(concurring).
This case originally was heard in Division One where an opinion written by Commissioner Welborn was adopted with a dissent by Judge Seiler. Thereafter, it was reargued in Banc.
I concur in the Welborn opinion, but in view of the strong dissent by Judge Seiler on the question of whether there should be a reversal on the basis of ineffective assistance of counsel, plus the very able and strenuous brief and argument on that question by counsel for appellant on this appeal, I have concluded to file this concurring opinion. This question of asserted ineffective assistance of counsel is being raised in many post-conviction proceedings at the present time, and is one which merits, I think, these additional comments.
The test on this question which this court has stated on several occasions is whether counsel’s actions, or lack thereof, have made the trial a farce or mockery of justice. Garton v. State, Mo., 454 S.W.2d 522, 530; Holbert v. State, Mo., 439 S.W.2d 507, 509; Holt v. State, Mo., 433 S.W.2d 265, 267. This is the test which many federal courts, including the Court of Appeals for the 8th Circuit, have adopted. Cardarella v. United States, 8 Cir., 375 F.2d 222, 230, cert. den. 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176; Kress v. United States, 8 Cir., 411 F.2d 16, 22; Borchert v. United States, 9 Cir., 405 F.2d 735, 738, cert. den. 394 U.S. 972, 89 S.Ct. 1466, 22 L.Ed.2d 753; Johnson v. United States, 10 Cir., 380 F.2d 810, 812; cases cited in 17 Mod.Fed.Prac.Dig., Crim.Law, Key 641.13(1).
Stated in this language, the rule perhaps sounds unduly restrictive or harsh by reason of the choice of descriptive terminology. However, I believe that examination of the cases indicates that in most instances the courts, after stating such a test, have sought actually to ascertain whether there has been such failure on the part of the attorney that defendant has not had a fair trial. If he has npt had such a trial, the courts, even though using the farce and mockery terminology, have granted a new trial. Where, however, the court has concluded that under the evidence before it the defendant had a fair trial, then he has not been granted another trial on the basis of lack of effective assistance of counsel. This is true even though the evidence may have shown that counsel might have prepared or handled the case differently or done otherwise, possibly with a better result. After all, the defendant has had a trial with counsel and an appeal to review any asserted errors in that trial unless, of course, he failed to take his appeal. In post-conviction review, he is being given a second opportunity to obtain relief on the basis that in his prior conviction he was deprived of constitutionally guaranteed rights.
I believe that in the principal opinion the court has undertaken to determine whether appellant had a fair trial or whether he was deprived thereof by reason of ineffective assistance of counsel. I join in the conclusion of the principal opinion that in*117effective assistance of counsel so as to entitle appellant to a new trial has not been shown. To use language from Clayton v. United States, 8 Cir., 302 F.2d 30, and Crosswhite v. State, Mo., 426 S.W.2d 67, 70, quoted in the dissenting opinion, I am not “left with a definite and firm conviction that a mistake has been committed” by the conviction of the defendant. In so stating, however, I do not mean to infer that a lawyer for defendant ought not to investigate the case fully, or that I approve of the course followed by counsel in this case wherein he said that he did not interview the state’s witnesses and that it was his customary practice not to do so. Counsel, even when appointed without compensation, should prepare the case fully. He should comply with the canons of professional responsibility of this court, and, I think, should comply with the American Bar Association standards relative to the defense function. However, that is not the question presented to us in this post-conviction proceeding. The question we must determine here is whether, as a result of the conduct of counsel, appellant should be granted a new trial on the basis that he was improperly convicted as a result of not having had a fair trial. In considering this question, I think it will be helpful to examine those things on which the dissenting opinion relies as reasons for granting a new trial.
The dissent starts with the premise that the defendant has been deprived of a proper defense because no lawyer could properly defend a defendant without talking to the state’s witnesses,. and defendant’s counsel did not do that. As pointed out above, I agree that counsel should have done more, but I do not agree that a new trial should be granted merely on the proposition that counsel should have handled the case differently than he did or should have made investigation which he did not make. The question we must decide is whether the defendant was prejudiced as a result of ineffective assistance of counsel.
First, the dissent raises the question of whether witnesses could have been produced to show that deceased did in fact have the long handled shoehorn with which defendant claims to have been threatened by deceased. The opinion mentions several persons, including deceased’s mother, his aunt, his stepbrother, and Donald Cole, and then says ‘any or several of these witnesses might very well have been able to confirm that the deceased did have such a shoehorn.” (Emphasis supplied.) This, I submit, is not a sufficient basis for a reversal. Under our post-conviction rule (Supreme Court Rule 27.26(f), V.A.M.R.), the movant has the burden of establishing that he is entitled to relief, but defendant in this proceeding has offered no proof that any of these persons had any knowledge or would so testify on retrial. Under these circumstances, if we sent the case back for a new trial on the basis of this possibility, there might be no additional evidence whatsoever on the question on retrial. We are left to pure speculation.
