dissenting.
I respectfully dissent.
Section 552.020.9 provides no statement made by the accused in the course of any examination or treatment pursuant to this section and no information received by any physician or other person in the course thereof, whether such examination or treatment was made with or without the consent of the accused or upon his motion or upon that of others, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding then or thereafter pending in any court, state or federal. The examination required under § 552.020 is the examination with reference to whether or not the accused lacks the mental capacity to stand trial. However, even though that may be the original purpose of the motion for an examination or the judge’s order ordering examination, nevertheless subsection (3) requires that the report of that psychiatric examination include, inter alia, an opinion as to whether the accused has a mental disease or defect, and the duration thereof; an opinion as to whether the accused as a result of the mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense; and (4) requires an opinion as to whether at the time of the alleged criminal conduct the accused as a result of mental disease or defect did not know or appreciate the nature, quality or wrongfulness of his conduct or as a result of mental disease or defect was incapable of conforming his conduct to the requirements of law. It is seen, *820therefore, that the statement in the principal opinion that an examination with reference to whether the defendant is not guilty by reason of mental disease or defect— an .030 examination — is ordered only if the defense of not guilty by reason of mental disease or defect is asserted is really not significant because both examinations are the same. The mental examination conducted for whatever reason, including an .020 primary reason, requires that the report give an opinion with respect to the inquiry that might be made under .030— whether he has a mental defect or disease excluding responsibility. The purpose of that is to let one examination suffice. Both are mental examinations, and the purpose of the .020 examination includes the purpose for the .030 examination. That becomes apparent from § 552.030.4 where it is stated:
“If an examination provided in 552.020 was made and the report thereof included an opinion whether at the time of the alleged criminal conduct the accused, as a result of mental disease or defect, did not know or appreciate the nature, quality or wrongfulness of his conduct or as a result of mental disease or defect was incapable of conforming his conduct to the requirements of law, such report may be received in evidence, and no new examination shall be required by the court unless, in the discretion of the court, another examination is necessary....”
In the instant case the examination was requested under § 552.020.2 but it included as part of the doctor’s opinion more than an opinion with respect to whether or not defendant was mentally capable of standing trial. Even if the examination had been requested under .030, the report would have to have conformed to the requirements of 552.020, subsection 3, part of which has been set forth above.
Section 552.030.6 provides:
“No statement made by the accused in the course of any such examination and no information received by any physician or other person in the course thereof, whether such examination was made with or without the consent of the accused or upon his motion or upon that of others, shall be admitted in evidence against the accused on the issue of whether he committed the act charged against him in any criminal proceeding then or thereafter pending in any court, state or federal. The statement or information shall be admissible in evidence for or against him only on the issue of his mental condition, whether or not it would otherwise be deemed to be a privileged communication. If the statement or information is admitted for or against the accused on the issue of his mental condition, the court shall both orally or at the time of its admission and later by instruction inform the jury that it must not consider such statement or information as any evidence of whether the accused committed the act charged against him.” (Emphasis supplied.)
The prohibition of the subsection quoted immediately above and the requirement with respect to the court’s instruction to the jury, both at the time the evidence is admitted, whether “for or against the accused”, as well as at the close of the trial with respect to the instruction, is mandatory and applies to testimony by the physician who made the examination that was requested under either .020 or .030. There is simply no distinction made and none would be tenable.
MAI-CR 2.36 is required to be given whether requested or not. The instruction is required by the court because it is mandated by § 552.030.6, supra.
Although the sequence set forth in the principal opinion on pages four and five with reference to when a mental examination is done with respect to a plea of not guilty by reason of mental disease or defect — after the plea and only if the state refuses to accept the plea — may appear on the face of the statute, nevertheless that is not the way it operates. If a defendant pleads not guilty by reason of mental defect, one can be certain that the prosecutor is not going to accept that plea unless he is persuaded that the defendant actually has a *821mental defect that serious. In practical operation the examination is ordered upon the filing of the plea and thereafter the prosecutor will determine whether or not he is willing to accept the plea of not guilty by reason of mental disease or defect. The requirement for the limiting instruction, although found in § 552.030.6, is not restricted to the examination motivated by a plea of not guilty by reason of mental disease or defect. The prohibitions and requirements of § 552.030.6 come into play whenever testimony is given arising out of a mental examination ordered or obtained under Chapter 552 regardless of whether it is § 552.020 or § 552.030.
