This appeal was heard in Division One of this Court where an opinion was prepared by Welborn, C., however, the cause was transferred to the Court En Banc prior to the adoption of the opinion. The appeal has now been heard by the Court En Banc and the opinion by Welborn, C., in Division One is adopted by the Court En Banc and is set forth below without the use of quotations.
A jury found Anthony Clark guilty of second degree felony murder, committed in the perpetration of sodomy, and of sodomy. The defendant was sentenced to 40 years on the murder count and 10 years for sodomy, the sentences to be served concurrently. The Eastern District of the Court of Appeals affirmed the convictions. The case was thereafter transferred to this Court.
The state’s evidence showed that, on July 21, 1977, the appellant enticed the 10-year-old male victim to an area beneath a viaduct at Lindell and Union Boulevards in St. Louis. There appellant had anal intercourse with the victim, hit him in the head with a rock and buried him under rocks and dirt. The victim died from suffocation.
Appellant’s contention that the conviction for sodomy, the underlying felony in the murder charge, cannot stand must be sustained. State v. Olds, 603 S.W.2d 501, 509-510[12] (Mo. banc 1980). See also State v. Morgan, 612 S.W.2d 1 (Mo. banc 1981).
Appellant’s second assignment of error is based upon the admission into evidence in the state’s case of a toxicology laboratory report of the result of an acid phosphatase test of a rectal swab taken from the victim. The report showed the presence of seminal fluid in the victim’s rectal area. The trial court, over objection based upon nonproduction of the person who conducted the test, admitted the report under The Uniform Business Records As Evidence Law (§§ 490.660 — 490.690, RSMo 1978) as part of the records of the medical examiner’s office.
The complaint that the use of the report denied appellant the right to confront the witness against him as to a material fact on the sodomy charge is obviated by the reversal of the sodomy conviction.
Insofar as the murder count is concerned, appellant’s statement, introduced into evidence, admitted anal intercourse with the victim. The appellant’s trial testimony was that the victim had been killed by others after one of such attackers had “raped” the victim. Thus, the laboratory report, although arguably corroborative of the appellant’s statement, was not inconsistent with appellant’s trial version of the affair. *57Therefore, even if the report should not have been admitted, its use was beyond a reasonable doubt harmless error.
Judgment affirmed as to Count I (murder); reversed as to Count II (sodomy).
WELLIVER, MORGAN and HIGGINS, JJ., concur. RENDLEN, J., concurs in separate concurring opinion filed. BARDGETT, C. J., and DONNELLY, J., dissent in separate dissenting opinions filed. SEILER, J., dissents and concurs in separate dissenting opinion of DONNELLY, J.