HIGGINS, Commissioner.
Appeal from denial, after evidentiary hearing, of motion under Criminal Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction of forcible rape.
Joseph Warren, Jr., with two prior convictions for burglary, second degree, and convictions for larceny from the person and robbery, first degree, by means of a dangerous and deadly weapon, was indicted for the forcible rape of Mary Tate. He went to trial before a jury February 13, 1962. The state’s evidence showed that defendant forced his way into Mary Tate’s apartment about noon September 15, 1961; that he “tusseled” with her throughout the apartment; that he held her by the throat while attempting to remove her clothing; that she freed herself and ran into her kitchen; that defendant pursued her, struck and knocked her to the floor, put a butcher knife to her neck, threatened to [499]*499kill her if she did not submit and, by such means, accomplished an act of intercourse. The victim called the police, who arrived around 12:30 p. m., found her screaming, and took her to the hospital. The hospital found her neck to be sore and that she had a pelvic superficial laceration about ½ cm to the left of her vaginal opening. Defendant admitted the act of intercourse but defended on the theory that prosecutrix consented to the intercourse and that it occurred in midmorning after which both parties washed themselves, thus to account for the lack of any evidence to show spermatozoa present. The jury resolved the issues against defendant; the court, Judge Mayfield, sentenced defendant to forty-five years’ imprisonment, and the verdict, judgment, and sentence were affirmed. State v. Warren, Mo., 366 S.W.2d 311. See also State v. Warren, Mo., 406 S.W.2d 605, affirming denial of relief on two prior motions under Rule 27.26.
In this collateral attack on his conviction, movant asserted, as grounds for relief: (1) that the prosecutor failed to reveal contents of a “newly discovered” laboratory report and was thus guilty of suppression of evidence, and that the failure of the trial court to permit inspection of police reports as requested by counsel denied defendant a fair trial; and (2) that he was represented at trial by incompetent counsel.
Appellant now contends there was a suppression of evidence and denial of a fair trial in the alleged failure of the state to produce a purported laboratory report and in the alleged failure of the court to permit inspection of police reports as requested by counsel; and that the court erred in concluding defendant was represented by competent counsel.
Although characterized by appellant as a “sterile approach,” nevertheless this review is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Criminal Rule 27.26(j), V.A.M. R.
In support of his allegations of newly discovered evidence and suppressed evidence, movant had a document marked for identification as “Movant’s Exhibit 1, 6-10-69, ERG,” which, according to movant, “is a medical report which I have an attorney to purchase from the police department and sent to me in prison and they don’t have any record of it in the transcript.” The state’s objection to admission of the document on grounds “there’s been no attempt to verify it, its accuracy, to establish what it really is,” was sustained. Movant stated further that no one attempted to introduce the exhibit at trial, nor did his attorney attempt to obtain a copy of it.1
With respect to trial counsel’s alleged incompetency, movant testified, “the counselor at one time did object to the hearsay evidence which was the Judge himself going out of the courtroom to obtain evidence to — he proposed to talk to some doctor out of the courtroom and * * * come back in and tell what the doctor said to him. Now, he objected to this but it was all true. * * * No one in the courtroom could understand that report so the Judge asked the prosecuting attorney to go out of the courtroom and said he talked to some doctor and the doctor told him this and the other and he read it into the record.” He felt all the state’s evidence was hearsay “because there wasn’t anyone present but she and I,” and his attorney never objected to use of hearsay. He conceded that his attorney did object to [500]*500admission of the medical report and the judge overruled him. He referred also to a matter upon which witness James Jackson testified. He conceded that counsel obtained “changed” answers from the witness on cross-examination, and seems to say had this been known to the police, “then there would never be a warrant issued * * He charged also that his attorney “should have investigated the case and got those records from the police department because it was in my favor.” His final complaint was with counsel’s decision to disclose defendant’s prior convictions on his cross-examination. He admitted that the matter was discussed and that counsel -stated his reasons; however, he could not recall counsel’s reasons.
