author: ROBINSON, Justice.

text:
    Don MOONEY and United States Fire Insurance Company, Appellants, v. PRODUCERS GRAIN CORPORATION, Appellee.
    No. 8567.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 31, 1975.
    Gibson, Ochsner, Adkins, Harlan & Han-kins (John Huffaker), Amarillo, for appellants.
    Underwood, Wilson, Sutton, Berry, Stein & Johnson (Edward H. Hill), Amarillo, for appellee.
   ROBINSON, Justice.

Producers Grain Corporation filed a motion for damages against Don Mooney, Sheriff of Baylor County, and the United States Fire Insurance Company, the surety on Sheriff Mooney’s indemnity bond, for failure to levy execution when execution might have been levied on property of plaintiff’s judgment debtors Melvin and Kathlee Niell. Defendants, sheriff and surety, answered by general denial only. After a trial without a jury, the trial court found that the judgment debtors had property subject to execution within Baylor County at the time the writ of execution was in the sheriff’s hands; expressly held that the defense of due diligence was not tried by consent; and rendered judgment for plaintiff for the amount of the Niells’ judgment debt. Defendants appeal. We affirm.

The finding that there was property in the county subject to execution at the time the writ was in the sheriff’s hands is supported by sufficient evidence. The question before us is whether the sheriff and his surety nevertheless may prevail by showing that the sheriff used due diligence in attempting to execute the writ in the absence of an affirmative defensive pleading of excuse.

Article 3825, Vernon’s Ann.Civ.St., provides as follows:

Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties.

In U. M. & M. Credit Corporation v. Doss, 452 S.W.2d 45 (Tex.Civ.App., Dallas 1970, writ ref’d n. r. e.), the court discussed the application of Article 3825 as follows:

The plaintiff having shown prima facie, by pleading and proof, that there was property of some substantial value in the possession of the defendant subject to execution, the burden was then upon the officer either to disprove the facts shown by plaintiff (which he may do under a general denial) or, “if the facts alleged are true, and he wishes to explain or avoid them, he must aver, specially, the matters of avoidance or explanation upon which he relies.” Smothers v. Field, Thayer & Co., 65 Tex. 435, 438 (1886); Roos v. Gardner, 45 S.W.2d 633 (Tex.Civ.App., Dallas 1931, writ dism’d). By the same token, in our opinion, he would also be under the burden of both pleading and proving, if he can, in mitigation of plaintiff’s damages that a levy and sale thereunder would have produced less than the amount of the judgment. These were affirmative defenses which it was necessary for him to plead specially. Rule 94, Vernon’s Texas Rules of Civil Procedure; Smothers v. Field, Thayer & Co., supra.

Defendants cite Hackler v. Kohnstamm & Co. of Texas, 227 S.W.2d 347 (Tex.Civ.App., Dallas 1950, no writ) and Underwood v. Russell, 4 Tex. 175 (1849), for the proposition that a reasonable excuse for the sheriff’s failure to levy will be heard in spite of the fact that the language of Article 3825 is imperative and does not admit of any excuse. However, defendants cite no case in which it is shown that excuse was not pleaded but was still available to defeat liability of the officer.

We conclude that the contention that the sheriff exercised due diligence is an affirmative defense which must be both pleaded and proved if the sheriff is to rely on it to excuse his failure to levy after plaintiff has established that there was property within the county subject to execution.

We do not reach defendants-appellants’ points of error contending that plaintiff cannot recover against the sheriff for making a false return under Article 3826, V.A. C.S. We do not reach plaintiff-appellee’s counterpoints because our holding results in affirmance of the judgment for plaintiff.

Appellee’s motion to strike the statement of facts is overruled. The statement of facts includes the portion introduced in evidence of certain depositions. The depositions as a whole were not introduced in evidence. Thus, the original depositions themselves which were sent to this court along with the transcript are not properly before us and have not been considered by this court. See Spring Branch Independent School District v. Lilly White Church, 505 S.W.2d 620 (Tex.Civ.App., Houston [1st Dist.] 1973, no writ).

Affirmed.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    JO’LEE, INC. and Lee Goren, Appellants, v. Donald L. FRANCKE and Marjorie Francke, his wife, Appellees.
    Supreme Court of Kentucky.
    Jan. 9, 1976.
    Dennis J. Hummel, Louisville, for appellants.
    Henry Hopson, Louisville, for appellees.
   JONES, Justice.

Donald L. Francke and wife instituted this action against Jo’Lee, Inc., to recover damages for alleged breach of contract in the construction of a three-story addition to their house. Some 16½ months after the filing of the original complaint, the Franckes filed an amended complaint alleging that Lee Goren as a servant and agent of Jo’Lee, Inc., acting within the scope of his authority, falsely represented and warranted that the remodeling job which they purchased would be performed in a good and workmanlike manner out of sound material. The Franckes contend that Goren’s representations and warranties were material and were made knowingly so as to induce them to enter into the contract. They insist that the work performed was not in a good workmanlike manner, nor was the material used in the construction of the addition as represented by Goren.

The jury awarded the Franckes the sum of $1,000.00 in damages against Jo’Lee, Inc., and $5,000.00 against Goren, president of Jo’Lee, Inc. Jo’Lee, Inc., and Goren instituted this appeal.

Goren argues that the trial court should have sustained his motion for a directed verdict. Without determining whether the complaint as amended pleaded a claim of actionable fraud, there was no proof that Goren knew or should have known that the addition was being constructed in a faulty manner. In any event, to establish deceit the representation must be made with knowledge of its falsity or under circumstances that do not justify a belief in its truth.

The Franckes entered into the contract with Jo’Lee with eyes opened. They acquired information concerning the integrity of Jo’Lee from the vanguard of the consumer, the Better Business Bureau. They conferred with two other construction companies about the price of the construction, before contacting Jo’Lee, Inc. According to Mrs. Francke, one of the companies could not do the job; the other’s price was too high. The Pranckes signed a completion certificate. A building inspector testified that the work was completed in a satisfactory manner. Changes from the original plans were requested by Mrs. Francke. These changes were made to her satisfaction.

Although Jo’Lee, Inc., by counsel states, “Surely the Court has noticed that Jo’Lee, Inc., did not appeal for there was no error with regard to it.” (appellants’ brief, p. 28.) However, this court notes in the statement of appeal that, the appellants are Jo’Lee, Inc., and Lee Goren.

