author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. David A. PETERSON, Appellant.
    No. KCD 27230.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      R. Brian Hall, Gladstone, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and SWOFFORD, J.
   SOMERVILLE, Presiding Judge.

Defendant was found guilty by a jury of illegal possession of more than thirty-five grams of marijuana (Sections 195.020 and 195.200, RSMo 1969, V.A.M.S., as amended, Laws of 1971) and his punishment was fixed at two years imprisonment in the Department of Corrections. The marijuana which defendant was charged and found guilty of illegally possessing was obtained by a warrantless search.

Defendant duly appealed, and in pressing this court for relief charges five instances of alleged error. His first charge, that the trial court erred in overruling his motion to suppress the marijuana, and in admitting it into evidence over his objection, because the warrantless search by which it was obtained was proscribed by the Fourth Amendment to the Constitution of the United States, becomes the critical focal point of review since it is decisive of the appeal.

Evidence adduced at the hearing held on defendant’s pre-trial motion to suppress showed that at about 1:25 a. m. on July 18, 1973, as part of “a raid” called by “a Clay County Investigative Squad” to "serve numerous warrants”, Detective Captain Ar- • thur L. Piburn of the Gladstone, Missouri, Police Department, proceeded to 8 North East 70th Place in Gladstone, Missouri. The address was the home of defendant’s parents. The home faced the south. Pi-burn had with him a “Clay County warrant” for defendant’s arrest “for dispensing marijuana”. Piburn was accompanied by two other Gladstone police officers and a Missouri Highway Patrol trooper. Piburn and one of the police officers approached the home from the front and the other police officer and the trooper approached the home from the rear. Defendant and both of his parents were in the home asleep at the time. Piburn knocked at the front door of the home and defendant’s father responded and opened the front door. Pi-burn asked if defendant was there and his father replied that he was. Piburn then advised defendant’s father that they had a warrant for defendant’s arrest “for dispensing marijuana”, and the arrest warrant was displayed. Defendant’s father advised that defendant was asleep in the basement at the time and he would go and get him. Piburn declined the offer and said he and the officer would go and get defendant. Piburn and the police officer with him were then admitted into the home and they proceeded to the basement. During the “commotion” defendant’s mother awakened, and she and defendant’s father followed the officers down into the basement. The basement was divided into two sections “down the middle” running east and west. The west end of the north section was further “sectioned off” into a “room” by means of a “bamboo curtain’.’ and a “British flag”. The flag was. hung so that it could be pushed aside to go “in and out” of the “room” formed by the “sectioned off” area. The “room”, as described, was rented by defendant from his parents for $60.00 a month and was furnished with bedroom furniture belonging to defendant. Defendant’s father testified that the “room” was “exclusively” the defendant’s “area” and no one else “had a right to be there”. This testimony by defendant’s father is the sum and substance of all the evidence presented concerning right of access to and control of the basement “room” rented by defendant from his parents.

Piburn and the other officer with him entered the “room” where they observed defendant asleep in bed without any clothes on. Piburn awakened defendant and read the arrest warrant to him. While doing so, Piburn noticed “a- brown leaf with a stem on it-that appeared to be marijuana” tacked to the wall just above the bed which defendant had been asleep on.

There was a basement door near .the “room” occupied by defendant which provided access to and from the rear yard of the home. The other police officer and the trooper who had gone to the rear of the house were subsequently admitted through the basement door. They entered the basement “room” occupied by defendant while he was in the process of getting dressed.

Either Piburn or one of the other officers searched each item of defendant’s clothing before permitting him to dress. After defendant was dressed, he was handcuffed and the other two Gladstone police officers led him out of the house and placed him in a patrol car that was parked outside, leaving Piburn and the trooper in the “room” with defendant’s father and mother. Defendant’s mother and father were in the “room” when defendant was arrested, while he dressed, and when he was handcuffed and taken from the house. Defendant’s mother, according to Piburn, “was quite upset” at the time and “she was wanting to know what was going on, why we were there, what had he done and mostly crying, very upset”, and defendant’s father, who was also quite upset at the time, was “attempting to calm” her down.

After defendant was taken outside and placed in the patrol car, Piburn asked defendant’s father, who at the time was “upset and confused”, if it would be alright if they searched the “room” for “marijuana” and, according to Piburn, “he said ‘Go ahead’, something to that effect.” Piburn and the trooper then proceeded to search the basement “room” from which defendant had been removed. During the course of the search the trooper found a “large brown sack” near the foot of the bed on a pile of “bed clothes” or “discarded clothing”. A purse was also discovered in another part of the room, and it contained a substance which was later identified as marijuana. The brown paper sack was either folded or twisted, when found by the trooper, so that its contents were not visible or in plain view. Piburn opened the brown paper sack and, according to his testimony, “it contained I believe seven smaller sacks, some paper, some plastic, containing various amounts of brown ground up plant material.” Piburn also testified that the contents of the brown paper sack were subsequently analyzed as marijuana. Two cigarette butts found during the search were also subsequently analyzed as marijuana, as was the brown leaf with the stem on it tacked above defendant’s bed. The contents of the brown paper sack, the purse, and two cigarette butts and the brown leaf with the stem on it tacked above defendant’s bed were seized by Piburn and removed from the home. However, defendant was charged and tried solely for possession of the contents of the brown paper sack.

During cross-examination of Piburn by defendant’s counsel at the pre-trial hearing on defendant’s motion to suppress, the following occurred:

“Q Was there any remonstrance by Mr. Peterson when his son was handcuffed?
MR. ALLEN [attorney for the state]: Your Honor, I object to that as irrelevant.
MR. HALL [attorney for defendant]: Your Honor, we're trying to show here the character of this whole thing in terms of illegal search and seizure and as to whether or not the defendant or his parents were making decisions freely of their own choice, and I think it’s necessary to show the nature of it, to show whether or not there might be any duress involved. This is a part of the motion to suppress.
MR. ALLEN: May it please the Court, I’m submitting this not as a consent ual search at any rate, but a search incidental to a lawful arrest where they, had a warrant, and the marijuana was in a paper bag out in plain view at this point. I think this is all irrelevant.
THE COURT: I’m going to overrule the objection at this point, but if you would hurry through it because I tend to agree with Mr. Allen.
MR. HALL: All right.”

Defendant’s counsel did not press Piburn for an answer to the above question, and it went unanswered.

During direct examination of defendant’s father, called as a witness by defendant at the pre-trial hearing, the following occurred:

“Q All right. After you were advised to ■ stand back by whatever officer it was, what happened after that?
A Well, Marie, she was crying and I went over there trying to get her settled down. I was pretty settled up myself.
MR. ALLEN: May it please the Court, I must interpose an objection here for the reason this is all irrelevant really.
MR. HALL: Your . Honor,—
THE COURT: It’s sustained, as to the last answer and question.
MR. HALL: Pardon me.
THE COURT: It’s sustained as to the last question and answer.”

During direct examination of defendant’s mother, called as a witness by defendant at the pre-trial hearing, the following occurred:

“Q And what did you see when you arrived in the basement?
A They were awakening David.
Q All right. What was your condition at this time?
MR. ALLEN: Your Honor, her condition is irrelevant I believe, unless it goes to her ability to recall events.
MR. HALL: Your Honor, it’s relevant in terms of whether or not there is any duress of the gentleman who allegedly gave consent.
MR. ALLEN: May it please the Court, I’ve already pointed out this is not a consent ual search. This is a search incidental to a lawful arrest based upon a warrant, and his own evidence showed this was in the defendant’s exclusive area, an area where they had a complete right to search and his own evidence has proved this because it was the defendant’s area.
THE COURT: As I understand it then, the state is asking me to decide the issue here today not on the basis of conseniual consent but on the basis that the search is to be incident to a lawful arrest?
MR. ALLEN: Yes, sir, based upon their evidence. The officers didn’t know who had—
THE COURT: Very well.
MR. ALLEN: —authority to make consent at the time but his evidence has now established that this was the defendant’s area.
THE COURT: Very well, then the objection is sustained.
MR. HALL: Under those circumstances, I have no further questions.”

Evidence adduced at the hearing on defendant’s motion to suppress has not been sparingly referred to because judicial determination of the constitutionality of war-rantless searches necessarily turns on the “concrete factual context of the individual case.” Sibron v. State of New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 932 (1968).

