(dissenting).
The principal opinion, relying on State v. Berstein, 372 S.W.2d 57 (Mo.1963), and State v. Thompson, 396 S.W.2d 697 (Mo. banc 1965), holds that existing Missouri law requires that we vacate the judgment of conviction of appellant and remand the case for a new trial. I disagree with that conclusion and hence dissent.
In Berstein counsel for defendant sought to interview one Barnes, an alleged accomplice of defendant, who was endorsed on the indictment as a witness and was incarcerated in the city jail. On instructions of the circuit attorney, counsel was not permitted to interview Barnes. Counsel filed a motion to strike Barnes as a witness and prevent him from testifying. The motion was overruled and Barnes testified as the principal witness on whom the state relied to make its case. On appeal this court held that appellant’s counsel was entitled to interview Barnes and that the conviction should be reversed and the case remanded by reason of the refusal to permit that interview.
In this case there was no refusal to permit appellant’s counsel to interview any persons incarcerated in the prison. Counsel actually attempted to talk to Myers, the stabbed victim, but Myers wouldn’t talk to him. Counsel also attempted to talk to Boyer, the other man charged with stabbing Myers, but since Boyer was under indictment, he did not want to talk to appellant’s counsel. He was not prevented by prison authorities or by the state from talking to either of these men.
Appellant gave his counsel a long list of other prospective witnesses but instructed him not to attempt to interview them in advance of the trial. Appellant said it would be better that way because he already knew what they would say. Appellant and his counsel talked to these men at the time of trial before they actually took the witness stand and all of them said exactly what appellant said they would say. The rule in Berstein has no application to what occurred in this case and is not any authority for vacating the judgment of conviction herein.1
In Thompson the defendant had been convicted of killing a police officer after the police had been called to a shopping center to investigate suspicious activity. Police cars pursued an automobile driven by one Sammy Tucker in which the defendant Thompson was a passenger. The car was stopped and one officer approached the driver’s side of the car and was shot and killed by Tucker, who subsequently was convicted therefor. Defendant Thompson was convicted of killing another officer who approached the passenger side of the automobile. Tucker was armed with a German *15pistol and Thompson had a Browning semiautomatic. Both used 9 millimeter shells and both ejected each shell when it was fired.
At his trial on the murder charge, Thompson testified that he never drew his gun from his waistband and never fired his gun. The guns were produced by the state but no shell casings or expended cartridges were produced. Thompson’s attorney asked one of the police officers whether they had found any spent shell casings and he replied that he had not but he did not know whether others had. Subsequently, in argument to the jury, the prosecuting attorney added that he didn’t know why there were no shell casings found and said he supposed it was for the same reason there weren’t any casings found from Tucker’s gun. He remarked that they probably were on someone’s shelf somewhere, and concluded that the state had brought in all the evidence it had.
Subsequently, after his conviction had been affirmed on appeal, Thompson filed ,a post conviction motion under Rule 27.26, alleging numerous grounds for vacating the judgment of conviction, one of which was that the state had suppressed material evidence favorable to him and in oral argument to the jury had argued that no such evidence existed.
At the 27.26 hearing the evidence disclosed that the police had in their possession eight spent 9 millimeter shell cases found at the scene. Five were taken by the police from the Tucker automobile and three were brought in the next day by the father of one of the slain policemen. He had found two of these on one side of the highway and one on the other. All of these shells were sent to the Highway Patrol laboratory for examination. The laboratory returned them with a written report stating that all eight had been fired from the Tucker gun. This report was in possession of the police department and had been seen by the prosecuting attorney, but neither the shells nor report were produced at the trial or disclosed to counsel for appellant. Such evidence would have been some corroboration for Thompson’s testimony that he had not fired his gun. This court, on appeal in the 27.26 proceeding, held that nonproduction of the shells and report, plus the argument to the jury that no shells had been found and that all the evidence had been produced, materially misled the jury and entitled appellant to have the judgment of conviction vacated.
Again, I find nothing in the factual situation we now consider which is anything like that in Thompson. There the state had physical evidence from the scene of the crime which linked the shooting to Tucker’s gun but not to Thompson’s. A written Highway Patrol laboratory report so advised the Cape Girardeau Police Department and through them the prosecuting attorney, yet that evidence was kept secret and the shells were not produced. Instead, the jury was told that there were no such shells. No such occurrences happened in the instant case. Here, the superintendent of the prison sent to the prosecuting attorney a copy of the letter from him to the Deputy Director of Corrections in which he stated: “There is a rumor that a colored inmate came to the rescue of Myers. He is Tommy Nelson Brown, 07976.” A few days later, the superintendent called the prosecuting attorney and reported that “it has already been checked out and Tommy Nelson Brown denied being anywhere near the place.” That is the total of the information which was in the possession of the prosecuting attorney. He testified, understandably, that he promptly dismissed the matter from his mind and later, when appellant’s attorney requested the names of possible eyewitnesses to the stabbing, he made no mention of the rumor about Tommy Nelson Brown.
I submit that this is not a case of suppression of evidence or the names of witnesses. This is not an instance of concealment by the prosecuting attorney. He merely received a report of a rumor and a few days later the same person who advised of the existence of that rumor notified him *16that they had checked and that the rumor was false. If the prosecuting attorney had had any reason to question the correctness of the subsequent report from the superintendent, he no doubt would have followed up and sought to talk to Brown because on the basis of the rumor that Brown came to Myers’ rescue, such testimony would seem to have been helpful to the state. Instead, he took the report of the superintendent at face value and dismissed the matter as a rumor with which he need not ■be concerned and dismissed it from his mind.