The judgment is affirmed as to Jo’Lee, Inc., and reversed as to Goren, with directions that a judgment be entered on behalf of Goren, consistent with his motion for judgment n. o. v.

All concur.


author: FINCH, Judge. SEILER, Chief Justice

text:
    Lyman Eugene WIGLESWORTH, Petitioner, v. Donald WYRICK, Warden, Missouri State Penitentiary, Respondent.
    No. 59208.
    Supreme Court of Missouri, En Banc.
    Jan. 12, 1976.

      John E. Downs, St. Joseph, for petitioner.
    John C. Danforth, Atty. Gen. (Philip M. Koppe, Asst. Atty. Gen.), Jefferson City, for respondent.
   FINCH, Judge.

This is an original proceeding in habeas corpus. We quash the writ heretofore issued for the reason that the relief to which petitioner claims to be entitled is required by Rule 27.26 to be sought by a motion filed in accordance with the provisions of that rule in the circuit court wherein the judgment and sentence attacked by petitioner were entered.

Petitioner pleaded guilty on May 15,1975, in the Circuit Court of DeKalb County to a charge of operating a motor vehicle while intoxicated, third offense, a felony under § 564.440. The information to which petitioner pleaded guilty alleged two prior convictions of driving while intoxicated, viz., (a) on December 5,1968, on a plea of guilty in the magistrate court of DeKalb County on which he was fined $100 and (b) on September 17, 1973, on a plea of guilty in the Circuit Court of DeKalb County to a charge of driving while intoxicated, second offense, on which he was sentenced to 15 days in the county jail. On his plea of guilty on May 15, 1975, defendant was sentenced to a term of three years imprisonment in the custody of the Department of Corrections. He asked that he be granted probation, which request was denied by the trial court on July 10, 1975. Shortly thereafter, defendant was delivered to the Department of Corrections and incarcerated in the penitentiary at Jefferson City.

On July 28, 1975 petitioner filed in the Missouri Court of Appeals, Kansas City District, a petition for a writ of habeas corpus alleging his imprisonment to be illegal on the grounds that (a) there was only one valid conviction against him under § 564.-440, the earlier convictions alleged in the information being invalid because he was not represented by counsel therein and there was no knowing and intelligent waiver of his right to counsel in said cases, and (b) the Circuit Court of DeKalb County had no jurisdiction to try or hear the case against petitioner on May 15,1975, because defendant previously had filed a motion for change of judge which was never acted upon and was still pending.

The Court of Appeals, on July 30, 1975, issued its writ of habeas corpus and, pending resolution of the issues raised, admitted petitioner to bail. Respondent then filed his return to the writ which asserted reasons why the May 15, 1975, judgment and sentence and the incarceration thereunder are valid. In addition to his return, respondent filed a motion to quash the writ of habeas corpus as improvidently granted on the basis that issues raised therein must be asserted in the sentencing court by a motion to vacate under Rule 27.26. That motion to quash was ordered taken with the case by the Court of Appeals.

Thereafter, while briefs were in process of preparation and before the date on which the case had been set for argument, respondent, pursuant to Rule 83.06, filed an application in this court requesting that we transfer the case here before opinion and then proceed to decide it as authorized by Art. V, § 10, Mo.Const. We sustained that application and set the case for argument on the same date it had been scheduled for argument in the Court of Appeals. We now decide the case as though the writ of habeas corpus had been issued by this court.

Does Rule 27.26 mandate that petitioner seek the relief requested herein by a motion to vacate in the Circuit Court of DeKalb County?

Necessarily, we consider at the outset the threshold issue, raised by the motion to quash, of whether petitioner was entitled to attack the validity of the judgment and sentence under which he was incarcerated by filing a petition for writ of habeas corpus in the Missouri Court of Appeals, Kansas City District, or whether, as contended by respondent, petitioner was required by Rule 27.26 to raise the issue by filing a motion to vacate in the Circuit Court of DeKalb County, the sentencing court.

Rule 27.26, insofar as pertinent to this issue, provides as follows:

“A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside or correct the same. The following procedure shall be applicable to motions filed pursuant to this Rule:
“(a) Nature of Remedy. This Rule is intended to provide the exclusive procedure which shall be followed when a prisoner in custody seeks relief on the basis of any of the attacks on a sentence enumerated above. The motion seeking such relief shall be filed in the court where the sentence was imposed. This Rule does not suspend the rights available by habe-as corpus but rather prescribes the procedure to be followed in seeking the enforcement of those rights. It includes all relief heretofore available in any court by habeas corpus when used for the purpose of seeking to vacate, set aside or correct a sentence, plus relief not available by ha-beas corpus. * * * ” •

Does the relief sought herein by the writ of habeas corpus fall within the foregoing provisions of Rule 27.26? It is clear that it does. In the first place, petitioner asserts that the two earlier convictions relied on by the State are constitutionally deficient for lack of counsel or waiver thereof. For that reason, he says that he was sentenced contrary to the provisions of § 564.440 and received a sentence not permissible in the absence of two prior valid convictions of driving while intoxicated. This collateral attack on his conviction and sentence and his incarceration thereunder falls squarely within the scope of Rule 27.26 as expressed in the portion quoted above. Likewise, lack of jurisdiction, the second ground for relief asserted in the habeas corpus proceeding, is one of the grounds for collateral attack specifically listed in Rule 27.26.

Furthermore, the intention that relief to be provided by Rule 27.26 encompasses that sought by petitioner in his habeas corpus petition is disclosed by the recital in the rule that it is to provide all relief heretofore available in any court by habeas corpus, when used for the purpose of vacating, setting aside or correcting a sentence, and that the rule simply prescribes the procedure to be followed in seeking enforcement of those rights.

We conclude that Rule 27.26 does mandate that the relief requested by petitioner herein be sought in a motion to vacate filed in DeKalb County. Hence, unless for some reason the requirement in the rule that such procedure be utilized is impermissible, it would appear that the motion to quash is well taken and should be sustained.

Is Rule 27.26 unconstitutional as a suspension of the writ of habeas corpus in violation of Art. I, § 12, Mo.Const.?

