¶1(dissenting).
¶2I respectfully dissent. My dissent is based on the point which rules that privately employed attorneys may no longer assist prosecuting attorneys in this state.
¶3In the first place this ruling is contrary to the general rule in this nation. In 27 C.J.S. District & Pros. Attys. § 28a, p. 711, it is said that, “ . . . special prosecutors, privately employed, are permissible if agreeable to the prosecuting attorney; and provided the district or prosecuting attorney retains control and management of a criminal prosecution, ...” and at § 29(l)(c), p. 725, it is stated that, “By the great weight of authority the court may, in its discretion, permit the prosecuting attorney to have the assistance of counsel employed by the prosecuting witness or other persons interested in securing a conviction; but such appointment, it has been held, can be made only on the request or consent of the prosecuting attorney, which, however, may be presumed from the fact of participation and assistance without objection.”
¶4*51Likewise, in this state the practice has long been approved. In the early case of State v. Hamilton, 55 Mo. 520, 521 (1874) this court stated that, “There is no law in this State to prevent the employment of counsel to assist the Circuit Attorney in carrying on a prosecution. It is very often necessary to promote the ends of justice that it should be done. When counsel are engaged and take part in the conduct of a case, the peculiar position or attitude that they shall assume in reference thereto, is primarily a matter to be arranged between themselves, under the supervision and control of the trial court. It was within the discretion of the court to permit the assistant counsel to conclude the argument in the case, if the prosecuting officer waived his right to do so, and we will not attempt to revise that discretion here. . . . ”
¶5Also, in State v. Finley, 245 Mo. 465, 150 S.W. 1051,1054 (1912) the court stated that, “Error is also assigned in the trial court’s action in permitting special counsel to conduct the examination of witnesses for the state. This assignment must also be disregarded. State v. Stark, 72 Mo. 37; State v. Coleman, 199 Mo. 120, 97 S.W. 574. The information must be preferred by the prosecuting attorney; but after that is done we see no reason why a special counsel may not conduct the trial in the same manner as the public prosecutor. He is under the eye of the court, and must conform to all the rules of the court and laws which regulate the conduct of the prosecuting attorney.” And in the more recent case of State v. Matthews, 111 S.W.2d 62, 65 (Mo.1937) Judge Westhues stated that, “If parties interested in a prosecution feel that the prosecuting attorney, elected by the people, is unable to cope with the legal talent employed by the defendant, they ought in justice be permitted to employ additional counsel at their own expense. Lawyers, after all, are sworn officers of the court and while conducting a trial are under the direct control of the trial court. How, then, can the employment of counsel in a criminal prosecution be legally prejudicial to a defendant? We see no good reason for departing from our previous rulings.”
¶6Other cases of like import are: State v. Stark, 72 Mo. 37[1] (1880), State v. Robb, 90 Mo. 30, 2 S.W. 1[3] (1886), State v. Orrick, 106 Mo. Ill, 17 S.W. 176[8] (1891), State v. Taylor, 98 Mo. 240, 11 S.W. 570[1] (1889), State v. Coleman, 199 Mo. 112, 97 S.W. 574[9] (1906), State v. Barnes, 325 Mo. 545, 29 S.W.2d 156[9] (1930), State v. Boyer, 232 Mo. 267,134 S.W. 542[6] (1911) and State v. McCracken, 341 Mo. 697, 108 S.W.2d 372[2] (1937). While the principal opinion does not mention that any cases are being overruled thereby it seems clear that the decision overrules all of the cases (and no doubt others) that have been heretofore cited.
¶7Great reliance seems to be placed on S.C. Rule 4-E.C. 7-13 which specifies the duties of a prosecuting attorney and his responsibilities to the defendant as well as to the public. I do not think that rule should affect this decision. When a lawyer is employed to assist the state he is probably bound by that rule. If not, it is clear that the prosecuting attorney is in absolute charge of the case and he will see to it that the rule will not be violated in connection with the prosecution of the case. The private attorney does not become the prosecuting attorney but is merely employed to assist him.
¶8Of course, no one wants to see an innocent man convicted of a crime. By the same token good citizens do not desire to see a guilty man acquitted. Conviction of the guilty is necessary if we are to have any substantial enforcement of laws. Many courthouses have the motto inscribed thereon that, “Obedience of law is liberty.” The defendant is entitled to a fair and just trial. The state and the public are also entitled to fair and just treatment. The defendant has always been awarded many advantages in the trial of a criminal case and recent decisions have added to them. Some of these advantages are: (1) the state must prove its case beyond a reasonable doubt, (2) the *52defendant is presumed to be innocent, (3) the defendant is entitled to twice as many peremptory jury challenges as the state in felony cases, (4) the defendant may refuse to testify and the state cannot comment thereon, (5) if he does testify his cross-examination is restricted, (6) there are restrictions upon the use of confessions and lineups, (7) the verdict must be unanimous as distinguished from three-fourths in civil cases, and (8) prior to trial the prosecutor must disclose all of his information to the defendant which might aid him. And the decision today will add one more restriction upon the prosecution.
¶9Many prosecuting attorneys are very able. In many areas, however, young attorneys are elected to that office just to enable them to obtain experience. It is not unusual to elect a man prosecuting attorney who has never actually tried a case. And yet he will often have to match his ability with highly skilled criminal lawyers. Under the principal opinion when that situation develops a private attorney could not be employed to assist the prosecution.
¶10The practice of employing private counsel is rarely used in this state. I see no necessity for this court, however, to decree that the practice is absolutely outlawed. There are no doubt a few cases from time to time where assistance is necessary and desirable. This practice which has been approved in this state for more than a century should not be disturbed.