Every judicial review of a warrant-less search is permeated with the cardinal principle that all warrantless searches, subject only to a few well delineated exceptions, are per se constitutionally offensive. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967), and Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022,2032,29 L.Ed.2d 564, 576 (1971). Defendant contends the warrantless search in question is beyond the perimeter of any and all exceptions to the cardinal principle just mentioned. The state rejoins by seeking to uphold the constitutionality of the warrantless search on the basis of one or all of three recognized exceptions. In the order argued by the state, they are: (1) The search was incident to defendant’s lawful arrest; (2) Exigent circumstances existed which insulated the search from being condemned as constitutionally unreasonable; and (3) Consent given by defendant’s father to the officers to conduct the search obviated any warrant requirement.

In deciding the principal question posed by this appeal this court, regardless of a perfectly human and natural inclination otherwise, must obliterate from consideration the question of defendant’s guilt or innocence of the charged offense, and restrict its review to the sole question of whether the marijuana was obtained by an “unreasonable” warrantless search, or, on the other hand, whether the warrantless search, when viewed in its “concrete factual context”, falls within one of the recognized exceptions advanced by the state.

Numerous decisions handed down by the Supreme Court of the United States have articulated the often stated and broadly asserted proposition that a warrantless search incident to a lawful arrest, even in a person’s place of abode, is a recognized exception to the Fourth Amendment’s admonition against unreasonable searches. For instance see Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958) and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623,10 L.Ed.2d 726 (1963). Even so, a warrantless search claimed to be incident to a lawful arrest is not constitutionally permissible unless it meets certain temporal and spatial requirements. As expressed in Stoner v. State of California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856, 859 (1964), “a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.” Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), refined the spatial scope of permissible warrantless searches incident to lawful arrests by limiting them to the arrested subject’s person and the area immediately accessible to him from which he might obtain a weapon or seize and destroy evidence which might be used against him. The underlying rationale of both Stoner and Chimel, insofar as relating to searches beyond the person of the arrestee, is obvious. When an arrest is completed and the subject is removed from the area to be searched, danger that the arrestee might procure a weapon from the area to be searched and endanger the arresting officers or destroy evidence located in the area to be searched, the justifying essence of warrantless searches incident to lawful arrests, no longer exists. This court encounters no qualms, because of basic logic or established, applicable legal doctrines, in holding that the search conducted by the officers in defendant’s “room” after he was handcuffed and removed to the patrol car parked outside his parents’ home was not incident to his arrest. Any other holding would constitute a bizarre and totally unjustified application of the first exception invoked by the state to validate the war-rantless search that was conducted.

Can the warrantless search pass constitutional muster as being reasonable because of the existence of “exigent” circumstances? Constitutional validation of war-rantless searches (of places of abode as opposed to automobiles) due to the presence of “exigent” circumstances, perhaps more so than all other warrant requirement exceptions, is virtually incapable of being pragmatically expressed. Basically, as in all warrantless searches, it involves a delicate balancing of an individual’s right to have his place of abode secure from intrusion against the interest of society at large in obtaining incriminating evidence with which to prosecute violators of the law. Although both are salutary goals and each serves a societal interest, the scales must inevitably tip one way or the other. The Supreme Court of the United States in at least three cases, Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948) and United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), has broadly suggested, without laying down any applicatory guidelines, that the threatened removal, destruction, or concealment of evidence or contraband, if accompanied by the existence of probable cause to believe that such evidence or contraband is present at a particular place and is so threatened, may constitute exigent eircum-stances rendering a warrantless search of a person’s place of abode constitutionally permissible. The conceptual basis for justifying warrantless searches due to “exigent” circumstances undoubtedly lies in the inexorable fact that the Fourth Amendment does not positively mandate that all searches be conducted pursuant to a warrant issued by a neutral magistrate upon a showing of probable cause, but, instead, proscribes “unreasonable” searches. If such were not true, no warrantless search could be sustained under the Fourth Amendment. The circumstances ’ spoken of in Johnson, McDonald and Jeffers, supra, and relevant attendant factors which raise them to a state of constitutional exigency, with but limited exceptions,- have never been clearly articulated in either federal case law or the case law of this state.

One notable exception in the body of federal case law is United States v. Rubin et al., 474 F.2d 262 (3rd Cir. 1973), cert, denied 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). In Rubin federal customs agents had positive knowledge that approximately ninety pounds of “hashish” was located in a certain residence which they had under surveillance. A search warrant was in the process of being procured. Before the search warrant could be obtained one of the co-defendants left the residence in a motor vehicle and he was placed under separate surveillance. A compatriot of the co-defendant who left, whom the agents had reason to believe was also involved with the “hashish”, remained in the residence. While following the co-defendant, it appeared to the agents that defendant had become aware of their presence. Therefore, the agents stopped and arrested the co-defendant at a gasoline filling station some six blocks from the residence where the “hashish” was located. “Kief”, a form of “hashish”, was found “all over” the co-defendant’s clothes when he was arrested, and the court held such permitted the agents to conclude that distribution of the “hashish” was in progress. When the co-defendant was arrested he yelled to the gasoline service station attendants, “Call my brother”. The agents testified at a pre-trial hearing that at that point “they reasonably believed that there existed ‘the threat of destruction’ to the ‘hashish’ ”. After the co-defendant was arrested, the agents proceeded to the residence and seized the “hashish” without benefit of a search warrant. The Court of Appeals, although it upheld the warrantless search, very carefully pointed out, l.c. 268, that “[m]ere probable cause does not provide the exigent circumstances necessary to justify a search without a warrant.” (Emphasis added.) See also: Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925) and Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409, 413 (1970). In upholding the warrantless search, the Court of Appeals held and stated, l.c. 268 — 269: “When Government agents, however, have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant, compare United States v. Pino, 431 F.2d 1043,1045 (2d Cir. 1970), with Niro v. United States, 388 F.2d 535 (1st Cir. 1968); (2) reasonable belief that the contraband is about to be removed, United States v. Davis, 461 F.2d 1026, 1029-1030 (3d Cir. 1972); Hailes v. United States, 267 A.2d 363 (D.C.C.A.1970); (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, United States v. Pino, 431 F.2d at 1045; (4) information indicating the possessors of the contraband are aware that the police are on their trail, United States v. Doyle, 456 F.2d 1246 (5th Cir. 1972); and (5) the ready destructibility of the contraband and the knowledge ‘that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic,’ United States v. Manning, 448 F.2d 992, 998-999 (2d Cir. 1971); United States v. Davis, 461 F.2d at 1031-1032.”

A notable exception in the body of case law in this state is State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975). The court in Wiley upheld a warrantless search due to the existence of “exigent” circumstances. In Wiley the officers who conducted the warrantless search had probable cause to believe, via information supplied by an informant over the telephone, part of which was verified, that certain persons present in an apartment had drugs stored- in a refrigerator located therein, and, after finishing a meal they were in the process of eating, were going to Illinois to dispose of the drugs. Two of the persons reported by the informant as being in the apartment were known by the officers as having the reputation of “trafficking” in drugs. The apartment building was staked out, and a second telephone call from the informant advised that a sale of drugs had been made. The officers who had the apartment building staked out observed a known user of drugs “in and about the apartment” and then saw him leave. Additionally, an orange Pinto with an Illinois license plate was observed pulling into the apartment parking lot. The orange Pinto “left in a very big hurry” when the occupants “spotted” one of the officers who had the apartment building under surveillance. After an unsuccessful attempt to obtain a search warrant, the officers entered the apartment and arrested the occupants “for possession’of contraband substances”, and one of the officers, immediately after the arrests, walked directly into the kitchen to the refrigerator and removed thereform a quantity of “morphine sulfate” and Fiorinal with codeine No. 1.” The Supreme Court, in validating the war-rantless search, emphasized (1) the existence of “exigent” circumstances, facts from which the officers could reasonably conclude that removal or destruction of the drugs was imminent or threatened, and (2) the limited nature of the search, i. e., its confinement to the refrigerator where the informant had advised drugs were located. The court also held, without specifically denominating such as an “exigent” circumstance, that the limited search involved could be sustained “upon another ground”, namely, that it was “important in these early moments after the arrest that defendant and others either be detained or released” and, therefore, it was “reasonable” for the officers to search the refrigerator “to verify the accuracy” of the information supplied by the informant. The court in summation held: “We hold, therefore, under the restricted fact situation here, that when the informant provided information concerning the exact location of the substances, a search of that location was not unreasonable. We do not, however, determine that had the information of the location of the substances been more general, such as in the apartment, that a search of the entire apartment or even of the entire room would have been warranted without a search warrnat. We merely say that under the restricted circumstances here we do not find the action of the officers to have been unreasonable.”