In response to the asserted exclusiveness of the procedure specified in Rule 27.26, petitioner insists that the remedy provided therein is supplementary to and provides an alternate remedy for habeas corpus. He argues that it does not and cannot provide an exclusive remedy because that would violate Art. I, § 12, Mo.Const. which states “that the privilege of the writ of habeas corpus shall never be suspended”.

What constitutes suspension as that term is used in constitutional provisions which prohibit suspension of the writ of habeas corpus? We find no Missouri case deciding this question, but it has been considered by other courts. It was discussed in McCall v. McDowell, 15 F.Cas. p. 1235, Case No. 8,673 (C.C.Cal.1867), in considering action by the President of the United States taken pursuant to legislation enacted in 1863 relative to suspension of habeas corpus under Art. I, § 9, cl. 2, of the Constitution of the United States (“The Privilege of the Writ of Habe-as Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public safety may require it.”). In that connection the court said, 15 F.Cas. l.c. 1242:

“Before answering this question, it is well to consider what is the purpose and practical effect of suspending the privilege of the writ. Personal liberty, unless forfeited by due course of law, is the right of every citizen of the republic. The writ of habeas corpus is the remedy by which a party is enabled to obtain deliverance from a false imprisonment. Ordinarily, every one imprisoned without legal cause or warrant is entitled to this remedy — this privilege. The power to suspend this privilege includes, and is in fact identical, with the power to take away or withhold this remedy from the individual during the period of such suspension. The suspension of the privilege of the writ and the denial of the remedy for false imprisonment are identical in effect, if not in terms. It follows that the power of congress to suspend the privilege of the writ of habeas corpus is equivalent to the power to take away from all persons, during the suspension, the right to the ordinary and only remedy for deliverance from false imprisonment. This is the effect of the suspension. * * *

In State v. Towery, 143 Ala. 48, 39 So. 309 (1905), the Supreme Court of Alabama had under consideration the question of whether a statutory provision violated section 18 of the Alabama Bill of Rights (Const.1875) which provided that “the privilege of the writ of habeas corpus shall not be suspended”. The court said, 39 So. 309:

“ * * * The ‘suspension’ of the writ which is prohibited means the denial to the citizen of the right to demand an investigation into the cause of his detention.”

39 C.J.S. Habeas Corpus § 123, summarizes the question in these words:

“What constitutes suspension. The suspension of the writ which is prohibited means an absolute denial of the right to demand an investigation into the cause of detention.”

It seems clear that the suspension prohibited relates to denial of the substantive right to have judicial inquiry into the cause of and justification for allegedly illegal detention, not to the form and procedure utilized in such proceeding. The provisions against suspension of such a right refér to the writ of habeas corpus because historically that has been the vehicle by which such inquiry is made. The term adequately describes the substantive right being protected and preserved.

This interpretation of the constitutional language prohibiting suspension of the privilege of habeas corpus finds support in the case of United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), in which the court considered the effect of 28 U.S.C. § 2255, the federal statute which provides for post-conviction relief for federal prisoners. The first portion of that statute provides as follows:

“A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”

Subsequent portions of the statute spell out details with reference to handling of such motions, including the right of appeal to the court of appeals, and then recite that an application for habeas corpus on behalf of a prisoner authorized to apply for relief by motion under § 2255 shall not be entertained in various situations “unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention”.

Hayman involved a motion filed pursuant to § 2255 wherein the prisoner alleged that he had not had effective assistance of counsel. He asked for an order to secure his presence at the hearing on his motion. The district court did not sustain that order and, after hearing evidence on the motion without the prisoner being present, denied relief. On appeal, the Court of Appeals ruled sua sponte that procedure under § 2255 would not be effective in this case and, in the alternative, that in precluding resort to habeas corpus, § 2255 unconstitutionally suspended the writ of habeas corpus as to the prisoner therein. It ordered the motion dismissed so that the prisoner might proceed by habeas corpus in the district of his confinement.

On certiorari the Supreme Court reviewed the problems and practical difficulties incident to habeas corpus as a post-conviction remedy vehicle which caused the Judicial Conference of the United States to recommend legislation which culminated in the enactment of § 2255. In so doing, the Court said, 342 U.S. at 219, 72 S.Ct. at 272:

“This review of the history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners’ rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.”

The Court stated that it did not find in § 2255 the “disturbing inadequacies” found by the Court of Appeals, and it reversed for a hearing of the § 2255 motion by the district court with the prisoner present.

The Court in Hayman did not reach or decide the issue of the constitutionality of § 2255. However, that issue has been ruled upon in various subsequent federal decisions. Since we have not ruled on this issue previously, we look to such decisions for assistance in deciding the question.

In Stirone v. Markley, 345 F.2d 473 (7th Cir. 1965), petitioner incarcerated in the United States Penitentiary at Terre Haute, Indiana, as a result of a conviction in the Western District of Pennsylvania, sought a writ of habeas corpus from a United States District Court in Indiana. Denial of the petition by the District Court on the basis that petitioner’s remedy under § 2255 was not shown to be inadequate or ineffective to test the legality of his detention was affirmed on appeal. Petitioner attacked the constitutionality of § 2255, saying that although it purports to be a substitute for a writ of habeas corpus, it lacks essentials of the habeas corpus procedure. These included the assertions that the procedure under § 2255 did not prescribe time requirements guaranteeing expeditious hearing and determination, did not require production of the prisoner when factual issues were presented and did not require that second or successive motions be entertained. These were discussed, after which the court, after noting that Hayman did not pass on the constitutionality of § 2255, said, 345 F.2d at 475:

“ * * * Because of this observation we have not relied solely upon the decision in Hayman but have discussed plaintiff’s contentions and conclude that section 2255 is not an unconstitutional suspension of the writ of habeas corpus.”

See also Cantu v. Markley, 353 F.2d 696, 698 (7th Cir. 1965); United States v. Anselmi, 207 F.2d 312, 314 (3rd Cir. 1953); Barrett v. Hunter, 180 F.2d 510, 516 (10th Cir. 1950).

Comparable state statutes providing for post-conviction relief in lieu of the traditional petition for writ of habeas corpus have been held not to violate constitutional prohibitions against suspension of the writ of habeas corpus. For example, in Kinnell v. Crouse, 384 F.2d 811 (10th Cir. 1967), the court held that the Kansas post-conviction statute which was quite similar to § 2255 did not suspend the writ of habeas corpus in violation of the Kansas Constitution and was not unconstitutional.