Section 52.030.3, mentioned in the principal opinion, addresses partial responsibility or diminished capacity and, provides in part:
“3. Evidence that the defendant did or did not suffer from a mental disease or defect shall be admissible
“(1) To prove that the defendant did or did not have a state of mind which is an element of the offense; or .... ”
It is to be immediately noted that the examination provided under § 552.020 requires, as one of the findings in the report, an opinion by the doctor as' to whether the accused “has a mental disease or defect, * * *” that is put in the present tense and is not restricted to a mental disease or defect excluding responsibility nor is it restricted to a mental disease or defect rendering the defendant incapable of understanding the proceedings against him. It is simply whether or not the accused has a “mental disease or defect.” It seems clear to me again that one simply cannot decide whether the prohibitions under and requirements of § 552.030.6 are applicable by trying to decide what the primary purpose of the examination was in the first place. In any event, however, the diminished mental responsibility as provided for by § 552.030.3, supra, and the evidence provided for by subsection 6 of that same section, when it refers to any such examination, at least refers to an examination permitted by § 552.020 or § 552.030.
In this ease, since the defendant had an examination under § 552.020 he was not entitled as a matter of right to another examination under § 552.030 even if he had requested it. See § 552.030.4.
The prohibition found in § 552.030.6, and the limiting instruction (MAI-CR 2.36) do not require that the jury be told that the testimony of the physician may not be considered by them on the issue of “guilt.” It does require that the jury be advised that no statement made by the accused and no information received by physician in the course of the examination shall be admitted in evidence against the accused on the issue of whether he committed the act charged against him in any criminal proceeding. That is the substance also of MAI-CR 2.36.
In my opinion it is also incorrect to suggest that when a defendant seeks to avail himself of psychiatric evidence that he did not have a state of mind which is the element of the offense that there is any admission on the part of the defendant that he is guilty of something. It is quite common for the defendant to plead not guilty and not guilty by reason of mental disease or defect. While they may sound inconsistent, they nevertheless simply function so as to leave the burden of proof on the state to prove the defendant guilty beyond a reasonable doubt in other respects.
The reason the defendant is entitled to the limiting instruction in this case is because the statute requires the judge to give it both at the time the evidence is introduced and at the conclusion of the trial, and the court requires that MAI-CR 2.36 be given, pursuant to the statute, whether requested or not.
This is simply a case where the judge was not aware of the statute or the requirement of the instruction and neither was the prosecutor or the defense attorney. While it may be argued that the defense attorney might have known it and did not bring it up for the purpose of injecting error into the case, that is not indicated in the record here. In my opinion the principal opinion in this case will simply provoke confusion in the trial cases and probably bring about a *822number of reversals of convictions whenever the trial judge undertakes to decide whether or not he must give the limiting instruction spoken of in this opinion. The long and the short of it is that the statute requires that it be given and the requirement that it be given does not depend upon the purpose for which the mental examination was made, nor is it dispensed with just because the defendant pleads a diminished mental capacity as permitted by § 552.030.-3(1).
There is nothing in Chapter 552 to indicate that the limiting instruction required by § 552.030.6 is not applicable when the defendant seeks to introduce the evidence on a diminished mental capacity basis, as here, which is authorized by § 552.030.3(1). To the contrary, the unequivocal and all inclusive language of § 552.030.6 mandating the limiting instruction as to testimony of the doctor based upon this type examination admits of no exceptions. The instruction is not conditioned upon the nature of the defense but rather upon the source of the information. If the source was an .020 or .030 examination and the testimony is given at trial on mental condition, then that evidence is limited in its admissibility to the issue of mental condition and cannot be used as evidence of whether or not he did the act charged against him.
This defendant did not admit to any “guilt.” He plead not guilty. Offering evidence of diminished mental capacity does not imply an admission of guilt of a lesser offense. It is simply evidence of a lack of a state of mind which is an element of the offense and does not presuppose guilt of any kind.
We must recognize that the state has the right to introduce evidence of mental capacity to show no diminished mental capacity and that evidence may be offered by the state and consist of the doctor’s testimony who performed one of the .020 or .030 examinations. The principal opinion would, I take it, allow that evidence also without the limiting instruction if the evidence only went to diminished mental capacity.
The statutory requirement of the limiting instruction is clear and forthright. In my opinion we ought not to engraft exceptions to that mandate.
Simple adherence to the statutory requirements provided for in Chapter 552 will avoid reversals.
In my opinion it was error to fail to give the oral instruction as required by § 552.-030.6 and the written instruction required by MAI-CR 2.36. I therefore dissent.