Neither is there any real similarity between the argument of the prosecutor in the Thompson case and what the prosecuting attorney said in this case when the factual situations are considered. In Thompson, as mentioned, the argument indicated that no spent shell casings had been found, when in fact the police had eight of them together with a laboratory report linking them to Tucker rather than Thompson. In addition, counsel, when discussing spent shell casings, told the jury that they had produced all of the evidence the state had. In contrast, in this case, counsel’s argument, only a part of which is quoted in the principal opinion, had nothing to do with an alleged fourth person who was at the scene when the stabbing occurred or whether there was in fact some person such as Tommy Nelson Brown. Rather, it related to a witness by the name of Kinder who had testified for the state and apparently had been a very poor witness. In his opening argument to the jury, the prosecuting attorney had this to say:
“Now we get down to poor little Mr. Kinder. I don’t know how to explain Mr. Kinder. The only thing I can say is the State of Missouri owes you gentlemen, and the Court, and owes Mr. Kern absolute pardon and frankness. I wonder what would happen if I had not called Mr. Kinder and then at the time for request for a new trial or prior to that time or anytime five years from now while he is serving his sentence it is discovered that I had withheld an alleged eyewitness from the witness chair, he would have been entitled to a new trial, I would have been guilty of very improper conduct if I had withheld from the witness chair a man who I understood or even remotely believed was an eyewitness to the case. It is absolutely necessary to put on all the testimony and evidence that I have knowledge of and not to withhold any. So Mr. Kinder went on the stand, and Mr. Kinder obviously is another relatively weak personality individual. I don’t doubt the fact that he told Mr. Haynes that he saw another prisoner, another member of this handball clique pick up a knife out of the ground and pass it to Boyer and Kern. I don’t know whether he was telling the truth then or yesterday, obviously he was confused, but he certainly was not confused about the fact that it was Kern and Boyer who was with this third man he did not know out there between the chapel and the gym, and therefore we have at this point, a second eyewitness.”
I submit that the foregoing argument is not at all comparable to what occurred in Thompson and provides no basis for vacating appellant’s judgment of conviction herein.
The principal opinion relies solely on Missouri cases, but appellant’s brief also cites and relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In my judgment, it does not apply to this situation or dictate a vacation of appellant’s judgment of conviction.
In Brady petitioner was charged with murder in the first degree. He testified and admitted participating in the crime but claimed his companion did the actual killing. In summation to the jury, his counsel conceded that he was guilty of murder in the first degree and asked the jury to return a verdict without capital punishment. However, he was sentenced to death.
Prior to trial, Brady’s counsel had requested the prosecution to allow him to examine extrajudicial statements made by petitioner’s companion. Several such state*17ments were shown to him but the one in which the companion admitted the actual killing was withheld. After petitioner’s conviction, counsel learned of that other statement.
On appeal, the Maryland Court of Appeals held that the suppression of the statement denied defendant due process and it remanded the case for a new trial on punishment only since the suppressed evidence could not have reduced the charge below murder in the first degree. That decision was affirmed on certiorari by the Supreme Court of the United States.
Again, in Brady we have actual suppression of physical evidence favorable to the defendant, namely, the statement of Brady’s companion that he had done the killing. That' is completely unlike the mere failure of the prosecutor in this case to report to defense counsel a prison rumor that an inmate came to the rescue of the one stabbed, which rumor subsequently was reported by the superintendent, after inquiry, to be without foundation.
I am apprehensive that a decision and rule which says that a prosecutor must keep track of rumors, especially when subsequently told by the one reporting the rumor that it is groundless and false, and must furnish that information to defense counsel on penalty of having a conviction reversed, imposes a burden on the state and on the prosecuting attorney which is unreasonable and unrealistic. I am not talking about actual concealment or suppression of evidence or witnesses, or about' argument which conceals and misstates and thereby misleads the jury. I concurred in Thompson and still believe that it reaches the proper result. I am convinced, however, that it does not justify imposing a burden on a prosecuting attorney to keep track of and report to the defendant rumors of something, particularly when they are subsequently reported, to be false. I know of no case, state or federal, which places this burden on the prosecuting attorney, nor is it called for in the American Bar Association Standards relating to The Prosecution Function. Standard 3.11 thereof, relating to disclosure of evidence by the prosecutor, reads as follows:
“(a) It is unprofessional conduct for a prosecutor to fail to disclose to the defense at the earliest feasible opportunity evidence which would tend to negate the guilt of the accused or mitigate the degree of the offense or reduce the punishment.
“(b) The prosecutor should comply in good faith with discovery procedures under the applicable law.
“(c) It is unprofessional conduct for a prosecutor intentionally to avoid pursuit of evidence because he believes it will damage the prosecution’s case or aid the accused.”
This standard, I submit, does not impose a duty on the prosecutor to disclose false or unsubstantiated rumors on penalty of having a conviction reversed.
Finally, the trial court made extensive findings and conclusions in a memorandum which he filed. He found the facts to be such as to support his conclusion that neither the prosecuting attorney nor prison personnel suppressed or concealed evidence or witnesses and he specifically found that Tommy Nelson Brown did not inform Assistant Superintendent Baldwin or any other prison official that he witnessed the stabbing and that appellant was not the assailant. Those findings and conclusions are not clearly erroneous.
For the foregoing reasons, I dissent.
. As mentioned in the principal opinion, counsel for appellant had a writ of habeas corpus ad testificandum ordered for Joseph Brown, for the purpose of attempting to show by him, as well as other inmates, that appellant was on the handball court at the time of the stabbing. The Joseph Brown intended was the one also known as Tommy Nelson Brown, but the subpoena did not so indicate and the wrong Joseph Brown was produced. Appellant did not complain to the court nor ask for time to get the intended Joseph Brown. The record in the case is ample to show that prison authorities acted in good faith and did not seek to prevent appellant from obtaining the witness intended.