In Harvey v. State of South Carolina, 310 F.Supp. 83 (D.S.C.1970), the court considered an attack on the constitutionality of the South Carolina post-conviction statute which, it was claimed, suspended the writ of habeas corpus or made its use more difficult. In overruling those contentions, the court said, at 85:

“ * * * The South Carolina Act affords all the protections contemplated by our founding fathers. It is designed to afford post-conviction relief of a scope sufficiently broad to comply with the mandates and holdings of the United States Supreme Court relating to federal review of state convictions. See Curran v. State of Delaware, 10 Terry 587, 122 A.2d 126, cert. den. 352 U.S. 913, 77 S.Ct. 151, 1 L.Ed.2d 120. There is no basis here for a holding that South Carolina thus deprives a convict of constitutional rights. Rather he is provided a forum and procedure for speedy and easy application and early decision. The statutes are designed for the benefit of the convicted, defined for his ease in obtaining review at a state level and thus complying with 28 U.S.C. § 2254.
“South Carolina’s Post-Conviction Relief Act provides relief similar to that envisioned by Congress (for those convicted in federal courts) in 28 U.S.C. § 2255. The fact that the South Carolina Legislature enacted a post-conviction statute did not suspend the right of habeas corpus by substituting the post-conviction relief statutes (procedure) as the only remedy available to a state prisoner. See Kinnell v. Crouse, 384 F.2d 811 (10th Cir. 1967), cert. den. 390 U.S. 999, 88 S.Ct. 1205, 20 L.Ed.2d 98; United States ex rel. Dopkowski v. Randolph (7th Cir. 1958), 262 F.2d 10, cert. den. 359 U.S. 1004, 79 S.Ct. 1143, 3 L.Ed.2d 1032; Smith v. State of Kansas, 356 F.2d 654 (10th Cir. 1966).”

See also People ex rel. Anderson v. Warden, 68 Misc.2d 463, 325 N.Y.S.2d 829 (1971), and Lash v. Wright, 287 N.E.2d 255 (Ind.App.1972).

The need for and the logic of the establishment of a single, unitary, post-conviction remedy, to be used in place of other remedies (except direct review appeal) such as that provided by § 2255, Rule 27.26 and comparable statutes or rules in other states, has been recognized by the National Conference of Commissioners on Uniform State Laws in its Revised Uniform Post-Conviction Procedure Act which it approved and recommended in August 1966 for enactment or adoption in all states. In Section 1(a) thereof, it spells out the claims which may be asserted in such proceeding by a petitioner (these include those covered by Rule 27.26) and then in 1(b) provides as follows:

“This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction. Except as otherwise provided in this Act, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence. It shall be used exclusively in place of them.”

The comment which follows Section 1 discusses the question of whether such provision violates constitutional prohibitions against suspending the writ of habeas corpus and concludes that it does not. It refers to Hayman and then quotes from United States ex rel. Leguillou v. Davis, 212 F.2d 681, 683 (3rd Cir. 1954), as follows:

“It is now established, and we think correctly, that where the issues in controversy are such as have traditionally been within the reach of habeas corpus and now are cognizable by the sentencing court under Section 2255, a motion under Section 2255 normally supersedes habeas corpus and provides the exclusive remedy. . The only exception to this rule of supersession which is authorized by the language of Section 2255 occurs when ‘the remedy by motion is inadequate or ineffective to test the legality of . detention.’ ”

The comment then notes that Section 1 provides a remedy as broad as habeas corpus which is intended to incorporate and protect all rights presently available under habeas corpus and other remedies and is adequate to test the legality of detention. It points out that the change is a procedural one.

Likewise, it should be noted that the American Bar Association Project on Standards for Criminal Justice has proposed a unitary post-conviction remedy which “should take primacy over any existing procedure or process for determination of such claims”. Standards Relating To Post-Conviction Remedies, 1.1. It seems self-evident that the prestigious group which worked upon and approved this recommended Standard for Criminal Justice did not consider the plan to constitute a suspension of the writ of habeas corpus.

The validity and logic of these unitary post-conviction procedures (whether statutory or court rule) and of the cases which, in upholding them, find that they do not have the effect of suspending the writ of habeas corpus, is apparent when one stops to realize that the substantive right provided to a prisoner by the writ of habeas corpus is the right to have the validity of his imprisonment determined promptly and to be discharged therefrom if it is illegal. The particular form of such a proceeding and where it is initiated is procedural, not substantive. The particular procedural requirements specified by a state for pursuing the substantive objective are for it to determine. If they are reasonable and effective, they do not constitute a suspension of the privilege of the writ of habeas corpus. It would be illogical to hold that a particular form of proceeding labeled habeas corpus must be available to a prisoner seeking release from allegedly illegal detention to be chosen in preference to another prescribed procedure which has the same objective, protects the same rights and achieves the same results. To so hold would be to preserve and protect form rather than substance.

Another argument advanced by petitioner to support his contention that to construe Rule 27.26 as the exclusive remedy would violate Art. I, § 12, is that the remedy provided in Rule 27.26 is inadequate because it contains no provision for bail pending final determination of a claim of unlawful detention. His argument seems to be that this also results in suspension of the privilege of habeas corpus.

This contention is predicated on the premise that the privilege of the writ of habeas corpus does include a right to bail pending determination of petitioner’s right to the writ. Such premise is incorrect. In Ex parte Heath, 227 Mo. 393, 126 S.W. 1031 (1910), the court considered the meaning of the constitutional language which is incorporated in our present constitution as Art. I, § 20:

“That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.”

With reference thereto, the court said, 126 S.W. at 1035:

“We think the construction put upon the Bill of Rights in California and Texas, in which the words ‘before conviction’ are omitted, as they are in our Constitution, is the correct one. We think the language of section 24, art. 2, of our Constitution, clearly refers to the right of bail while yet there is room for presumption, and while the ‘proof evident’ is open to consideration by the court or judge to whom an application for bail is made, and not to a time when presumptions and proofs are merged in a verdict of guilty.”

This view is confirmed in Ex parte Carey, 306 Mo. 287, 267 S.W. 806 (banc 1924).