Hugh J. White testified in response to the motion. He was retained by Joseph Warren, Jr., to defend him on the rape charge. “ * * * after consultation with my client, I followed each of the leads which he gave me. I made personal trips to the place of employment of the State’s chief witness and did all things that I could in preparation of the case before it came to trial.” He talked to his client prior to trial “at least a half dozen times.” He cross-examined the state’s witnesses,2 and he was “inclined to doubt” the asserted failure to object to hearsay statements. He objected to admission of the “medical card.” With respect to the problem of defendant’s testifying, he “had previously talked to the Defendant * * *, and I suggested to him that it would be probably better in the eyes of the jury if I as his counsel brought out his prior record' * * * I was certain the State would bring it up and I proceeded with that in mind. * * * We had no disagreement about that and his taking the stand * * Defendant made no complaints of counsel’s handling of the case during course of the trial. Upon cross-examination counsel reiterated his investigation of all leads given him by defendant “or from any other source. * * * The usual sources would be to review the police record, if you could get your hands on it,3 to review any statements, if you could get to them, that may have been attributed to the Defendant, talk to him, talk to others who might know him, as fully investigate the case as you can before your trial. That’s what I did.” He believed he saw the police report, and “would have talked to anyone I thought of, after discussing with the Defendant, might have been of benefit to him. * * * I tried to find a couple of those people to get in. I wasn’t able to get any of them to come in.”
It may not be said on the foregoing record that the court’s denial of relief was “clearly erroneous.”
With respect to the alleged suppression of evidence, the document with which movant would support his allegation is so patently without identification that the trial court properly ruled it to be of no probative force. There is no evidence from the attorney who “purchased” the document from the police, if such be the fact; the emphasized recital is inadmissible hearsay, and the purported author of such statement was made known to the defense by endorsement.
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HIGGINS, Commissioner.
Appeal from denial, after evidentiary hearing, of motion under Criminal Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction of forcible rape.
Joseph Warren, Jr., with two prior convictions for burglary, second degree, and convictions for larceny from the person and robbery, first degree, by means of a dangerous and deadly weapon, was indicted for the forcible rape of Mary Tate. He went to trial before a jury February 13, 1962. The state’s evidence showed that defendant forced his way into Mary Tate’s apartment about noon September 15, 1961; that he “tusseled” with her throughout the apartment; that he held her by the throat while attempting to remove her clothing; that she freed herself and ran into her kitchen; that defendant pursued her, struck and knocked her to the floor, put a butcher knife to her neck, threatened to [499]*499kill her if she did not submit and, by such means, accomplished an act of intercourse. The victim called the police, who arrived around 12:30 p. m., found her screaming, and took her to the hospital. The hospital found her neck to be sore and that she had a pelvic superficial laceration about ½ cm to the left of her vaginal opening. Defendant admitted the act of intercourse but defended on the theory that prosecutrix consented to the intercourse and that it occurred in midmorning after which both parties washed themselves, thus to account for the lack of any evidence to show spermatozoa present. The jury resolved the issues against defendant; the court, Judge Mayfield, sentenced defendant to forty-five years’ imprisonment, and the verdict, judgment, and sentence were affirmed. State v. Warren, Mo., 366 S.W.2d 311. See also State v. Warren, Mo., 406 S.W.2d 605, affirming denial of relief on two prior motions under Rule 27.26.
In this collateral attack on his conviction, movant asserted, as grounds for relief: (1) that the prosecutor failed to reveal contents of a “newly discovered” laboratory report and was thus guilty of suppression of evidence, and that the failure of the trial court to permit inspection of police reports as requested by counsel denied defendant a fair trial; and (2) that he was represented at trial by incompetent counsel.
Appellant now contends there was a suppression of evidence and denial of a fair trial in the alleged failure of the state to produce a purported laboratory report and in the alleged failure of the court to permit inspection of police reports as requested by counsel; and that the court erred in concluding defendant was represented by competent counsel.
Although characterized by appellant as a “sterile approach,” nevertheless this review is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Criminal Rule 27.26(j), V.A.M. R.
