dissenting.
I dissent. I think the passage of eight and one-half years from the time of the alleged crime and arrest to the time of the first trial was presumptively prejudicial to defendant and in violation of his right to a speedy trial. I would reverse and remand for further proceedings upon the motion for discharge, and I would place upon the state the burden of showing that the defendant suffered no intolerable disadvantage for the delay. See Williams v. United States, 102 U.S.App.D.C. 51, 53, 250 F.2d 19, 21 (1957). Here are my reasons:
Eight and one-half years passed from the time of the assumed crime, followed immediately by defendant’s arrest, until the trial which resulted in his conviction. Such an extraordinary interval raises inevitably the speedy trial question and entitles it to the closest examination.
The right to a speedy trial is vouchsafed to the defendant by Article I, Section 18(a) of the Missouri Constitution of 1945. It is also one of those fundamental rights imposed upon the states by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967).
The fundamental interests served by these constitutional provisions have been discussed by the Supreme Court of the United States in the case of Barker v. Wingo, 407 U.S. 514, 519-522, 92 S.Ct. 2182, 2186-2188, 33 L.Ed.2d 101, 110-112 (1972). The reader is referred to that opinion for amplification of the philosophy of the speedy trial requirement and I will resist the temptation to quote from it at length. The opinion points out that it is not only the obvious interests of the defendant which are served by a reasonably prompt trial of criminal charges. Society also has an interest which exists “separate from, and sometimes in opposition to” the interests of the accused.
In discussing criteria for permissible and impermissible delay in trial, the supreme court observed that some courts had held that a defendant waived a right to a speedy trial by failing to demand same, and that other courts and legislatures had prescribed a certain time period within which the defendant must be offered a trial. The opinion proceeds (407 U.S. at 529-530, 92 S.Ct. at 2191-2192, 33 L.Ed.2d at 116, 117):
“We . . . reject both of the inflexible approaches — the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed fundamental. The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.
*778“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”
Now to the case before us:
The charge-to-trial period is divided as follows:
3 months — In jail pending preliminary hearing. Two mental examinations conducted.
27 months — In state hospital pending preliminary hearing as incompetent to stand trial.
2 months — In jail and in state hospital from preliminary hearing to judgment of acquittal and commitment to state hospital (January 11, 1971).
62 months — In Fulton State Hospital under January 11, 1971 judgment, until discharge on habeas corpus.
7 months — In jail awaiting trial.
The five periods total eight and one-half years, during all of which defendant was incarcerated, either in jail or in the state hospital.1
The greater part of the delay is accounted for by two periods of confinement in the state hospital — the first of twenty-seven months because incompetent to stand trial, and the second of five years and two months under the abortive judgment of acquittal and hospital commitment.
The earlier hospital confinement of twenty-seven months is to be weighed differently from the later confinement. If the case was in abeyance during this period there was at least a trial in prospect. It languished but it was not dead. It was likely under occasional review by prosecutor, by defense counsel and by the court. For this reason the time should be weighed less heavily against the state than the time during the second period, but it should not be excluded from consideration.
Delay because of the incompetency of an accused to stand trial may sometimes reach a point when a case ought to be dismissed. Williams v. U. S., 102 U.S.App.D.C. 51, 55, 250 F.2d 19, 23 (1957).2 Aside from the constitutional issue, our statute recognizes that eventually it may be unjust to resume the prosecution and provides for its dismissal, § 552.020(7), RSMo 1969. (Such time is excluded, however, in applying the statutory 180-day period in which a criminal charge must be tried under our new § 545.-780, RSMo, enacted in 1977).
The second period of sixty-two months, however, should be given greater weight on the side of the motion for discharge. During this period the case was considered by all to be finally disposed of and dead. Neither any prosecutor nor any defense attorney was looking toward a trial of the case. No investigation was proceeding, no evidence being preserved, no discovery in progress. It may be worth noting under the heading of absence of continuity, that the defendant’s first attorney was replaced by another before the acquittal of January 11, 1971. Yet a third attorney represented him in the present trial. A fourth and fifth had represented him on his petitions for release. A number of prosecutors had represented the state. All the defendant’s attorneys acted under court appointment.
The remainder of the eight and one-half year period is accounted for by twelve months in jail in three different segments.
*779Only one part of the whole lapse of time might be considered the “fault” of the state. That was the final seven-month period before the trial, which seems inordinate in the circumstances of this case. During that time one continuance was granted, from a July setting. It was at the state’s request and over the defendant’s objection. Of course, any delay which is intentionally or negligently caused by the state should be weighed more heavily against the state.
No part of the delay can be laid to the defendant, for aught the record shows. Delay attributable to defendant’s fault is to be excluded from consideration upon the speedy trial issue. If delay is purposefully used as a defense tactic it cannot be used also in support of a plea for discharge because of denial of a speedy trial. But in this case there is no hint of that on defendant’s part. The reasons for the delay were (with possible exception-mentioned above) of a “neutral” variety. Barker v. Wingo, supra, 407 U.S. at 534, 92 S.Ct. at 2194, 33 L.Ed.2d at 119.