The facts and girding rationale of United States v. Rubin, supra, and State v. Wiley, supra, have been set forth at considerable length in order to determine whether there are any factual parallels between them and the instant case, as measured by the principles of law enunciated therein, to support the state’s argument that Piburn and the trooper were confronted with “exigent” circumstances which relieved them from obtaining a search warrant.

That portion of the opinion in Wiley holding that the limited search could be justified as reasonable because it enabled the officers to determine whether the occupants of the apartment should be released or retained in custody, immediately fades from serious consideration. Here the defendant was arrested and taken into custody by virtue of an arrest warrant for an alleged offense totally unconnected with the contraband that was seized during the war-rantless search.

Based on the facts presented by this appeal as measured by the facts and legal principles of United States v. Rubin, supra, and State v. Wiley, supra, can it be said that the circumstances facing Piburn and the trooper had reached a state of constitutional exigency, thereby precluding the necessity of a search warrant? Assuming, arguendo, that probable cause existed for the officers to believe that additional contraband might be cached in defendant’s “room” — presence of what appeared to be marijuana tacked to the wall above defendant’s bed coupled with knowledge that the warrant which they carried for defendant’s arrest was for “dispensing marijuana”— that alone did not constitute an “exigent” circumstance justifying the warrantless search conducted of defendant’s “room”. United States v. Rubin, supra. In the instant case the search was not limited to a particular place as in Wiley. Unlike both Wiley and Rubin, no facts were present in the instant case from which the officers could reasonably conclude that defendant had compatriots at or in the immediate vicinity of the situs of the search who were threatening to destroy, conceal or remove the marijuana. There was nothing by way of evidence presented at the pre-trial hearing that even intimated that the officers reasonably believed that destruction, removal .or concealment of contraband material was imminent or threatened. The very most that can be said is that defendant’s parents were upset and distraught. As might be expected when their son was awakened from his sleep and arrested at 1:30 in the morning, the atmosphere in the basement “room” was charged with emotional tension. But there is not one scintilla of evidence that defendant’s parents were other than law abiding citizens, and the record is devoid of any evidence linking them to the marijuana. The facts disclosed that defendant’s parents were cooperative in every respect and made no effort to in anyway thwart the officers. In the absence of any evidence that one or both of defendant’s parents were known by the officers to be persons of disreputable character, or compatriots of their son regarding possession of the marijuana, this court is unwilling to say that the mother’s weeping and the father’s upset condition, alone, was sufficient to cause the officers to conclude or infer that the parents posed a threat with reference to concealment, removal or destruction of the marijuana. The state made no effort to show that undue delay would be encountered in obtaining a search warrant, or that one or several of the officers would be subjected to possible danger if they remained in defendant’s “room” while one of the other officers sought to procure a search warrant. Since the record discloses that the officers appearance at the residence in question during the wee hours of the morning was part of a general drug raid conducted in Clay County, this court, in the absence of evidence to the contrary, is not willing to infer that a search warrant could not have been timely obtained. In view of the particular circumstances of this case, if difficulty in obtaining a search warrant, because of possible inconvenience to an issuing magistrate, standing alone, is held to rise to the dignity of a constitutional exigency, then law enforcement officers, by the simple expedient of launching widespread raids and searches at nighttime, could circumvent the Fourth Amendment in a manner never envisioned by its drafters.

This court holds that the state did not' carry the burden [ Vale v. Louisiana, supra, 399 U.S. at 34, 90 S.Ct. at 1972, and Chimel v. California, supra, 395 U.S. at 762, 89 S.Ct. at 2039] of showing that the circumstances surrounding the warrantless search rose to the level of constitutional exigency. Therefore, the state’s effort to sustain the war-rantless search on the basis of the existence of “exigent” circumstances must fail. At best, the state’s evidence showed that what appeared to the officers to be a leaf or stem of marijuana tacked above defendant’s bed triggered off, however well meaning, an unmitigated fishing expedition for evidence totally unconnected with the charge for which defendant was arrested, and one that cannot be condoned, in light of its “concrete factual context”, on the theory that it was justified by the existence of constitutionally exigent circumstances.

Attention is now directed to the state’s final argument that the warrantless search should be upheld as a consensual search. As previously noted, the state at the pre-trial hearing on defendant’s motion to suppress advised the court that it was not contending that the search could be justified as a consensual search, conceded that the defendant’s evidence showed that he had exclusive possession of the basement “room”, made no attempt on direct or cross-examination to show otherwise, and by various objections effectively precluded defendant from introducing evidence that the ostensible consent given by his father was involuntary. Can the state now belatedly contend that the search was consensual? Fundamental concepts of fairness and technical procedural rules imbuing our system of criminal justice would seem to say no. See Giordenello v. United States, 357 U.S. 480, 487-488, 78 S.Ct. 1245, 1250-1251, 2 L.Ed.2d 1503,1510-1511 (1958) and Osborne v. United States, 351 F.2d 111, 120 (8th Cir. 1965), and compare State v. Stevens, 467 S.W.2d 10, 18 (Mo.1971), where the court stated that “[i]t is the procedural rule in this state that reasons urged in a brief which were not advanced to the trial court are of no avail . . Such rule serves a legitimate state interest in the trial of a criminal case in that it prevents an accused from trapping the trial court by presenting to it an unmeritorious reason in support of an objection, and then presenting an entirely different reason to the appellate court.” Be that as it may, the third exception urged by the state in support of the warrantless search, i. e., that it was a consensual search, may be disposed of on its merits without resort to fundamental concepts of fairness or technical procedural rules. Authority to justify defendant’s father’s ostensible consent for the officers to search the “room” does not rest upon the law of property and its many historical and legal ramifications, but rests on whether defendant’s father had retained the right of joint access to and joint control over the basement “room” rented and occupied by defendant “for most purposes”, so that defendant could be said to have assumed the risk that one or the other of his parents might well consent to a warrantless search of the basement “room”. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and United States v. Heisman, 503 F.2d 1284, 1288 (8th Cir. 1974). The only evidence touching upon this question came from defendant’s father who testified that the basement “room” was “exclusively” the defendant’s “area” and “no one else had a right to be there”. The state obviously concluded, during the course of the pre-trial hearing, that defendant’s father lacked the requisite authority to give any constitutionally binding consent to the warrantless search of the basement “room”, since it made no effort to counter defendant’s evidence in the respect just mentioned. Vestiture of authority in defendant’s father to consent to the officers’ search of defendant’s “room”, United States v. Matlock, supra, and United States v. Heisman, supra, as well as the voluntariness of the consent relied upon, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), were both essential to uphold the warrantless search on the theory that it was consensual, and the burden rested upon the state, Vale v. Louisiana, supra, and Chimel v. California, supra, to prove both essentials by a preponderance of the evidence, United States v. Matlock, supra. The state failed to come forward with sufficient evidence to enable this court to hold that the warrantless search in question fell within the consensual exception.

The fact that defendant was in lawful custody by virtue of a validly issued arrest warrant at the time the unreasonable search took place did not ostracize him from the protective umbrella of the Fourth Amendment. The suppression of evidence resulting from unlawful searches is not a judicial exercise designed to frustrate those charged with enforcement of our laws; it is nothing more and nothing less than judicial compliance with the positive mandate of the Fourth Amendment that all citizens, the guilty and innocent alike, shall not be subjected to unreasonable searches and seizures. In spite of a popular notion in some quarters that the avowed purpose of the Fourth Amendment can no longer be reconciled with the course of modern day society, the people have not seen fit to eliminate or rewrite it. Its wording today is the same as when it was originally written and adopted. The people wrote and adopted the Fourth Amendment, and they alone possess the power to eliminate or rewrite it. To date, in their innate wisdom, they have not seen fit to do either. Courts are charged with the solemn obligation of upholding the Fourth Amendment. They are powerless to eliminate or rewrite it. Although a multitude of cases construing and applying the Fourth Amendment may at first blush appear to some to be a verbal symphony of confusion and contradiction, a careful scrutiny of the facts of each discloses a dedicated and conscientious effort to carry out its mandate — “[t]he right of the people to be secure in their persons, houses, papers, and effects,- against unreasonable searches and seizures, shall not be violated, . . . .” In an effort to do no less, this court finds and holds that the search, complained of was constitutionally offensive and the trial court erred in overruling defendant’s motion to suppress and in admitting the controversial marijuana into evidence.

