(dissenting).
I respectfully dissent, on the ground it was prejudicial error to admit exhibit 16, the police mug shot of Leslie, showing *806him with a beard and moustache, as part of the cross-examination of Miss Terrell.
Throughout the case, defendant was maintaining he was a victim of mistaken identification. Detective Schultz had originally selected a 1967 or earlier police photograph of Leslie as the man who shot him. This photograph was exhibit 2 and shows Leslie clean shaven. Then Detective Schultz shifted to identification of defendant (Wesley) as the man, but defendant had a moustache and a goatee. Miss Terrell, who knew both Leslie and Wesley, testified the brothers were dissimilar in appearance. One feature she mentioned was that Leslie was clean shaven, while Wesley had a beard and moustache. She had not seen Leslie since 1969.
In this setting, and for the purpose of showing Miss Terrell “doesn’t know what she is talking about”, the state, over objection, put in evidence exhibit 16, a 1970 police mug shot of Leslie, showing him with a beard and moustache, after Miss Terrell said it was a picture of Leslie. The error lies in the fact that exhibit 16 did not go to rebut or contradict Miss Terrell’s testimony that Leslie was clean shaven, when she knew him, because the exhibit portrayed Leslie’s appearance at a time subsequent to when Miss Terrell last saw him. The fact Leslie had a beard and moustache in 1970 does not contradict her testimony that when she last saw him a year or so before, and all times prior, Leslie was clean shaven as contrasted to Wesley, who had a beard and moustache. I submit the principal opinion is in error in holding exhibit 16 is relevant to the issue.
It is as though in an ordinary damage suit growing out of an intersection collision one issue was whether there was a stop sign at the intersection. Assume a witness testified there was no stop sign at the intersection. It would not be permissible to confront this witness with a photograph showing the intersection with a stop sign subsequently erected, and then, simply by obtaining the answer of the witness that this was the location of the accident, admit the photograph in evidence to rebut the witness’ testimony there was no stop sign at the intersection when the collision occurred. It would be inadmissible because it would have nothing to do with rebutting the testimony that there was no stop sign at the intersection at the time of the collision. The necessary foundation would not have been laid.
The purpose of the state in offering exhibit 16 was to show that Miss Terrell did not know what she was talking about. The jury was led to believe exhibit 16 was a contradiction of her earlier testimony that Leslie was clean shaven, this being one of the asserted differences in appearance between the two brothers. No foundation was established for such contradictory inference to be drawn from exhibit 16. The trial court should have sustained defendant’s objections and excluded exhibit 16.
On the issue of whether this error was prejudicial, the question of guilt or innocence is far too close in this case for us to disregard the error in admitting exhibit 16. Three disinterested eyewitnesses were unable to identify Wesley as the man involved. There were no corroborating witnesses, no confession, no admissions, no weapon, no fingerprints, no suspicious loot, no license numbers traced. The identification by Detective Schultz was the sole evidence of guilt. It is a “one versus one situation”. Defendant’s demeanor showed no guilt, in fact the contrary. When the detectives came to the house looking for Leslie, they were not even aware of Wesley. Wesley overheard their conversation and voluntarily came outside to the parked car the detectives were checking. The detectives then took him to be viewed by Schultz, but Schultz was not up to it, so they released Wesley without charge. Then next morning they went back to Wesley’s mother’s house and Wesley was still there. These are not the actions of a guilty man, particularly one who has shot a policeman.
*807I realize the issue of identification was one of fact for the jury, but this is one reason why we have rules of evidence to be followed as to what is put before the jury. This was a close case, and if the jury could be convinced that both Leslie and Wesley wore beards and moustaches, it would be easier for the jury to believe that while detective Schultz at first selected as a photograph of his assailant a subject who could not have committed the crime because he was in the penitentiary, he was correct when he later identified defendant Wesley, the twin brother, as the man. Exhibit 16, an official police photograph, helped the state convince the jury that Miss Terrell, a principal witness for defendant, falsified or was mistaken when she said Wesley bore a beard and moustache, but Leslie had not. In my opinion, we cannot declare as a matter of law that the admission of exhibit 16 was harmless error, see the principal opinion by Bardgett, J. and the concurring opinion by Finch, C. J. in State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc, 1972). I would reverse and remand for a new trial.