¶1concurring.
¶2I agree with the principal opinion in all respects other than its discussion of Sections 491.400-491.450, as interpreted by State v. Gray, 616 S.W.2d 102 (Mo.App.1981), and the discussion of waiver of rights thereunder. In my view, those problems are not here involved. The discussion mentioned is therefore unnecessary and may create future confusion.
¶3In Gray, the defendant objected to the state’s use of prior testimony, and it was held that the state could not use the testimony because a diligent effort had not been made to secure the personal attendance of the absent witness as would have been possible under the cited statute. In the present case, appellant made no objection to the state’s use of the prior testimony and makes no point on appeal respecting the admission of that testimony.
¶4Rather, what appellant wanted was a continuance so that he could subpoena Thompson. The state made no objection on the ground appellant had not made an earlier diligent effort, nor could any such objection have reasonably been made under the circumstances. The state’s objection to a continuance and the court’s denial of the request were on different grounds, wholly unconnected with the Graydoctrine.
¶5With the exception above noted, I fully concur in the principal opinion.