¶1CONCURRING OPINION
¶2I concur in the result reached in the principal opinion.
¶3The rule in this state as to whether a preliminary hearing is a critical stage requiring counsel is established in such cases as State v. Turley, Mo., 416 S.W.2d 75, State v. Durham, Mo., 416 S.W.2d 79, State v. Smith, Mo., 411 S.W.2d 208, and State v. Gagallarritti, Mo., 377 S.W.2d 298. The sole purpose of a preliminary hearing by the Magistrate is to determine whether a felony has been committed and whether there is probable cause to believe that the felony was committed by defendant. State v. Smith, supra. That is all that was done here and there is no showing of anything which occurred in the preliminary hearing that was used against defendant in the trial in Circuit Court or that prejudiced defendant in that trial.
¶4In Sigler v. Bird, 8 Cir., 354 F.2d 694, referred to in the principal opinion, the defendant waived a preliminary hearing before the County Judge (before whom preliminary hearings are held in Nebraska) and at that time entered a plea of guilty to the charge. The function of the proceeding before the County Judge is to make a determination similar to that by the Magistrate in Missouri and not to take a plea of guilty. However, the County Judge did take such a plea and entered it in his record. The court in Sigler holds that such plea of guilty could have been used later against defendant at his trial and that this made the preliminary hearing in his particular case a critical stage of the proceedings against defendant Bird, and failure to provide counsel under those circumstances deprived defendant of his constitutional rights. Nothing like that happened here.
¶5I concur in what the principal opinion says with reference to defendant’s second assignment of error.