(dissenting).
I respectfully dissent from that portion of the principal opinion that holds it was not an abuse of discretion for the trial judge to overrule defendant’s motion to produce a purported statement of witness William Butl-'r which was in the possession of the prose -+or by reason of its being incorpo*833rated into Exhibit Alpha, the same being a Supplementary police report dated September 10, 1968.
The question here is merely whether or not this isolated statement should have been produced. In order to confine this dissent to the particular issue it is pertinent to state that the issue is NOT whether the entire police report should have been produced nor is the issue whether the statement of Butler as contained in the report is admissible in evidence, nor even whether the statement is accurate as to what Butler said to one or more policemen.
The principal opinion sets forth the events that gave rise to the defendant’s motion to produce. Suffice it to say here that the substance of the testimony of Butler at the trial of this case was that a fight occurred in the tavern in which he was tending bar that involved defendant and several others; that Butler broke up the fight and put defendant and others out the door; that defendant left and came back in about a minute or two and at that time Butler was standing in the door holding it half way open with his left hand; that “it had kind of quieted down a little bit and this Terrell Moss, well, he wanted to come back to go out but at the same time Willie Morris was coming back to the door and so when Morris opened the door —” (the outside storm door), “During the time he opened the door and the time that Moss got up, Moss touched me on my left shoulder and when I turned, the pistol went off.” Butler stated that defendant was holding the pistol; that “He shot off one, pulled the trigger again and it snapped the second time” but did not discharge; that the first time that Butler saw the gun was when he was looking at it in front of his face before the shot was fired. On two or more occasions during the testimony of Butler he stated that defendant had left the tavern, a minute or more elapsed before he returned and that it was then that defendant fired the shot that killed Moss.
During the course of the testimony of Detective Hummert the Court ordered the prosecution to produce the statements it had, if any, of witness Butler. The prosecution did produce two police reports (Exhibits Alpha dated September 10, 1968, and Beta dated September 3, 1968), and the Court examined them. Exhibit Alpha contains the following:
“While at the scene, the 6th District Officers interviewed the following named persons:
WILLIAM BUTLER, Negro male, 42 years of age,, residing at 3117 North Taylor, —”
who stated that he works part time as a bartender at Little Caesar’s Lounge, located at 4873 Natural Bridge.
“Continuing, William Butler stated that on Tuesday evening, September 3, 1968, he was tending bar, at which time there was a large crowd of people in the lounge. He stated that he observed two (2) customers arguing near the front door, who then began to struggle with each other. He then left his place at the bar and attempted to push the two subjects out the front door, when some unknown person in the lounge said, ‘Look out, he has a gun.’ At this time, there was a shot fired, and the victim who was standing next to him (Butler) fell forward and staggered out the door.
“William Butler further stated that the subject with the gun pointed the gun into the lounge and attempted to fire it, however it did not go off, and the subject ran from the doorway of the lounge. He also stated that the subject responsible for the shooting was one:
WILLIE MORRIS, negro male, residing at 4714 Maffitt.”
The facts testified to by Butler at trial were descriptive of a situation in which the fight that occurred in the tavern had ended; the defendant had left and thereafter returned with a pistol and shot the deceased at a time when there was no fight going on at all. The facts as reflected in Butler’s purported statement to the police *834are descriptive of a situation in which there was a fight going on and during the course of the fight a gun went off and Moss was killed, and lends itself to the defense of accidental shooting, which was submitted to the jury by Instruction No. 5, whereas the testimony of Butler at trial was completely opposite in that it practically excluded an accidental discharge of the pistol and was descriptive of an intentional shooting.
Thus the facts of this case fall squarely within the holding of this Court in State v. Aubuchon, Mo., 381 S.W.2d 807. There this Court said, 1. c. 814, “We hold now that, if there is a satisfactory showing that a report or statement of a witness in the hands of the State is of such a nature that without it, the defendant’s trial would be fundamentally unfair, then it should be produced; otherwise not. And this decision rests, in the first instance, in the discretion of the trial court; we may later consider, if and when necessary, an abuse of that discretion. If the trial court wishes to examine the document before ruling, it may do so.” The Court went on to say, at 1. c. 815, “Thus, if it be fairly shown that a material prosecuting witness had previously made a statement of facts which completely exonerated the defendant, or which would totally change the degree of a crime, this should be produced.”
In State v. Cannon, Mo., 465 S.W.2d 584, 1. c. 587, the Court quoted portions of the opinion in the Aubuchon case and further said, 1. c. 587, “The criticism recently leveled at Aubuchon is the indication therein (also appearing in many other Missouri cases) that there must be an advance showing that there is an inconsistency between the testimony of a witness and the contents of the police report before the report need be produced. Obviously, it would be difficult to make that showing without examining the report.”
