important the state thought it was that Butler not be impeached is shown by what happenéd when the court was about to permit defense counsel to cross-examine Detective Hummert by reading the answer given by Hummert at the coroner’s inquest. The answer set forth Butler’s statement. The assistant circuit attorney argued that “ . . . this is fatal as far as the State is concerned
. Exhibits Alpha and Beta were all that was produced in the trial court. At first only Alpha was produced. Defense counsel pointed out to the trial court that Alpha was dated seven days after the homicide and was designated as a “supplementary” report, which would indicate that there were prior reports. The state then produced Beta, but that was all.
.The state does not challenge this assertion, although it is aware the exhibit has been on file here over a year and its representatives have participated in the two arguments before this court, in the course of which exhibit 7 was referred to several times. It also is mentioned in appellant’s briefs.
In view of EC 7-13 of Canon 7 of our Code of Professional Responsibility, which declares that the duty of the prosecutor is “ . . . to seek justice, not merely to convict . . . ”, and places on him the duty of making timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, I am confident the failure of the state to contend otherwise means we can safely assume that exhibit 7 is authentic.