Except where the foregoing constitutional provision is applicable, the right to bail in Missouri is statutory or, when a statute is not applicable, discretionary with the court. Ex parte Heath, supra. Thus there is no constitutional right to bail in a habeas corpus case wherein a collateral attack is made on a prior judgment of conviction. Petitioner cites no cases which hold otherwise.

Rule 27.26 does not purport to deal with the question of bail. Whether and under what circumstances bail may be granted in a Rule 27.26 proceeding is not an issue in this case and we do not undertake to deal therewith.

We hold that Rule 27.26 does not violate Art.-1, § 12, Mo.Const.

Does Rule 27.26 violate Art. V, § 4, Mo. Const.?

Petitioner argues that Rule 27.26 violates Art. V, § 4, Mo.Const., which provides that “[t]he supreme court, courts of appeals, and circuit courts * * * may issue and determine original remedial writs.” He argues that under this constitutional provision he has the right to apply for relief in the nature of habeas corpus in any constitutional court of record in the state of Missouri and that Rule 27.26, in attempting to restrict that right, is unconstitutional.

We disagree. The fact that a court has jurisdiction of a particular type of case does not automatically confer on a litigant a right to have his claim litigated in that particular court. If the rule were otherwise, statutes or rules establishing venue would not be permissible. Yet it is well established that enactments fixing venue as between courts with jurisdiction are valid. The distinction between jurisdiction and venue is recognized in 21 C.J.S. Courts § 15c, in this language:

“The distinction between ‘jurisdiction’ and ‘venue’ has been plainly established and has frequently been recognized. Jurisdiction connotes the power to decide a case on the merits, while venue denotes locality, the place where the suit should be heard.”

This court is empowered by Art. V, § 5, Mo.Const., to establish rules of practice and procedure for all courts so long as the rules do not interfere with substantive rights or the right of appeal. Pursuant to that authorization, this court has adopted various rules which establish practice and procedure for original writs as well as practice and procedure in criminal and civil cases, both at the trial and appellate level. One such rule is Rule 84.22 which states that “[n]o original remedial writ, except habeas corpus, will be issued by an appellate court in any case wherein adequate relief can be afforded by an appeal or by application for such writ to a lower court.” If, as petitioner argues, Art. V, § 4, Mo.Const., gives him the absolute right to seek habeas corpus in any constitutional court of record in the state, then that same constitutional provision which applies to all remedial writs would confer on persons seeking relief by way of mandamus or prohibition, for example, the right to seek such relief in any constitutional court of record in the state. If that were true, necessarily our Rule 84.22 would be invalid as an attempted limitation on such right.

The fact is that Art. V, § 4 does not confer on persons seeking remedial writs, whether habeas corpus or mandamus, an absolute right to seek such writ in any court with jurisdiction. It simply confers the power on both appellate and circuit courts to issue and determine such remedial writs. The exercise of that power is subject to such valid rules of practice and procedure (including venue) as are enacted by the general assembly or are adopted by this court pursuant to Art. V, § 5.

Rule 84.22 does not impinge on the jurisdiction — the power of the various courts to issue and determine remedial writs. It establishes rules by which those courts are to operate in the exercise of such jurisdiction. Rule 84.22 indicates where original writs, other than habeas corpus, should be sought. Rule 27.26 establishes rules governing relief previously sought by habeas corpus where the objective is to collaterally attack a judgment and sentence must be filed.

These rules do not change substantive rights or interfere with the right of appeal. They are procedural. They prescribe the guidelines to be followed in determining whether a particular court should issue a requested remedial writ. In accordance with Rule 27.26, this court, when it receives a petition for a writ of habeas corpus which on its face, as here, seeks relief encompassed by Rule 27.26, permits the petition to be filed but then denies the writ without prejudice to the right of petitioner to seek such relief by motion under Rule 27.26 in the sentencing court. In this connection, see 20 Am.Jur.2d, Courts, §§ 108, 109, 110.

We hold that Rule 27.26 does not violate Art. V, § 4, Mo.Const.

Having determined that the motion to quash the writ of habeas corpus heretofore issued should be sustained, we do not reach or consider the attacks made by petitioner on the judgment and sentence of the Circuit Court of DeKalb County pursuant to which he was confined. Those questions may be raised by him in a motion to vacate under Rule 27.26 if petitioner elects to file such a motion.

The dissenting opinion filed by the chief justice raises additional issues which we should consider. First, he suggests that respondent’s motion to quash may not be sustained because, for purposes of the motion, the allegations of the petition must be accepted as true, and since the petition alleges that there was only one valid conviction of petitioner under § 564.440 as well as asserting that the circuit court had no jurisdiction to try petitioner by reason of a pending motion for change of judge, it states a claim which, if proved, would entitle petitioner to be remanded for resen-tencing.

This contention is based on a rule of law applicable when a motion attacking the sufficiency of a petition to state grounds for relief is under consideration. However, that rule has no application to the motion to quash filed herein because it does not attack the sufficiency of the facts alleged in the petition for habeas corpus or assert that, even if true, they would not entitle the petitioner to relief. Instead, it asserts simply that petitioner’s claim is filed in the wrong forum; that petitioner’s attack on the judgment and sentence must be asserted by a motion under Rule 27.26 in the sentencing court. Thus, this motion is comparable to a motion to quash a summons and the service thereon on the basis of improper venue or lack of jurisdiction. It is not at all similar to a motion to quash or dismiss for failure to state a claim.

The dissent next asserts that Rule 27.26 is ineffective to afford relief to this petitioner on the hypothesis that it would take longer to process a motion under Rule 27.26 in the trial court and on appeal than the length of petitioner’s sentence would be, assuming the correctness of his position. In brief, it asserts that the rule is ineffective when short sentences are involved. This, incidentally, is not a point asserted and briefed by petitioner herein. It is an attack raised sua sponte in the dissenting opinion.