It might be argued, on the basis of State v. Hadley, 249 S.W.2d 857 (Mo.1952) that the courts were open to the defendant during the sixty-two month period of confinement, and that he could at any time have secured his release from the state hospital and have gotten a trial — the “relief” which he ultimately got. But this is more theoretical than practical. And you might as well argue the state at any time could have had the 1971 acquittal set aside and have put the defendant upon trial. After all, it is ultimately the responsibility of the state to provide a speedy trial, not that of the defendant. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; U. S. v. Sarvis, supra, 173 U.S.App.D.C. at 234, 235 at 1183, 1184.
But regardless of the absence of culpability on the state’s part — and bearing in mind that the defendant also was innocent of blame for the delay — I think the mere passage of time in this case probably has materially diminished the defendant’s ability to establish a defense of mental disease or defect excluding responsibility.
It is quite evident that defendant’s only defense was mental disease or defect barring responsibility. It is also clear that it was a substantial defense. While we have the trial testimony only of Dr. Allison and Dr. Hulstra, I infer that the several doctors who examined defendant in connection with his various petitions for release had found him mentally ill at the time of examination, for his petitions were regularly denied. The magistrate court originally found the defendant mentally incapable of trial, and the preliminary hearing was held only after defendant had been twenty-seven months in a mental hospital. Although the January 11,1971, commitment by the trial court was later determined to be invalid, the prosecuting attorney at the time of that commitment did agree that the defendant was not guilty by reason of mental disease and defect barring responsibility, and the court accordingly acquitted the defendant and committed him to the state hospital. It appears from the record that the state would have been willing before the present trial to accept a plea of not guilty by reason of mental disease or defect, but the defendant would not agree to it. The claim of mental disease or defect was no sham defense.3
A persuasive defense of mental disease excluding responsibility usually must be established by more than psychiatrists’ testimony based upon after-the-fact examinations. Testimony of aberrant behavior and speech over a period of time, gathered usually from friends, family, neighbors, employers and fellow workers, may be pieced together to form a history showing a deranged mind. Such data is useful to the psychiatrist in his diagnosis and it is useful also to the jury in raw form. These bits *780and pieces of information, each in itself of small significance, are more than likely lost over a period of eight and one-half years.
Not all the disadvantage stemming from the delay belongs to the defendant. The state’s task of producing evidence in rebuttal of defendant’s testimony of mental disease or defect is made more difficult, if not impossible. The whole process of investigating defendant’s mental condition as of a date eight and one-half years in the past, at least in the circumstances of this case, becomes a mighty uncertain business.
“When prosecution is delayed because of an accused’s mental incapacity to stand trial, the difficulty of determining whether the accused was mentally responsible at the time of the crime is increased. Passage of time makes proof of any fact more difficult. When the fact at issue is as subtle as a mental state, the difficulty is immeasurably enhanced.” Williams v. U. S., supra, 102 U.S.App.D.C. at 54-55, 250 F.2d at 22, 23.
My treatment of this sixty-two month period is inconsistent with State v. Hadley, supra, where trial took place twenty years after offense and charge. During nearly all that time defendant had been in prison under a sentence based upon a guilty plea which was at length set aside because defendant had not been represented by counsel. The case is distinguishable from this in that there was no insanity defense, calling for a wide-ranging investigation — but I am dubious about the authority of the ease, anyway, since Barker v. Wingo, supra. The case seems to me an anachronism.
Except for Hadley, I have found no case which survived a speedy trial challenge where the first trial occurred anything like eight and one-half years after the offense and charge. Cases such as Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) (eight years from indictment to trial) are not in point for there had been an earlier trial. The earlier trial gave an opportunity for thorough investigation and for the preservation of testimony by means of the record.
. See United States v. Sarvis, 173 U.S.App.D.C. 228, 233, 523 F.2d 1177, 1182 (1975) to the effect that incarceration of defendant pending trial is a factor to be considered on speedy trial issue — and in our case the factor is not mitigated by defendant’s receiving credit for it on his penitentiary sentence!
. In Williams, a seven-year delay, occasioned largely by his mental incompetence to stand trial, was held to entitle defendant to discharge. See also U. S. v. Morgan, 185 U.S.App.D.C. 372, 390-91[12], 567 F.2d 479, 497-98[12] (1977) where in dicta the court seriously questioned whether an effective insanity defense could be presented after six years.
. Defendant was reluctant for the court before the present trial to enter a plea of not guilty by reason of mental disease or defect. “I’d like to get out from under that plea myself,” defendant said, “because that plea was made to me by— without my knowing anything about it, you see . . I feel that this is too much of a plea there.” Defendant’s I.Q. was measured after the killing to be 64 (that of a 10-year-old child). Later it was measured as 88, a dull normal.