In the instant case the most restrictive interpretation of Aubuchon, supra, has been satisfied. The trial court did order the production of the police reports and examined the contents of Exhibits Alpha and Beta. Mr. Butler was a material witness for the State. The statement attributable to Butler as it appears in Exhibit Alpha is contrary to Butler’s trial testimony, and if the statement that appears in Exhibit Alpha is a correct recitation of what Butler saw take place then the facts as set forth in the statement, if believed by the jury, would not exclude the defense of accident, whereas Butler’s trial testimony is not compatible with the defense of accident. Furthermore, if the facts that appear in the statement are correct, the jury may have found the defendant guilty of the lesser offense of manslaughter.
I reiterate, however, that the issue here is whether the statement should have been produced under the facts of this case, and not whether it could have been successfully used once it had been produced.
In State v. Cannon, supra, the Court held that the defendant was not prejudiced by the nonproduction of the information contained in the police report pertaining to the description of the robber because the report did not contain any description attributable to any particular witness, but was a composite description obtained by combining each descriptive element contributed by each of six witnesses. The Court said, 1. c. 588, “That description would have been of no use to defendant’s counsel in trying to impeach a particular witness because it did not purport to be a description given to the police by any specific witness.” In the instant case the statement found in Exhibit Alpha is not a composite of statements attributable to several witnesses but, to the contrary, it purports to be a description of the occurrence attributable to one particular witness, Mr. Butler, and recorded as such in the police report Alpha. Exhibit Alpha was compiled after the Coroner’s Inquest into the death of Terrell Moss as it refers to the inquest, the appearance of Detectives Roche and Hummert at the inquest and the result. Detective Hummert testified at the inquest *835and there stated that a statement had been obtained by the police from Mr. Butler. A reading of- Detective Hummert’s inquest testimony leaves one with the decided impression that he obtained the statement from Butler. After Detectives Troupe and Roche testified at the trial Detective Hum-mert was called by the State and it was only then that it was learned that Detective Hummert was not the officer who took the statement from Mr. Butler. It is absolutely certain, however, that there was a statement taken from Butler by the police. Exhibit Alpha demonstrates the apparent contradictions that appear as between the trial testimony of Butler and the statement that the police took from him concerning the occurrence.
As pointed out in State v. Cannon, supra, the requirements of State v. Au-buchon, supra, are difficult for the defendant to overcome so as to obtain a statement given to the police by a witness for the State. In the instant case those difficulties were overcome and the stringent requirements of Aubuchon, supra, have been met. The only item sought by the defendant was the statement or statements of one particular witness, not the entire police report. To say that the statement of Butler would not be admissible in evidence as such does not answer the question in this case, for it is the production of the statement that was requested, not its admission into evidence. It would be pure speculation for this Court to say that had the statement been produced that defense counsel would not have recalled certain witnesses, including Mr. Butler, and utilized the statement to show apparent material inconsistencies in Butler’s versions of the occurrence. The term “apparent inconsistencies” is used because, at this point, such merely appear from the face of the statement as compared with the trial testimony of Mr. Butler, and it is not assumed that the account given in the statement is correct, but, like all other statements given by a witness and used in his cross-examination, its validity, and the credibility of the witness, is for the jury to determine. Here, neither the witness Butler nor any police officer has yet had the opportunity to affirm, deny or explain that which appears in the statement. The importance of this matter is demonstrated by making an assumption, but it is only an assumption, and that is that if the facts as reflected by the statement are correct and the trial testimony of Butler is incorrect then defendant had been convicted of second degree murder on the basis of at least incorrect evidence and at worst false testimony. Bringing litigation to a final conclusion is vitally important and consequently it would seem that in view of the desirability of finality it becomes even more important that • a statement, such as here involved, which was available during the decisional process — the trial, be available for use in that trial, particularly where, as here, all of the requirements enunciated by this Court in State v. Aubuchon, supra, have been satisfied. To close off the production of the statement taken from a witness under the facts of this case effectively eliminates cross-examination of the witness based upon apparent material inconsistencies that would appear upon production of the statement. This, in my opinion, renders the trial “fundamentally unfair” under State v. Au-buchon, supra.
Based upon the principles stated in State v. Aubuchon, supra, and reiterated in State v. Cannon, supra, and without going outside the trial court record in this case I would reverse and remand the cause for new trial for the prejudicial error in overruling the defendant’s motion to produce the statement of Butler as it appears in Exhibit Alpha. The failure of the prosecution to produce Exhibit 7, mentioned in the dissent of Judge Seiler, when ordered by the trial court is extremely disconcerting. Nevertheless we need not consider that aspect of this appeal in order to rule this case and remand the cause for a new trial under the existing law of this State.