In support of his allegations of newly discovered evidence and suppressed evidence, movant had a document marked for identification as “Movant’s Exhibit 1, 6-10-69, ERG,” which, according to movant, “is a medical report which I have an attorney to purchase from the police department and sent to me in prison and they don’t have any record of it in the transcript.” The state’s objection to admission of the document on grounds “there’s been no attempt to verify it, its accuracy, to establish what it really is,” was sustained. Movant stated further that no one attempted to introduce the exhibit at trial, nor did his attorney attempt to obtain a copy of it.1
With respect to trial counsel’s alleged incompetency, movant testified, “the counselor at one time did object to the hearsay evidence which was the Judge himself going out of the courtroom to obtain evidence to — he proposed to talk to some doctor out of the courtroom and * * * come back in and tell what the doctor said to him. Now, he objected to this but it was all true. * * * No one in the courtroom could understand that report so the Judge asked the prosecuting attorney to go out of the courtroom and said he talked to some doctor and the doctor told him this and the other and he read it into the record.” He felt all the state’s evidence was hearsay “because there wasn’t anyone present but she and I,” and his attorney never objected to use of hearsay. He conceded that his attorney did object to [500]*500admission of the medical report and the judge overruled him. He referred also to a matter upon which witness James Jackson testified. He conceded that counsel obtained “changed” answers from the witness on cross-examination, and seems to say had this been known to the police, “then there would never be a warrant issued * * He charged also that his attorney “should have investigated the case and got those records from the police department because it was in my favor.” His final complaint was with counsel’s decision to disclose defendant’s prior convictions on his cross-examination. He admitted that the matter was discussed and that counsel -stated his reasons; however, he could not recall counsel’s reasons.
Hugh J. White testified in response to the motion. He was retained by Joseph Warren, Jr., to defend him on the rape charge. “ * * * after consultation with my client, I followed each of the leads which he gave me. I made personal trips to the place of employment of the State’s chief witness and did all things that I could in preparation of the case before it came to trial.” He talked to his client prior to trial “at least a half dozen times.” He cross-examined the state’s witnesses,2 and he was “inclined to doubt” the asserted failure to object to hearsay statements. He objected to admission of the “medical card.” With respect to the problem of defendant’s testifying, he “had previously talked to the Defendant * * *, and I suggested to him that it would be probably better in the eyes of the jury if I as his counsel brought out his prior record' * * * I was certain the State would bring it up and I proceeded with that in mind. * * * We had no disagreement about that and his taking the stand * * Defendant made no complaints of counsel’s handling of the case during course of the trial. Upon cross-examination counsel reiterated his investigation of all leads given him by defendant “or from any other source. * * * The usual sources would be to review the police record, if you could get your hands on it,3 to review any statements, if you could get to them, that may have been attributed to the Defendant, talk to him, talk to others who might know him, as fully investigate the case as you can before your trial. That’s what I did.” He believed he saw the police report, and “would have talked to anyone I thought of, after discussing with the Defendant, might have been of benefit to him. * * * I tried to find a couple of those people to get in. I wasn’t able to get any of them to come in.”
It may not be said on the foregoing record that the court’s denial of relief was “clearly erroneous.”
With respect to the alleged suppression of evidence, the document with which movant would support his allegation is so patently without identification that the trial court properly ruled it to be of no probative force. There is no evidence from the attorney who “purchased” the document from the police, if such be the fact; the emphasized recital is inadmissible hearsay, and the purported author of such statement was made known to the defense by endorsement. Such circumstances do not show the suppression of evidence in denial of a fair trial envisioned by appellant’s authorities, e. g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; State v. Thompson, Mo., 396 S.W.2d 697; State v. Reynolds, Mo., 422 S.W.2d 278; State v. Napolis, Mo., 436 S.W.2d 645.
On the asserted failure of the court to permit defense inspection of the police records, note that trial counsel stated his [501]*501belief that he saw the record and acted accordingly.
On the asserted incompetency of counsel, note the conflict with respect to the wisdom of counsel’s actions depending on whether the movant or the lawyer is believed. Movant’s assertions are general and are refuted if counsel’s testimony is accepted. The court properly could resolve the conflict against movant on this record. See State v. Wilkinson, Mo., 423 S.W.2d 693.
Judgment affirmed.
PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court en Banc.
FINCH, C. J., DONNELLY, HOLMAN, BARDGETT and HENLEY, JJ., concur.
SEILER, J., dissents in separate dissenting opinion filed.
MORGAN, J., dissents and concurs in separate dissenting opinion of SEILER, J.