Since it is patently obvious that the state can not make a case against defendant as charged in the information absent use of the marijuana that was seized during the warrantless search, the judgment is reversed and the defendant is ordered discharged.

All concur.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James C. MURPHY, Appellant.
    No. KCD 27113.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Willard B. Bunch, Public Defender, Ceno-bio Lozano, Jr., Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of trial court denying motion to withdraw pleas of guilty in five felony cases and sentencing appellant, James C. Murphy, to imprisonment in each of such cases.

James C. Murphy was charged in the Jackson County Circuit Court in four separate informations and one indictment as follows:

No. C — 42731. Robbery in the first degree with a deadly weapon.

No. C-43390. Burglary in the second degree and stealing in connection therewith.

No. C-43415. Robbery in the first degree with a deadly weapon.

No. C-44489. Escaping jail before conviction.

No. C-43355. Escaping jail before conviction.

Murphy originally pleaded not guilty to each of the charges. On October 30, 1973, he appeared in the Jackson County Circuit Court, represented by the Assistant Public Defender, and withdrew his plea of not guilty in each case and entered pleas of guilty to all of the charges.

In receiving the pleas, the trial court took up each charge separately and questioned the defendant carefully and at length in order to be assured that the plea was entered voluntarily and knowingly. In each case, the defendant stated to the court the factual basis for the charge and acknowledged his participation in each of the offenses. The court ascertained that the defendant knew the range of punishment for each of the charges and repeatedly impressed upon the defendant that, on his plea of guilty, the court would fix his punishment within such limits and that the court was .under no obligation with regard to any recommendations from any source whatever as to the punishment. The defendant indicated by his answers that he was aware of the court’s function and also stated that his plea was not the result of promises to him by anyone.

The court accepted each plea following his separate questioning of the defendant in each of the charges. The court ordered a presentence investigation and reset the cases for November 30, 1973.

Before any sentence had been imposed, the trial court received a letter from Murphy which it considered a motion to withdraw the pleas, under Rule 27.25, V.A.M.R. On December 14, 1973, a hearing was held on the motion. At the hearing it was shown that defendant, at the time of the entry of the pleas of guilty, was charged in another division of the Jackson County Circuit Court (“O’Leary’s Court”) with armed robbery and that a jury there had found him guilty on the charge. See State v. Murphy, 521 S.W.2d 22 (Mo.App.1975). It is not clear whether the trial of that charge preceded or followed the entry of the pleas, but sentence was imposed in that case some two weeks before the hearing. It was also shown that Murphy was negotiating with federal officials about possible pleas of guilty to two federal bank, robbery charges. In response to his counsel’s questioning as to his “understanding” in connection with the pleas here involved, Murphy stated:

“Well, the only understanding I had was that these cases would be held off, until the case that .1 had in O’Leary’s Court — I was sentenced there; and, that these cases could possibly be run concurrent with that. I was trying to plead guilty to federal charges, so I could go to the federal penitentiary.”

Murphy also stated that he understood that the prosecutor would recommend to the court that the sentences in these cases run consecutively, but that the total sentences run concurrently with the sentence imposed in Judge O’Leary’s Court. The defendant acknowledged that he understood that the prosecutor had no control' over the sentence to be set by the court.

Murphy’s counsel at the time of the pleas testified that he understood that the prosecutor would make a recommendation that the sentences in the five cases be concurrent with that in O’Leary’s Court and that the possible federal charges were then brought up by Murphy for the first time, who indicated that he wanted to serve the federal time before any time for the state charges. No federal charges were in fact filed. The court interrogated counsel as follows:

“Q. * * * Now, for the record, I want you to indicate whether or not the fact is that the only discussion you had with this Court, regarding these sentences, was that this Court would take only valid guilty pleas, voluntary guilty pleas, with the full understanding by everyone that this Court was not bound by any agreement by other people. Isn’t that a fair statement of our discussion?
“A. That is a fair statement, Your Hon- or. I would add — in fairness, I would.have to say that the Court, to the best of my recollection, and Mr. Edwards is present, it was your intention to order a pre-sentence investigation in these five matters,’ as I recall. The reason for that was that that would give the federal authorities, if they so intended to file and proceed against Mr. Murphy under Rule 20, it would give them an opportunity to do so. They declined, as it turns out, to do so.
“Q. And the fact was and is that this Court, in no way, at any time, caused you to believe that any guilty pleas entered by the defendant would subject the defendant to anything but the discretion of this Court, as to sentencing. Now, isn’t that correct?
“A. Absolutely.”

The court thereupon denied the motion to withdraw the plea in each case and sentenced the appellant as follows:

Cause No. C-42731, robbery, first degree, five years’ imprisonment, to be consecutive to the sentence imposed in Cause No. 42595 B, the case in O’Leary’s Court.

Cause No. C-43355, escaping before conviction, two years’ imprisonment, to be con- ’ secutive to that imposed in 42595 B and’ 42731.

Cause No. C — 43390, burglary and stealing, three years’ imprisonment for burglary and two years for stealing, to run consecutively,, and consecutive to the sentences in 42595 B, 43355 and 42731.

Cause No. C-43415, robbery in the first degree, five years’ imprisonment, consecutive to the sentences imposed in 42595 B, 42731, 43355 and 43390.

Cause No. C-44489, escape, two years’ imprisonment, consecutive to the sentences in 42595 B, 42731, 43355, 43390 and 43415.

In this court appellant contends that the pleas were not voluntary because the defendant was led to believe that the sentences in those cases could be made concurrent to that imposed in Judge O’Leary’s Court, “when in fact the manner in which his pleas were accepted divested the court, as a matter of law, of the authority to impose concurrent sentences by virtue of § 546.480, V.A.M.S., thus rendering the promised recommendation illusory and without substance.” Appellant also contends that the pleas were not knowingly made because he was not advised of the consequences of § 546.480.

These contentions are now cast in a different light, in view of the decision of the Supreme Court en banc, holding § 546.480 unconstitutional. State v. Baker, 524 S.W.2d 122 (Mo. banc, decided June 9,1975). In that case, the court returned to the trial court for resentencing, in the exercise of the court’s discretion as to whether the sentences should be concurrent or consecutive, a ease in which consecutive sentences had been imposed under the compulsion of § 546.480.

If that procedure is followed in this case, appellant will receive what he now contends he anticipated, i. e., the court’s exercise of its discretion as to the terms of the sentences with relation to the punishment in Judge O’Leary’s Court. The problem of failing to advise of the consequences of § 546.480 will be nullified because that statute will no longer be a factor.

On this record, it cannot be said that the trial court’s refusal to permit withdrawal of the pleas was an abuse of discretion. See State v. Jackson, 514 S.W.2d 638 (Mo.App.1974). However, by according appellant the benefit of resentencing in the light of State v. Baker, supra, he will have received all that he claims he expected, in any event.

The judgment of the trial court denying the motion to withdraw the pleas of guilty is sustained. The case is, however, remanded to the trial court for the limited purpose of re-imposition of the sentences by the court in an exercise of discretion whether to impose the sentences in question concurrently or consecutively, including such exercise of discretion with respect to the relationship of the sentences in these cases to the sentence in Judge O’Leary’s Court. The defendant will; of course, have the right to be present upon such resentencing .and to present such matters as might be relevant to the court’s exercise of its discretion.