We conclude that petitioner is not entitled to relief on this basis. In the first place, it is not a valid premise that one to three years would elapse before petitioner could get relief even if the evidence shows he is entitled thereto. In the event the petitioner proves in a 27.26 hearing that he did not have two prior valid convictions, we should and do assume that a trial judge would give relief. The fact that the vehicle was a motion to vacate under Rule 27.26 rather than a petition for habeas corpus would not provide a lesser or a greater inclination to do justice on the basis of the evidence presented. Furthermore, Rule 27.-26 directs that such proceedings be expedited. For example, Rule 27.26(e) provides for expedited handling of the motion when filed and for prompt appointment of counsel if required. It then calls for a hearing to be held “as soon as reasonably possible considering other urgent business of the court”. If the evidence causes the trial court to give relief to petitioner, that, in most instances, will end the matter. Appeals by the state are infrequent. If the trial court is not convinced as to the correctness of petitioner’s position, he will not give relief, but neither would he grant ha-beas corpus on such a showing. In such event, petitioner would have the right of appeal in a proceeding under Rule 27.26. Rule 27.26(k) calls for prompt preparation of a transcript if an appeal is involved. As previously mentioned herein, the procedure is essentially the same as under § 2255. That has been upheld repeatedly. See United States v. Hayman, supra; Stirone v. Markley, supra.

Finally, the dissent argues that when the remedy provided by Rule 27.26 is inadequate, it cannot be the exclusive remedy. The dissent then states that “[ujnder the allegations of the petition 27.26 is not adequate”. Accordingly, it concludes, we should proceed to hear the petition for ha-beas corpus.

If that procedure suggested by the dissent were adopted, the effect would be that whenever a petitioner, instead of filing a motion under Rule 27.26 in the sentencing court, files in some court a petition for writ of habeas corpus in which he alleges, as here, that the remedy provided by Rule 27.26is inadequate in his case, the court in which the petition was filed would be required to hold a hearing thereon. The court would grant relief, if the evidence so justified, provided it found the remedy under 27.26 inadequate. However, if after hearing the evidence, the court concluded that the Rule 27.26 remedy was inadequate, it would be obligated to dismiss the petition without prejudice to petitioner’s right to seek relief by motion filed pursuant to Rule 27.26in the sentencing court and a second proceeding and hearing would be necessary. This necessarily follows because the sole basis for seeking habeas corpus is the allegation that relief provided under Rule 27.26 would be inadequate.

Such a bifurcated procedure would be much less desirable than what we had when post-conviction relief was sought only by habeas corpus or what we now have under Rule 27.26. Such a repetitive procedure would be time consuming and expensive and would nullify what we sought to and have up to now accomplished by the adoption of Rule 27.26. It would eliminate any reason for continuing Rule 27.26.

If at sometime in the future a petitioner is successful in proving in connection with a motion under Rule 27.26 that said procedure is inadequate to give him relief, we can and will consider taking appropriate steps to rectify that situation. Inadequacy has not been shown to be present in this case and to our knowledge has not been established in any of the many other cases filed and heard during the period in which amended Rule 27.26has been utilized.

Accordingly, we sustain respondent’s motion to quash. The writ of habeas corpus is quashed and petitioner is remanded to the custody of respondent.

MORGAN, HOLMAN, BARDGETT, HENLEY and DONNELLY, JJ., concur.

SEILER, C. J., dissents in separate dissenting opinion filed.

SEILER, Chief Justice

(dissenting).

The majority opinion disposes of this proceeding by sustaining respondent’s motion to quash. The respondent to whom a writ of habeas corpus is addressed can attack the petition if he desires by a motion to quash the writ. State ex rel. Chase v. Calvird, 324 Mo. 429, 24 S.W.2d 111, 114 (1930). But on a motion to quash the writ, the allegations of the petition are deemed admitted. 39 C.J.S. Habeas Corpus § 86, p. 650. A motion to quash tests the sufficiency of the petition for the writ. State ex rel. Stack v. Grimm, 239 Mo. 340, 143 S.W. 450, 454 (1911).

The principal opinion says the foregoing has no application because the motion to quash in this instance “asserts simply that petitioner’s claim is filed in the wrong forum”; that it must be asserted by motion under rule 27.26 “in the sentencing court.” In my view, this still is saying to petitioner that no matter whether everything you say is true, you cannot use habeas corpus. Suppose the judgment and sentence in this case had been entered in the circuit court of Cole county, which is also the location of respondent in charge of the state penitentiary. If petitioner under these circumstances were to file habeas corpus in the sentencing court, so that there could be no question of venue or jurisdiction, the state would continue to argue, I am sure, that habeas corpus was not available, that petitioner must resort to rule 27.26 in the same court. Venue has nothing to do with what we are discussing, in my opinion. The point is that even if everything petitioner says is true (whether by force of its being regarded that way on motion to quash, or whether by virtue of its making no difference even if it is true), it is the position of the principal opinion and the state that petitioner must nevertheless proceed by motion under rule 27.26.

If we take the allegations of the petition to be true, then there was only one valid conviction against petitioner under Sec. 564.440, the earlier convictions alleged in the information being invalid because petitioner was not represented by counsel and there was no knowing and intelligent waiver of his right to counsel in said cases, and the circuit court had no jurisdiction to try or hear the case against petitioner under which he is currently sentenced because he had previously filed a motion for change of judge which was never acted upon and was still pending.

If the foregoing is true, then petitioner could not legally have been convicted of a third offense, a felony, under Sec. 564.-440(3) and sentenced to three years in the custody of the department of corrections. The most he could have been convicted of would have been a misdemeanor, under Sec. 564.440(1), and the maximum imprisonment would have been six months in the county jail.

So if the facts alleged in the petition are true (as we must take them to be on a motion to quash), then the only adequate relief here is to sustain the petition, grant the writ, and remand petitioner to the custody of the sheriff of DeKalb County for delivery to the circuit court for sentencing under See. 564.440(1), after disposition of the application for change of judge.

To remand petitioner to the custody of respondent and leave petitioner to the procedure of filing a motion in the appropriate circuit court for relief under rule 27.26 is not adequate. It will take anywhere from one to three years for petitioner’s motion to work its way through the trial and appellate courts. During all this time petitioner will be imprisoned in the state penitentiary. It is self-evident this is not adequate relief for a man who, if what he alleges in his petition is true, could not be subject to imprisonment for more than six months and that in the county jail, not the state penitentiary. Under the allegations of the petition, petitioner cannot legally be held in the state penitentiary and respondent is illegally depriving petitioner of his liberty (or would be if petitioner were not on bail at the moment).

The question whether the rule 27.26 procedure is ineffective in general when a short sentence is involved is not before us (although it may well be that it is). Here the question is a six months sentence versus a three year sentence. Some would regard either as long; others would regard either as short. But short or long, if petitioner is correct in his claim (and at the moment the state’s position is that he can be, but if so, it is immaterial), only by resort to habeas corpus can he obtain the prompt relief which is essential if his right to be free of illegal confinement is to be more than a right in name only.

