The opinion
SEILER, Judge
(dissenting).
I respectfully dissent. I would do away with the rule announced in State v. Aubuchon (Mo.Sup.) 381 S.W.2d 807 , which, while ostensibly recognizing the right of defendant to obtain material in the hands of the state where his trial would be fundamentally unfair otherwise, in practice effectively forecloses the defendant from exercising the right by requiring him to show an inconsistency between the police report and the testimony of the witnesses at the trial. If the defendant must first show what is in the police report is inconsistent with the testimony of the witness in question, then as a practical matter, the right of the defendant to obtain the “material is destroyed, because the production of the police report is the sine qua non for the discovery of an inconsistency. 1 To insist on the requirement that the defendant first show that a document to which he has no access contains something which is posi *589 tively inconsistent with what the identifying witness is now saying in court before he can have the statement is, in effect, to leave the defendant with the right in name only, comparable to telling a starving man he has a right to eat, if he can pay for it. As stated in Jencks v. United States, 353 U.S. 657, 667 , 77 S.Ct. 1007, 1013 , 1 L.Ed. 2d 1103 : “Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense * * * ” Such an end result is not consistent with our declaration in State v. Crayton (Mo.Sup.) 354 S.W.2d 834, 838 (which also involved production of a copy of a police report) that “ * * * After all, the ultimate purpose of a criminal trial is to procure substantial justice and not merely to convict the defendant.”
Access to favorable information in the police report is actually part of the right to ask challenging questions by cross-examination, which is one of the fundamental rights of a defendant in any criminal trial. The constitutional guarantee of appearing and defending and meeting the witnesses face to face, Art. I, Sec. 18(a), 1945 Constitution, V.A.M.S., includes cross-examination or it would be worthless, Snyder v. Massachusetts, 291 U.S. 97, 106 , 54 S.Ct. 330 , 78 L.Ed. 674 ; In re Oliver, 333 U.S. 257, 273 , 68 S.Ct. 499 , 92 L.Ed. 682 ; Greene v. McElroy, 360 U.S. 474, 496-497 , 79 S.Ct. 1400 , 3 L.Ed.2d 1377 . As Wig-more says of cross-examination, Evidence (3rd Ed.) Vol. V, Sec. 1367, p. 29, “ * * * it is beyond any doubt the greatest legal engine ever invented for the discovery of truth * * * ” For the right of cross-examination to mean much in practice, it must be an opportunity of effective cross-examination, an opportunity of fully informed cross-examination. As Justice Traynor said in writing for the California court in People v. Riser, 47 Cal. 2d 566 , 305 P.2d 1, 13 , “ * * * the state * * * has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits * * * ”
The majority opinion does not reach the point of whether the court erred in refusing to produce that portion of the police report containing the description of the robber, on the ground there was no prejudice to the defendant inasmuch as the material sought would not have been of any assistance to defendant in cross-examination of the state’s witnesses. However, I fail to see how we can be so certain as to the non-helpfulness of a document which we have not seen, nor was it actually seen by the trial court, for that matter. All we know about it is what the police remembered about it and they had not looked at it for months. With all due respect to the police, I do not believe we should determine the issue merely on their testimony to the effect that production of the report would not be helpful to the defendant.
The least we should do here is to require the trial court to send up the police report, so we can take a look at it before we declare that the failure to produce it was not prejudicial to defendant. In addition, I would hold that to the extent that the Au-buchon case, supra, requires that defendant must first show that the material in the police report which he seeks on identity is contradictory, that it be overruled (and the same would be true of other cases holding the same as Aubuchon 2 ) and no longer followed in that respect in cases tried after publication of this opinion.
. A fallacy of the same nature was rejected by the court in Smith v. Tracy (Mo.Sup.) 372 S.W.2d 925, 938 , where one party was seeking to exclude parol testimony in a fraud ease on the basis that parol evidence should not be admitted until there had first been a showing of fraud. The court said “the fallacy of the argument is apparent”, pointing out that it generally is necessary to admit the parol evidence to prove the fraud and that a rule requiring that fraud must be shown before parol evidence would be admissible, would, for all practical purposes, destroy the exception to the parol evidence rule which exists when fraud is alleged.
. This would include State v. Balle (Mo.Sup.) 442 S.W.2d 35 ; State v. Yates (Mo.Sup.) 442 S.W.2d 21 ; State v. Smith (Mo.Sup.) 431 S.W.2d 74 ; State v. Blevins (Mo.Sup.) 421 S.W.2d 263 , and Rose v. State Board (Mo.Sup.) 397 S.W. 2d 570 .