All concur.


author: TURNAGE, Judge.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Respondent, v. The TRAVELERS INSURANCE COMPANY, Appellant.
    No. KCD 27009.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Jack B. Robertson, Gary E. Lowe, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for appellant.
    David C. Trowbridge, Dennis P. Wilbert, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Plaintiff brought this suit for contribution toward compensation, expenses and attorney fees paid by plaintiff as a result of a compensable injury suffered by Donald E. Harpold. Plaintiff was the Workmen’s Compensation insurer for Morgan Supply Company of Missouri (Missouri Company) and defendant was the Workmen’s Compensation insurer for Morgan Supply Company of Kansas (Kansas Company). Plaintiff’s petition was based on the allegation that Harpold was a joint employee of both the Missouri Company and the Kansas Company at the time he sustained his injury, but such claim was filed against the Missouri Company only. Defendant denied the joint employment, but the court, sitting without a jury, found for the plaintiff and entered a judgment in its favor for $4,198.63, which was one-half of the total amount expended by plaintiff on the claim made by Harpold.

Defendant does not raise any objection to the amount of the judgment, nor does it question the right of plaintiff to recover under the theory of contribution if there was in fact a joint employment of Harpold by both Companies. Defendant raises only two points on this appeal. The first challenges the finding of the trial court that Harpold was jointly employed. This requires a review of the evidence.

All of the evidence was submitted by deposition except for a transcript of the hearing before the Kansas Workmen’s Compensation Commission. Harpold began work for the Missouri Company prior to 1961. Harpold was a salesman who called on plumbing retailers and contractors for the purpose of taking orders to be filled by the Missouri Company. His territory consisted of the State of Kansas and an area around Nevada, Missouri, although Harpold made some calls as far north as Harrison-ville, Missouri. The Missouri Company was owned by Ed Morgan and his wife, but associated with them in the conduct of the business was their son-in-law, Ed Fleming. Mr. Fleming was vice-president of the Missouri Company. At this time Harpold’s supervisor was Ed Morgan and Harpold testified that Morgan was his only superior.

Subsequent to 1961, and prior, to Har-pold’s accident in 1966, a discussion between Morgan, Fleming and Harpold resulted in a decision to form the Kansas Company. Apparently this decision was brought about by the feeling a separate company in Kansas would help develop the Company’s business in Kansas. Harpold became one of the incorporators of the Kansas Company and was listed as a vice-president, although he stated his function as an incorporator and officer was largely of a pro forma nature -to satisfy the requirements of establishing a Kansas corporation. Since Harpold was the only salesman the Missouri Company had in Kansas, it was decided he would continue to cover Kansas as a salesman for the Kansas Company and at the same time would continue to cover his Missouri territory.

According to Harpold, Ed Morgan remained his supervisor because Morgan and his wife owned both the Missouri and the Kansas Companies. Morgan was president of the Missouri Company and secretary-treasurer of the Kansas Company. Harpold would write orders for both the Missouri and Kansas Companies from business which he developed in Kansas. He stated the orders would be written on either the Missouri or Kansas Company depending on the location of the point of delivery. This latitude in choosing which Company received the business resulted from the transportation regulations governing the metropolitan Kansas City area. Because of these regulations, some orders, if filled by the Kansas Company would have to go from Olathe, Kansas, the location of the Kansas Company, to Kansas City and then out to the delivery point in Kansas. Other orders could be filled direct from the Olathe office, while others could be filled direct from the Missouri office in Kansas City. Mr. Fleming testified that even though an order might be written on one Company, it could and was on occasion filled by the other Company and the Kansas Company would bill for orders filled by the Missouri Company when the order was written on the Kansas Company. Harpold stated he would decide which Company an order would be written on at the time he wrote the order, except in the case of extremely large orders, in which event he would hold a conference with either Fleming or Morgan and decide on which Company the order would be written. When direct inquiry was made of Harpold as to which Company employed him, he stated he worked for both Companies.

While the Missouri and Kansas Companies were operated as separate corporations, it is clear from the testimony of Harpold and Fleming that Ed Morgan owned both Companies and was in reality the person who exercised ultimate control over the operation of both Companies and Harpold. Fleming testified that as president of the Kansas corporation he did supervise Har-pold’s activities on a day-to-day basis, although he stated Morgan did indirectly supervise Harpold.

Harpold was paid by the Missouri Company, which was reimbursed by the Kansas Company in proportion to the amount of Kansas sales made by Harpold. In addition, Harpold received a commission and the Kansas Company likewise reimbursed the commission due on Kansas sales. This resulted in the Kansas Company paying about 80% of his salary. Fleming testified the payroll for Harpold was handled in this manner because at the time the Kansas Company began business it was a small operation and Harpold was already on the Missouri Company payroll. Mr. Torbert, the CPA who kept the books for both the Missouri and Kansas Companies, testified Harpold was paid in the above described manner and further stated it was simpler to carry him on only one payroll than it was to have him on two.

Ed Morgan was deceased at the time of trial so his testimony was not available. However, from the testimony of Harpold, Fleming and Torbert, there is no doubt Harpold was jointly employed by both the Missouri and Kansas Companies and that he was subject to the ultimate control of Morgan who owned both Companies and was also subject to day-to-day control by Fleming as president of the Kansas Company. While the two Companies were organized and existing as separate Companies, in fact they • were owned and controlled by the same persons and their business was so intertwined they in fact almost operated as a single Company insofar as Harpold was concerned. Harpold had full authority to write orders on both Companies, with the right to decide on which Company a particular order would be written, except in exceptional circumstances. Thus, it would be virtually impossible to say at any given time that Harpold was employed by one Company and not the other.

Defendant bases its claim of failure of proof on portions of the testimony of both Harpold and Fleming. Each had signed a statement for defendant’s claim agent in which each stated Harpold on the day of the accident was employed by the Missouri Company. However, their sworn testimony differed from such statements. It is true both Harpold and Fleming made isolated statements which would tend to cast doubt on joint employment but a fair consideration of the evidence as a whole strips away the doubt cast by these fragmentary views.

The hoary test of the master-servant relationship is the right of control. Lawson v. Lawson, 415 S.W.2d 313 (Mo.App.1967). That test is met here by showing the actual owner of both Companies had control of Harpold, with a delegation of authority to Fleming through the Kansas Company to exercise control also. Under this ancient test, the evidence showed beyond cavil Har-pold was a joint employee of both Companies.

The review in this case under rule 73.01 ¶ 3(a), V.A.M.R., is upon both the law and the evidence as in suits of an equitable nature. “The nature of review in equity cases has historically demanded that due deference be given to the findings and conclusions of the trial chancellor, and that this rule of deference not be ignored ‘unless the evidence is palpably insufficient to sustain the findings.’ ” R. L. S. v. J. E. S., 522 S.W.2d 5[2] (Mo.App.1975).

The evidence outlined above is more than sufficient to sustain the findings of the trial chancellor and for that reason the finding of the trial court that Harpold was the joint employee of both the Missouri and Kansas Companies must be sustained.

Defendant’s second point is that the court should have applied Kansas law in this case to the effect that the facts showed Harpold was not a special employee of the Kansas Company, and, therefore, contribution would not be allowed under the test set out in Bendure v. Great Lakes Pipeline Company, 199 Kan. 696, 433 P.2d 558 (1967). In this argument, defendant reargues the absence of any evidence to show a joint employment of Harpold by both the Missouri and Kansas Companies. In Bendure the court was concerned with the definition of “special employee” as used in the Kansas Workmen’s Compensation Law. In this case, plaintiff does not contend Harpold was a special employee of the Kansas Company, nor does plaintiff seek to recover under the provisions of the Kansas Workmen’s Compensation Law. Rather, plaintiff relies, as pointed out above, on the joint employment of Harpold by both the Missouri and Kansas Companies.