I am unable to see where permitting ha-beas corpus in this case would commit the courts to some sort of bifurcated procedure. If what the petitioner alleges is true, it does not require a hearing to realize that a motion under 27.26, with all its delay and litigation at all levels of the court system, is inadequate. The mere allegation that the 27.26 route is inadequate would, of course, be no more than a conclusion, and in many instances petitioner will not be able to state facts to support the conclusion. In such instances no factual hearing would be required, anymore than is the case in 27.26 motions where only conclusions are alleged, Parsons v. State, 528 S.W.2d 162, 163 (Mo.App.1975). But when the petitioner states facts, as here, which show the 27.26 method is inadequate, it will save time in the long run, not waste time, to let petitioner proceed in habeas corpus if he can establish his facts.

I therefore respectfully dissent and would overrule the motion to quash.

I do however, agree with what I take to be implicit in the final part of the principal opinion that only when the remedy provided by rule 27.26 is adequate can it be considered exclusive. 28 U.S.C. Sec. 2255, which the principal opinion states has repeatedly been upheld, contains, it should be noted, an express provision allowing resort to habeas corpus when the remedy by motion is inadequate or ineffective. Where the remedy it provides is not adequate, then it follows that rule 27.26 cannot be exclusive, because otherwise it would be acting as a bar to resort to habeas corpus, in violation of Art. I, Sec. 12, Mo.Const. Ha-beas corpus . is a high prerogative writ, the vital purposes of which are to obtain immediate relief from illegal confinement, to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody. In other words, the writ was designed for the purpose of effecting a speedy release of persons who are illegally deprived of their liberty . . .”39 Am.Jur.2d, Habeas Corpus, Sec. 1, p. 179. Under the allegations of the petition, rule 27.26 is not adequate and the relief sought is not “encompassed” by the rule. As has oft been said, justice delayed is justice denied. Only ha-beas corpus can produce the speedy relief to which petitioner is entitled in this matter involving his individual freedom.

      . All references to rules are to Supreme Court Rules V.A.M.R.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . Section 2255 was the source from which the original Rule 27.26, adopted in 1952, was taken. That rule was superceded September 1, 1967, by an expanded and more detailed Rule 27.26, which is the presently existing rule.

      . See also Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).

      . The court noted that § 2255 also provides for habeas corpus to be available when the remedy under § 2255 is shown to be “inadequate or ineffective,” saying that when this is true there is no constitutional issue; but that statement was given as an additional ground for the result, not a qualification of the ruling that the section, in requiring use of the remedy provided therein rather than habeas corpus, does not violate the constitutional prohibition against suspending the privilege of habeas corpus and is constitutional.

      . Much of that proposal is contained in Art. 440 of the Criminal Procedure Law of the state of New York, its statutory post-conviction procedure, which was considered by the court in People ex rel. Anderson v. Warden, supra. The court notes that the new motions to vacate judgment “embrace” all previous collateral attacks, including ha-beas corpus.

      . The official note to Rule 27.26 recognizes, as did the Judicial Conference of the United States in recommending § 2255, the advantage of requiring that the proceeding be filed in the sentencing court where the records are kept and more than likely the witnesses are located. In addition, appellate courts are not well adapted to holding frequent evidentiary hearings. Holding them at the trial court level is much more satisfactory.

      . For a good discussion of bail in habeas corpus cases wherein a post-conviction collateral attack is made, see Glynn v. Donnelly, 470 F.2d 95 (1st Cir. 1972).

      . In this connection it should be noted that in 39 C.J.S. Habeas Corpus § 86, cited in the dissenting opinion, the discussion involved a motion to quash which attacked the sufficiency of the allegations in the petition. That section does not concern itself with a motion which raises the issue of venue. Thus, it does not support application of the rule in this instance.

      . I do not believe an estimate of from one to three years for petitioner’s motion to work its way through the trial and appellate courts is unrealistic. Time does not permit a more thorough survey, but of the 27.26 cases which appear in the last ten volumes of the Southwestern Reporter Second which contain facts sufficient to permit an accurate determination, the average time from filing of motion to disposition of appeal is over twenty five months. Of these cases, only one case took less than one year, three months and several took over three years. If we include time required for motions for rehearing and transfer to this court, the average would be increased another two or three months. I agree that if petitioner proves that he did not have two prior valid convictions, “we should and do assume that a trial judge would give relief.” But this does not mean the state will agree and will not appeal. The state has an absolute right to appeal under 27.26(j), whereas there is no appeal in habeas corpus. Jones v. State, 471 S.W.2d 166 (Mo. banc 1971). The principal opinion says appeals' by the state in 27.26 cases are infrequent, but this is probably due to the fact that it is infrequent that the petitioner prevails in the trial court, so that it is seldom that the state has occasion to appeal. Anderson, Post-Conviction Relief in Missouri — Five Years Under Amended Rule 27.26, 38 Mo.L.Rev. 1 (1973).
      Despite the provisions of rule 27.26 cited in the principal opinion calling for prompt disposition of 27.26 motions, we have seen a good many instances where such motions have moved rather slowly. Certainly there is no guarantee that petitioner can obtain a final disposition of his claim within six months by proceeding under rule 27.26. It seems to me the principal opinion does not meet the question of what if it does take more time to process the 27.26 motion than the maximum time petitioner must serve if he turns out to be right in his claim. How can such a remedy be adequate, when it cannot do what habeas corpus can do in a short time if petitioner’s claim is valid?


author: DONNELLY, Judge. FINCH, Judge HENLEY, Judge HOLMAN, Judge

text:
    STATE of Missouri, Respondent, v. Dirk Allen WADE, Appellant.
    No. 58159.
    Supreme Court of Missouri, En Banc.
    Jan. 12, 1976.
    As Modified On Denial of Rehearing Feb. 9, 1976.
    Stanley E. Goldstein, Dan Hayes, Hayes & Heisler, Clayton, for appellant.

      John C. Danforth, Atty. Gen., Paul Otto, Asst. Atty. Gen., for respondent.
   DONNELLY, Judge.

