*290 Dissenting Opinion
SEILER, Judge.I respectfully dissent, because it seems to me that the objection of defendant’s counsel, in the circumstances under which it was made, was sufficiently definite when he said, “ * * * for the reason that there has been no showing that there was an intelligent waiver on the part of the defendant of his constitutional rights * * * ” (Emphasis supplied).
All concerned understood this was in reference to the testimony which the detective was about to give to the jury as to defendant’s self-incrimination. The Miranda opinion at 384 U.S. 476, 86 S.Ct. 1629 states, “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant”, and again at 384 U.S. 479, 86 S.Ct. 1630,. “But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” This opinion had been widely publicized and was in the advance sheets well in advance of the trial of the present case.
It seems to me it was clear defendant was objecting there was no waiver shown of his right against self-incrimination, as in fact there was not. The point was also set forth in the motion for new trial and carried forward in the brief.
Also, our rule 27.26(b) (3) on post-conviction remedy provides that “ * * * trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.” Defendant is claiming violation of a constitutional right and it appears to me that we will save considerable time, expense and effort for all involved if we handle the question on its merits now, State v. Beasley (Mo.Sup.) 404 S.W.2d 689, 690; State v. Reynolds, Mo., 422 S.W.2d 278.
For these reasons I would reverse and remand.