On liability for contribution for injury to joint employees, Kansas applies the same law as Missouri. In Newman v. Bennett, 212 Kan. 562, 512 P.2d 497 (1973) the Kansas Supreme Court was considering an employee who was jointly employed by six separate employers. In discussing the liability of the employers the court stated at 512 P.2d 497[13, 14]: “[i]n a situation of dual or multiple employment where injury occurs while the workman is performing a duty common to all employers, then it is only fair and logical that any award of compensation should be borne by all . . ”

Contribution is well recognized in Missouri, both under the Workmen’s Compensation Statute, § 287.130 RSMo 1969, V.A.M.S., and as a rule of law. One of the earliest expressions is found in Van Petten v. Richardson, 68 Mo. 379 (1878). The doctrine has been more recently stated in Commercial Union Ins. Co. v. Farmers M'ut. Fire Ins. Co., 457 S.W.2d 224, 226[3, 4] (Mo.App.1970) as follows:

“ ‘The doctrine of contribution is not founded on contract, but is based on the principle that equality of burden as to a common right is equity, and that wherever there is a common right the burden is also common,’ Missouri District Telegraph Co. v. Southwestern Bell Telephone Co., 338 Mo. 692, 93 S.W.2d 19, 23[8], The doctrine of contribution finds its basis in general principles of equity and of natural justice rather than contract. It is to be applied where one is compelled to pay more than his share of a common obligation which several persons are obligated to discharge.”

The'plaintiff did not cast its petition under the provisions of § 287.130, but rather pleaded a right to recover on the basis of contribution founded on the joint employment of Harpold. The defendant does not question the applicability of the general rule of contribution, but doubts only the existence of the joint employment and this issue has been resolved against it. In this circumstance, the action of the trial court in allowing contribution on the facts here presented of joint employment will be upheld.

Furthermore, since the law in Kansas, as stated in Newman, and the law in Missouri; as stated in Commercial Union, with respect to contribution, as applied to the facts of this case, appears to be the same, there is no reason to decide whether Kansas or Missouri law will control this case.

“[I]f the laws of both states relevant to the set of facts are the same, or would produce the same decison in the lawsuit, there is no real conflict of laws and the case ought to be decided under the law that is common to both states.” Robert A. Leflar, American Conflicts Law, § 103 False Conflicts, p. 239 (1959 rev. ed. 1968). See also Restatement Second Conflicts of Law § 186, comment “c” at 560 (1969) and Pacific States Cut Stone Company v. Goble, 70 Wash.2d 907, 425 P.2d 631 (1967).

The judgment is supported by substantial evidence and no error of law appears and is, therefore, affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri ex rel. Ralph MARTIN, Prosecuting Attorney in and for Jackson County, Missouri, Respondent, v. XLNT CORPORATION et al., Appellants.
    No. KCD 26979.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Arthur A. Benson, II, Kansas City, Arthur M. Schwartz, Denver, Colo., for appellants.
    Ralph L. Martin, Pros. Atty., Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment in action by State of Missouri for civil injunction.

On June 29, 1973, the State of Missouri petitioned the Circuit Court of Jackson County for a declaratory judgment of obscenity and injunction alleging that defendant XLNT Corporation d/b/a Old Chelsea Theatre in Kansas City, Jackson County, Missouri, did, on or about June 1, 1973, and daily thereafter, possess a certain motion picture, “It Happened in Hollywood,” with the intent to exhibit and show it to the public and have published and circulated it to the public by projection on a screen before the public; and that the movie is obscene under Section 563.285, RSMo 1969, V.A.M.S. Attached to the petition was the affidavit of Noel F. Vetter and Ronald E. Reese, special agents of the Federal Bureau of Investigation, who viewed the film between 10:01 a. m. and 11:36 a. m., on June 8,1973, at the Old Chelsea Theatre. Included within the affidavit was their report of eleven pages constituting their factual observations of the film.

On June 29, 1973, upon consideration of the petition, together with the supporting affidavit, the court ordered defendants to appear in court and produce the movie for exhibition and presentation to the court for a determination whether injunctive relief as prayed should be granted.

The court viewed and received the movie in evidence on July 2, 1973.

On July 5, 1973, the trial resumed, the State rested, the court overruled defendants’ motion for dismissal at the close of the State’s evidence “for failure * * ⅜ to sustain the burden of proof,” and defendants proceeded.

Over objection of the State and upon reservation of ruling as to admissibility, defendants offered Exhibits 1 through 18 purporting to be “comparable” books and magazines available at stores in Kansas City during the time in question.

Also over objection by the State and upon reservation of ruling as to admissibility, defendants adduced testimony from Professor Oscar Raymond Eggers, Dr. Stanton L. Rosenberg, and Dr. John R. Price with respect to their views on obscenity of the film and community standards.

Professor Eggers was an Associate Professor of Sociology at the University of Missouri at Kansas City. Based upon his observation of sexually explicit material available in the community, exemplified by Exhibits 1 through 18, he felt there was a substantial market for such material; that in terms of sexual explicitness the movie was comparable with some of the literature available, and, from such observations, it was his opinion that the film neither exceeded the community’s limit of candor nor appealed predominantly to the prurient interests of people in the community. On cross-examination, he stated that the movie contained a plot but “the portrayal of sexual activity was intended to be for primary emphasis. * * * Prom the standpoint of the characters portrayed I think there was no intent, no expectation of it portraying the lives of those persons as they live them day-by-day * * Professor Eggers also gave his definition of “hard core” pornography as “the portrayal of sexual organs in action,” and, in his opinion, “It Happened in Hollywood” fits within that definition. He also gave his opinion “that were the film to be shown to a representative sample of adults in the greater Kansas City area and were they then able to speak candidly, with the guarantee of anonymity, a majority of adults would say they found it interesting and that they learned something. I believe a majority would say for public expression that they found it beyond the limits of candor.”

Dr. Rosenberg was a psychiatrist. He stated that there are some kinds of sexual activity such as necrophilia, intercourse with a cadaver, and coprophilia, an interest in feces, which would arouse negative reactions in a large number of people. The movie contained no such scenes and, in his opinion, sexually explicit movies such as “It Happened in Hollywood” benefited the community by debunking primitive thoughts, feelings and attitudes about anatomy and sexual behavior, and it did not appeal to prurient interests of normal persons. On cross-examination, he recognized differing opinions among behavioral scientists as to the correlation, if any, between obscenity and social harm; and, in his opinion, there is no such thing as prurient interest or obscenity in sex.

Dr. Price was a clinical psychologist. Based upon his experience in private practice and defining “prurient” to mean an excessive or morbid interest in sexual matters, it was his opinion that the movie did not predominantly appeal to a prurient interest, applying standards of the average person in the Kansas City community. On cross-examination, he stated that the movie was unrealistic in terms of the “statistical occurrences of sexual activities”; and that while he found “It Happened in Hollywood” to be inoffensive, the only type of sexual activity which would offend his taste would be, for example, “sexual intercourse with a cadaver.”

At the close of the defendants’ case, the State offered no rebuttal, defendants again moved for dismissal, and the court took the motion and the case under advisement.

On August 3, 1973, the court entered judgment in favor of plaintiff and against defendants, declared the movie obscene, enjoined defendants from distributing or publishing it, and ordered its destruction, all in accordance with a memorandum opinion containing the court’s findings of fact and conclusions of law, of which the following are pertinent:

“* * * color film depicts an almost constant portrayal of explicit sex, including numerous acts of sexual intercourse, normal and perverted, masturbation, excretory functions and lewd exhibitions of the genitals.
“Interspersed throughout this episodic account of erotica and series of sensational sex encounters, which is connected by a thin tissue of a so-called plot, is the use of most every conceivable four letter word and other vile language. * * ⅜

“The guidelines for a determination of obscenity are set out in Miller v. California, [418 U.S. 15], 93 S.Ct. 2607 [37 L.Ed.2d 419] and Paris Adult Theatre I, et a1 v. Station [Slaton] [sic], [413 U.S. 49] 93 S.Gt. 2628 [37 L.Ed.2d 446], In Miller the Court defined the standards which must be used to identify the obscene material that a state may regulate without infringing on the First Amendment as applicable to the states through the Fourteenth Amendment as follows:

