(concurring in result).
On February 1, 1968, defendant Clem-mons was ordered committed to St. Joseph *466State Hospital pursuant to Sec. 552.040, RSMo 1959, V.A.M.S., having been acquitted of the crimes of robbery and stealing from the person on a defense of mental disease or defect. The psychiatric report which was the basis of this commitment contained this diagnosis:
“Chronic Schizophrenia Reaction, undifferentiated type, with paranoid features and poor remission.
“The prognosis for Mr. Clemmon’s (sic) recovery from his mental illness is rather guarded, in view of the fact that he apparently has been emotionally ill all of his life
Eleven months later Clemmons was arrested and later found guilty of robbery and kidnapping. A defendant may only be convicted of these crimes if he has sufficient capacity to form the requisite mental intent. Petitioner asserts that as a matter of law he was not capable of committing the crimes of kidnapping and robbery on January 5, 1969, because on that date he was still subject to the commitment order of February 1, 1968.
Under Sec. 552.040, supra, once a defendant is acquitted of a crime on the ground of mental disease or defect, as was defendant, the court is required to order him committed to a state mental hospital. On being committed under this section, a person may not be released until he can establish “ . . . that he does not have and in the reasonable future is not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others or unable to conform his conduct to the requirements of law.”
On these facts, the state in this case is in the position of asserting conflicting propositions. The state is saying in effect, once you have been acquitted on a plea of mental disease or defect, you are presumed mentally deficient; you are automatically committed to a mental hospital without any determination as to present condition; once committed you have the burden of establishing your sanity before you can be released. Having in essence made these statements to Mr. Clemmons on February 1, 1968, the state, just eleven months later, arrests him and proceeds to convict him of a crime committed while he was still subject to a commitment order; a crime which could only have been committed if the defendant had sufficient mental capacity to form the requisite mental intent.
There is case law in Missouri to the effect that, once a defendant is determined to be chronically insane, a presumption of his continued insanity arises, so that the burden of proving that the offense was committed during a lucid interval shifts to the state. State v. Lowe, 93 Mo. 547, 5 S. W. 889 (1887); State v. Hermann, 283 S. W.2d 617 (Mo.1955). For a discussion of the law in this area see, Annot. 27 A.L.R. 2d 121 (1953).
In this case no claim or plea of insanity was made at the January 1969 trial and no evidence was offered. The effect of the prior adjudication of insanity is before us only to the extent that failure of defense counsel to assert this fact constituted ineffective assistance. I doubt if trial counsel was aware of the prior commitment, although he should have learned of it had he made a proper investigation. Even so, in view of the later psychiatric reports indicating absence of mental defect at the time of these offenses, I am inclined to agree with the trial court that counsel’s failure to raise this defense was harmless error. The state may not always find itself in such a comfortable position, however. Had there been no evidence of defendant’s mental capacity in this case, I would view defense counsel’s failure to raise this issue at trial in a very different light.
For this reason I concur in the result of the majority opinion.