Next, the dissent discusses the gun with which deceased was killed arid speculates that if the deceased and a dentist, allegedly also a homosexual, had carried on their activities in deceased’s apartment, “it might well he that the gun actually was in the apartment because the dentist had left it there (as well as his shirts).” (Emphasis supplied.) The opinion then comments that counsel made no effort to interview either the dentist or his sister with reference to this question. However, at the 27.26 hearing there was no showing whatsoever that any such evidence exists or that on retrial such evidence would be available.
The opinion goes on to speculate that the people who lived beneath the deceased’s apartment “may have known whether the dentist had been in the apartment.” (Emphasis supplied.) Again, appellant’s evidence on his post-conviction motion contained nothing to show that those people had any such information and that any evidence so showing would be available in the event of retrial. If the case were reversed and remanded, we have no assurance whatsoever that on retrial there would be any such testimony.
*118Next, the opinion refers to defendant’s testimony that deceased was drinking and was like a madman and comments that no attempt was made by counsel to find out whether the deceased’s cousin, who talked to him by telephone that morning, would corroborate that this was deceased’s condition, nor did he ascertain if the police had tested the deceased’s blood for alcoholic content. Again, there is no evidence in this post-conviction proceeding that deceased’s cousin would testify that deceased had been drinking and was like a madman, nor is there any evidence as to whether the police had tested the deceased’s blood, and there is nothing to show that any such evidence would be available on retrial.
Finally, the opinion refers to the fact that Cole said that some unidentified person came to the apartment in the middle of the night, was admitted by deceased and was taken to another bedroom where he remained when Cole left at 7:15 A.M. The opinion observes that whoever this was might have heard what occurred and that it is worth investigating. However, there is no clue in this proceeding as to who this person was, or how he is to be located, or that he could be located, or has been located, nor is there any showing whatsoever that there would be any testimony of this kind on a rehearing.
The dissent then takes the position that it would be unrealistic to expect the defendant to prove definitely that he would have been acquitted if a proper investigation had been made. I agree. As the dissent says, “No one can say what a jury will do with a case.” However, defendant can undertake to determine whether there is evidence existing which an investigation prior to the original trial would have uncovered, and that such evidence is substantial and such that the defendant was entitled to have it presented to the jury in his trial. In this way, the defendant would show that on a retrial additional evidence would be available and that he has been prejudiced as a result of failure of counsel to investigate and obtain such testimony for use at his original trial.
T do not agree with the conclusion of the dissent that failure of defendant’s original counsel to investigate more than he did is inherently prejudicial so as to entitle appellant automatically to a new trial. In cases such as Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, where constitutionally required counsel had been denied, a new trial was granted merely because counsel was denied, but we are not dealing with that kind of situation. Here defendant was represented by experienced counsel. The trial resulted in an acquittal on the first degree murder charge and a conviction of murder in the second degree. This is not a case of a defendant having no counsel to try his case. Instead, we are seeking to determine whether, on the basis of alleged ineffective assistance of counsel in the preparation and trial of this case (particularly in failure to investigate adequately), the appellant should be granted a new trial. Whether it was prejudicial to him depends on whether there was other evidence which was important and which a proper investigation would have uncovered. In such a situation, I am of the opinion that it is proper to require that movant assume and sustain the burden of demonstrating that on retrial there will be evidence which is substantial and which was not available at the previous trial because of failure of his counsel to properly investigate.1
*119If a retrial is granted and defendant is to derive any real benefit as a result, an investigation such as I have suggested will be necessary prior to the retrial. It is better and more appropriate, I suggest, to require that this occur prior to and in connection with the post-conviction proceeding and prior to granting a new trial, rather than to simply automatically grant a new trial and then have the investigation made.
What I suggest is not requiring that appellant assume an impossible job. It is not forcing appellant to prove that on retrial an acquittal will result. It merely avoids an exercise in futility in requiring a second trial when in fact there is no more evidence and no real basis on which appellant is entitled to a new trial.
. In United States ex rel. Green v. Rundle, 3 Cir., 434 F.2d 1112, one of the cases cited and relied on in the dissent, such harden was placed on the defendant. In that ease the complaint of defendant as to his counsel was a failure to investigate whether an employer's payroll records would substantiate defendant's claim of alibi. The court reversed and remanded the proceeding for further hearing because since the trial court had acted on defendant’s petition the Third Circuit had adopted a normal competency test in lieu of the farce and mockery test. In so holding, the court said, 434 F.2d l. c. 1110: "Tims the case must bo remanded to the district court for a hearing at which appellant shall have the opportunity of *119developing, by the testimony of his employer or by production of the payroll records, that his alibi could in fact have been corroborated. In the absence of such a showing, the writ will be denied.”
I recognize that in Coles v. Peyton, 4 Cir., 389 F.2d 224, also cited in the dissent, the court held that the burden was shifted to the prosecution to show lack of prejudice to defendant resulting from ineffective assistance of counsel. However, there was a strong dissenting opinion which, in my judgment, expressed the sounder viewpoint. It would have required that defendant establish prejudice.