“ ‘The basic guidelines for the trier of facts must be: (a) Whether the average person applying contemporary, community standards would find the work, taken as a whole appeals to the prurient interest, (b) Whether the work depicts or describes, in a patently offensive way sexual conduct spe-cificially [sic] defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’
“The court gives two plain examples of what a state Statute could define for regulation under part (b) above as being the sexual conduct prohibited. These examples are (a) patently offensive representations of descriptions of ultimate sexual acts, normal or perverted, actual or simulated, (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
“Utilizing these tests and guidelines this court finds as a mixed question of law and fact that the film ‘It Happened in Hollywood’ is obscene within the meaning of Sections 563.280 and 285, R.S.Mo. 1969 [V.A.M.S.].
“There may be situations in which it might be difficult to make a determination of obscenity under these guidelines, but in this case this film is certainly unequivocally and decidedly obscene. The court finds that this film undoubtedly appeals to the prurient interst [sic], depicts patently offensive acts of sexual intercourse, normal and perverted, excretory functions, and lewd exhibitions of the genitals and when taken as a whole has absolutely no serious literary, artistic, political value. * * *
“* * * points that remain to be re-
solved are the admissibility of certain evidence offered by defendants and received at the trial with the reservation that their admissibility would be determined on the court’s final ruling.
“Defendants’ Exhibits 1 through 18 consist of a number of books purchased at various book stores that defendants assert are comparable books.
“Defendants’ Exhibit 19 contains a stipulation of a number of facts to the effect that various. ‘comparable’ books may be purchased throughout the Kansas City area and that the sexually explicit movies are doing a good business in Kansas City.
“The last evidentiary problem has to do with the admissibility of expert testimony as to contemporary community standards and obscenity or not.
“Inasmuch as this is a non-jury case it is not necessary to discuss at length these evidentiary problems for the reason that this evidence is in the record and may or may not be considered by the appellate court in its independent determination of obscenity. It should be stated that as to the question of the admissibility of expert opinion on the question of community standards and obscenity, the Missouri Supreme Court has ruled this type of evidence inadmissible, particularly in those cases where the obscene material is pictorial and photographic because the obscene nature in those situations is patent on its face. State v. Hartstein, [Mo.] 469 SW 2[d] 329; State v. Smith, [Mo.] 422 SW 2[d] 50 and the several cases cited therein. In making this determination our Supreme Court recognized the statements made in concurring opinions in Smith v. People of California, [361 U.S. 147] 80 S.Ct. 215 [4 L.Ed.2d 205] and noted that this issue has not been ruled by a majority of the Supreme Court of the United States.
“As to Exhibits 1 through 18 and parts of Exhibit 19 offered as ‘comparable’ examples in book form of the film the Missouri Supreme Court held these ‘comparables’ inadmissible for the reason that each case must be judged on its own merits and that the issue of obscenity cannot be decided by comparing one book or film with another. State v. Hartstein, supra.
“As to the admission of those parts of Exhibit 19 dealing with the volume of sales of ‘comparable’ materials and the economic success of explicit sex movies in the Kansas City area as indicated in Variety Magazine and defendants’ offer of these items on the theory that they prove Kansas City has accepted-these types of books and shows, the Missouri Supreme Court has not specifically ruled these issues. This court does not consider the offered books as being comparable to a color movie film. The court cannot make a judgment as to whether the economic success of explicit' sex films at other Kansas City movie houses should be considered as comparables because I have not viewed the movies mentioned.
“As to the probative value of this type of evidence the court observed in State v. Smith, supra : ‘The fact that this book sold like hotcakes and led the best seller list for weeks does not prove it has social value but comes closer to proving that there is in this country a ready market for pornography and that morbid interest in sex is being commercially exploited.’ However, these exhibits of various books, sales, data, and economic success of sexually explicit movies may have some probative value on the issue of contemporary community standards and are therefore received in evidence by the court.
“In that there is a serious question as to the admissibility of the mentioned items as evidence and that a majority of the Supreme Court of the United States has not made a determination as to whether due process, using that term in its primary sense of an opportunity to be heard and to defend a substantive right, allows a litigant to produce such proof — this court rules that for the purpose of this hearing all these exhibits are admitted in evidence and have been considered and weighed by the court in its ruling.”

Appellants’ Point II is a contention that Section 563.285, RSMo 1969, V.A.M.S., violation of which is the subject of this action, is unconstitutional, citing Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 498 (1957).

This contention is determined first, for if it presents a true constitutional question involving construction of the United States Constitution, then there is no jurisdiction in this court to resolve other questions on this appeal on their merits.

The constitutionality of Section 563.-285, RSMo 1969, V.A.M.S., is no longer an open question. State of Missouri ex rel. Wampler v. Bird, 499 S.W.2d 780, 784[8] (Mo.1973), held: “* * * Sections 563.280 and 563.285, RSMo 1969, Y.A.M.S., as construed and applied, Paris Adult Theatre I v. Slaton * * * [413 U.S. 49, 93 S.Ct... 2628, 37 L.Ed.2d 446 (1973)], are constitutional and are not overbroad in their provisions.

The statutes deal with the same matters as does the ordinance approved in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 * * *, reaffirmed in Miller v. California * * See also State v. Flynn, 519 S.W.2d 10, 13 (Mo.1975). Note also that appellants apparently recognize this determination by filing their appeal in this court. If the constitutional question was actually viable, jurisdiction would need to be laid in the supreme court. Article V, Section 3, Constitution of 1945, as amended, V.A.M.S., effective January 1, 1972; State v. Holley, 488 S.W.2d 925 (Mo.App.1972).

Appellants contend (I) that the finding that the movie is obscene was against the weight of the evidence in that (a) the trier of fact must base the decision on evidence of community standards unless no such evidence is presented; and (b) the movie is not obscene under applicable community standards.

Appellants argue under 1(a) that when they introduced competent evidence by way of their expert testimony as to community standards, any finding of obscenity per se based on the film alone “ ‘evaporates, much as a rebuttable presumption does, and the burden of proceeding shifts back to the Government * * Hermann v. United States, 304 A.2d 22, 24 (D.C.App.1973). See also concurring opinion in Smith r. California, 361 U.S. 147, 165-166, 30 S.Ct. 215, 4 L.Ed.2d 205 (1959).

Appellants, by this argument would have the trier of fact bound as a matter of law by expert testimony and foreclosed from the duty to give any such testimony the credit and weight it may deserve. This is not the law.

“Expert testimony that a publication conforms to general community standards and is not obscene is not within the proper scope of expert testimony.” State v. Smith, 422 S.W.2d 50, 58[10] (Mo. banc 1967). See also State , v. Vollmar, 389 S.W.2d 20 (Mo.1965); State v. Becker, 364 Mo. 1079, 272 S.W.2d 283 (1954); State v. Hartstein, 469 S.W.2d 329 (Mo. banc 1971), reversed by memorandum decision on other grounds at 404 U.S. 988, 92 S.Ct. 531, 30 L.Ed.2d 539. Obscene materials always have been sufficient “in themselves” to satisfy the federal constitution to support an obscenity conviction, Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); and it is not “error to fail to require ‘expert’ affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). Even the court in Her-mann v. United States, supra, would “not require expert testimony as a matter of course to establish the Roth-Memoirs elements in every obscenity case.” 304 A.2d 1. c. 25[5].

Under 1(b) appellants refer to the testimony of their three witnesses and their exhibits to assert that “The evidence presented by the defendant was uncontested,” and argue that the movie is not obscene under applicable community standards.

The movie itself is evidence in conflict with defendants’ evidence; and it, alone, if obscene, is sufficient to support the trial court’s judgment. Kaplan v. California, supra; Paris Adult Theatre I v. Slaton, supra.

The trial court viewed the movie, employed the standards of Miller v. California, supra, considered all the evidence, and made a number of findings with respect to the obscene nature of the film. Only by reference to their experts’ opinions as they may conflict with the court’s findings do the appellants question the description of the film. As footnoted in Paris Adult Theatre I v. Slaton, supra, 413 U.S. 1. c. 56, 93 S.Ct. 1. c. 2634, “This is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand. * * * No such assistance is needed by jurors in obscenity cases; indeed the ‘expert witness’ practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony. * * * ‘Simply stated, hard core pornography * * * speak[s] for itself.’ ” It is interesting to note in this connection that even defense expert Professor Eggers held the movie to be hard core pornography.

Dr. Rosenberg’s statement that there is no such thing as prurient interest or obscenity in sex, and Dr. Price’s statement that the only type of sexual activity offensive to his taste would be sexual intercourse with a cadaver, no doubt rendered their testimony suspect when considered by the court.

Appellants’ so-called comparables were also lacking in value in the court’s consideration. Such materials have been held inadmissible, and the issue of obscenity cannot be decided by comparing a book or film with another. State v. Hartstein, supra; State v. Smith, supra; State v. Vollmar, supra; State v. Becker, supra.

Accordingly, this record supports the trial court in the finding that the film in question, “It Happened in Hollywood,” is obscene under current tests and that its showing violated Section 563.280, RSMo 1969, V.A.M.S., and was subject to injunction and destruction under Section 563.285, RSMo 1969, V.A.M.S.

Judgment affirmed.

All concur.

      . This finding in description of the film is not questioned by appellants except as will be noted. It is adopted for the same purpose by this court.


author: SHANGLER, Judge.

text:
    Robert RIEPE, Respondent, v. CITY OF INDEPENDENCE, Missouri, Appellant.
    No. KCD 26657.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Richard G. Carlisle, James L. Gillham, Asst. City Counselors, Independence, for appellant.
    Jack C. Terry, Independence, Leland W. Negaard, Eminence, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

The plaintiff Riepe seeks to recover money compensation for an accrual of overtime while in the employ of the defendant City of Independence. The issues were tried to the court, a judgment found for the plaintiff, and the defendant City appeals.

The controversy arises upon this basis of fact:

The defendant City of Independence is governed by a constitutional charter which provides for the adoption of personnel rules. At a regular meeting the City Council adopted Personnel Policies and Procedures; these rules provide for payment of overtime to specified employees.

The plaintiff Riepe was employed by the City as Accountant II in pay range 30 at a salary of $700 per month and continued in that employment until his resignation at which time he enjoyed the same job classification at a salary of $851 per month. The plaintiff, who was classified with department and division heads, was subject to the Personnel Policies and Procedures which provided [Section IV(4G)] compensatory time for overtime worked by such employees as authorized at the discretion of the appointing authority.

The plaintiff was an- assiduous and satisfactory worker and by the time he separated from the City, had accumulated 318 hours in uncompensated overtime, as evidenced by a compensatory time record endorsed with the approval of the department head. It was the testimony of the Director of Finance that compensatory time was given as free time during normal working hours but in a manner so not to discommode the regular business function of the office.

The plaintiff decided to resign and hand-delivered his letter to both the Director of Finance [his department head] and to the Personnel Director wherein he gave notice of his impending departure and of his claim for the money equivalent of 318 hours in compensatory time.

The pay plan for employees of the City of Independence is delineated in Section IY of the Personnel Policies and Procedures. Paragraph 4C of the pay plan provides:

TOTAL REMUNERATION: Any salary rate established for an employee shall be the total remuneration for the employee, not including reimbursement for official travel and contractual services, except that upon approval by the City Council, as otherwise provided in these rules or City ordinances, an employee may receive pay from the City, in addition to the salary authorized by the pay plan, for services assigned him which require specific duties beyond the normal responsibilities of his position. . . . (Emphasis added.)

Paragraph 4G of the pay plan provides:

PAY FOR OVERTIME WORK: Overtime for office employees up to three hours worked on a regular work day will be recognized by compensatory time off. Overtime worked by office employees above three hours on a regular work day, and all overtime worked on days other than regular work days, shall be compensated for at time and one-half overtime pay rate. Overtime less than three hours daily, worked by office employees above regular work day schedules, and in excess of six hours, per bi-weekly work period, may be compensated for by overtime pay, at the discretion of the Department Head.
Overtime worked by all field employees shall be paid for at a time and one-half overtime pay rate.
Department heads, division heads designated by the City Manager, and employees in pay range 25 or above shall not receive overtime pay, but may, at the discretion of the appointing authority, receive compensatory time for time worked above normal work schedules.
Employees may request to receive compensatory time, in lieu of any authorized overtime pay. (Emphasis added.)

The terms of Section IV(4G) expressly prohibit money compensation to an employee in the pay range enjoyed by the plaintiff. The judgment of the trial court which allowed the plaintiff money compensation for overtime, notwithstanding, rests on a finding that to deny such compensation would be to force a forfeiture of a right already earned.

It is the universal rule, however, that a municipal employee may not recover compensation for work done outside his regular hours of employment or for work done outside the scope of his regular duties unless the municipality agreed to make compensation or unless authorized by a charter or statute. 62 C.J.S. Municipal Corporations § 720b. A corollary to this rule denies payment of money in. lieu of compensatory time off given for extra hours worked, unless by legislative enactment or other proper authority. McQuillan, Municipal Corporations, § 12.194a.

These general principles are given implicit expression in the decision of our courts, although a precise precedent does not appear. Thus, in Coleman v. Kansas City, 348 Mo. 916,15.6 S.W.2d $44 (1941), city employees who. had been paid by Kansas City for' extra services were required to restore that compensation because an ordinance expressly prohibited payment for such services. And, in Vestal v. City of St. Joseph, 413 S.W.2d 537 (Mo.App.1967), the recovery of salary by the airport manager from the City for services concurrently performed as personnel director was disallowed because the Municipal Code not only made no provision for such payment, but specifically prohibited such payment. In State ex rel. Forsee v. Cowan, 284 S.W.2d 478 (Mo.1955), the plaintiff a justice of the peace in his own right, sought recovery for salary while acting for another justice of the peace who was in the military. The court denied relief [l.c. 481]:

The law in Missouri is well established “that the right of a public officer to be compensated by salary or fees for the performance of duties imposed on him by law does not rest upon any theory of contract, express or implied, but is purely a creature of statute. . . . ” In so far as concerns compensation for services, there is a very imperfect analogy between services rendered by a public officer and those rendered by one individual to another in a private capacity. The law implies in the latter case a promise to pay as much money as the services are reasonably worth, whereas the compensation for services of a public officer is in most cases fixed by positive law. If the fixed compensation is more than the service is worth, the public or party must pay for it; if less, the officer must be content with it.”

The reasoning of Coleman, Vestal and Forsee, supra, but in circumstances more approximate to those presented on this appeal, is found in a number of foreign decisions. Grossman v. City of New York, 71 Misc.2d 234, 335 N.Y.S.2d 890 (1972) posed the precise issue raised by this appeal: whether in the absence of statute or other valid authority, a city employee who voluntarily left employment was entitled to money in lieu of compensatory time for overtime. In language consistent with the rationale of the Missouri decisions, the court denied recovery [l.c. 893]:

[T]he breaking of the relationship of employer and employee by the employee’s separation from service results in the loss of the right to compensatory time achieved by credited overtime; the monetary equivalent of such compensatory time cannot be obtained except under proper authority, statutory or otherwise.

In Markman v. County of Los Angeles, 35 Cal.App.3d 132,110 Cal.Rptr. 610 (1974), the claim of a deputy sheriff for cash compensation for overtime for which he had been unable to take equivalent free time was denied where the ordinance allowed money compensation only if authorized by the chief administrative officer, who in this case had withheld his approval. The court followed the general rule [l.c. 611] that:

The terms and conditions relating to employment by a public agency are strictly controlled by statute or ordinance, rather than by ordinary contractual standards; and one who accepts such employment, thereby benefiting in ways denied an employee of a private employer, must in turn relinquish certain rights which are enjoyed by private employees one such disability being that the public employee is entitled only to such compensation as is expressly provided by statute or ordinance regardless of the extent of services actually rendered.

In Campbell v. City of Troy, 42 Mich.App. 534, 202 N.W.2d 547 (1972), an action by a retired city employee for money payment for accumulated compensatory time was denied because [l.c. 549] “these ordinances and regulations do not provide for the payment of the moneys claimed”. Accord: Schoonover v. City of Viroqua, 244 Wis. 615, 12 N.W.2d 912 (1944); State ex rel. Beck v. Carter, 2 Wash.App. 974, 471 P.2d 127 (1970).

The plaintiff is conclusively barred from money compensation for overtime worked by the provisions of Section IV(4G) which prohibit overtime pay to employees in pay range 25 or above. The trial court was ill-advised to apply principles of ordinary contract law to a condition of public employment governed by legislative enactment.

The judgment is reversed.

All concur.

      . Among the contentions of the appellant City which we do not reach are (1) that the compensatory time record merely keeps account of the accrual of overtime but not the approval of the department head to allow it, and (2) that plaintiff has no standing in the courts because he failed to exhaust his administrative remedy under the Personnel Policies and Procedures adopted by the City of Independence.