Appellant, Dirk Allen Wade, was convicted of first degree murder by a jury in the City of St. Louis. He was sentenced to life imprisonment on October 27,1972. He filed his notice of appeal on November 3, 1972. We retain jurisdiction on the basis of our order entered April 9, 1973, following our decision in Parks v. State, 492 S.W.2d 746 (Mo. banc 1973). We reverse and remand.

Ernest Gutzmann was shot between 1:00 and 1:30 a. m. on the morning of October 24, 1970, near the corner of Union Boulevard and Harney Avenue in St. Louis, Missouri. He died from the gunshot wound on October 30, 1970.

Appellant was indicted for the murder of Ernest Gutzmann on April 27, 1971. He filed a motion to suppress statements on May 17, 1971. Evidence adduced at the pretrial hearing on this motion to suppress showed that appellant was arrested at 4:10 p. m., December 29,1970, in connection with a robbery. Appellant was transported to the Sixth District police station. The arresting officers testified that on the way to the station appellant was questioned about his age; that he responded that his birth date was January 24, 1953; and that in response to a statement by one of the officers, appellant agreed that he was seventeen. He was, at the time of the arrest, sixteen years of age.

While being transported to the police station, appellant was informed of his constitutional rights and indicated that he understood them.

Upon arriving at the Sixth District station at 4:25 p. m., appellant was taken to an interrogation room. Two other officers (Qualls and Murphy) joined the two arresting officers (Hoyer and Happe) in the interrogation room. After approximately half an hour of interrogation, the officers asked appellant if he had anything to say about other crimes. According to the officers’ testimony, appellant stated that he had shot a man at the corner of Union and Harney. At this point, the homicide division was called in.

Officers Tumminello, Hummert and Dowd from the homicide division arrived at the Sixth District station at 5:15 p. m. and questioned appellant for approximately fifteen minutes. These officers had been informed by the Sixth District officers that appellant was seventeen years old and did not inquire further about his age. Before these officers questioned appellant, they again informed him of his constitutional rights and informed him that he was a suspect in the shooting death of Ernest Gutzmann. Appellant then made an oral statement to the officers implicating himself in the Gutzmann crime. Following this statement, the homicide detectives took appellant to Central Headquarters. A records check there revealed that appellant was sixteen years of age. Officer Tumminello immediately called appellant’s mother and had appellant conveyed to the Juvenile Center.

The State’s evidence consisted primarily of Officer Tumminello’s testimony regarding the confession appellant made to him. This confession was never reduced to written form. Appellant contends that the confession is inadmissible because of noncompliance with § 211.061(1), RSMo 1969. This section reads as follows:

“1. When a child is taken into custody with or without warrant for an offense, the child together with any information concerning him and the personal property found in his possession, shall be taken immediately and directly before the juvenile court or delivered to the juvenile officer or person acting for him.”

A “child” is a person “under seventeen years of age.” § 211.021(2), RSMo 1969. The jurisdiction of the juvenile court attaches from the moment the child is taken into custody. § 211.131(3), RSMo 1969.

Appellant contends that these sections render inadmissible any statement given by him between arrest and delivery to the juvenile authorities.

The State contends that appellant wilfully misrepresented his age to the officers and thereby “waived his right” to be turned over to the juvenile authorities before questioning.

Appellant relies on State v. Arbeiter, 408 S.W.2d 26 (Mo.1966). In Arbeiter a fifteen-year-old boy was taken into custody and questioned by police before being taken to the juvenile authorities pursuant to § 211.-061(1). The officers in Arbeiter knew the defendant was fifteen but felt it was not necessary to comply with § 211.061(1). This Court reversed the conviction on the grounds that the statements given before the defendant was taken to the Juvenile Center were inadmissible.

The State recognizes the impact on this case of the Arbeiter holding but seeks to distinguish it on the ground that appellant misrepresented his age and thereby “waived his right” to insist on the provisions of § 211.061(1). In support of this contention, the State cites several cases which hold that a juvenile’s misrepresentation of his age constitutes a waiver of his “right” to be treated as a juvenile.

In United States v. Lovejoy, 364 F.2d 586 (2nd Cir. 1966), there were three codefend-ants. One was a juvenile (Carter) who misrepresented his age through trial. After a verdict was returned, it was vacated as to Carter, and the two adult defendants sought to set aside their convictions on the grounds that Carter’s statement was inadmissible. A federal statute (18 U.S.C. § 5035) required that a juvenile be taken to the juvenile authorities unless jail detention was necessary. The court held that in “view of the arresting officer’s ignorance as to Carter’s age, the detention of Carter did not constitute such a violation of this section as to make his statement inadmissible.”

In Penn v. Peyton, 270 F.Supp. 981 (W.D.Va.1967), petitioner was tried and convicted as an adult. Both petitioner and his father misrepresented petitioner’s age through trial. After conviction, petitioner sought ha-beas corpus because no investigation was made to determine if he should be tried as an adult. The court held that he had waived his statutory right to an investigation by his wilful misrepresentation. The court reasoned that to permit a juvenile to insist on being treated as a juvenile after wilfully being tried as an adult would allow juveniles to take their chances in adult courts and, if convicted, to try again in the juvenile system. This was seen as an abuse of the Juvenile Code. Another case following this theory is Sheppard v. Rhay, 73 Wash.2d 734, 440 P.2d 422 (Wash.1968). Rhay was also a case where the juvenile sought relief after trial as an adult.

There are several other cases where courts have refused to afford a juvenile the protections of the Juvenile Code when the juvenile misrepresented his age through a plea of guilty or trial and then sought to set aside the conviction. See State v. Superior Court of Pima County, 7 Ariz.App. 170, 436 P.2d 948 (1968); People v. Henderson, 2 Ill.App.8d 285, 276 N.E.2d 377 (1971); People v. Walker, 19 Ill.App.3d 798, 313 N.E.2d 217 (1974).

The rationale of all these cases is that a juvenile should not be allowed to use the Juvenile Code as both a shield and a sword; that a juvenile should not be allowed to wilfully misrepresent his age, be tried as an adult, and then, if convicted, try again at the juvenile level.

We need not decide in this case the position we would take if presented with a case of continuing misrepresentation which constitutes an abuse of judicial process. In any event, we do not believe the cases cited by the State are directly in point on the question confronting us in this case.

We believe the Juvenile Code recognizes the incapacities of persons under seventeen years of age, and intends that a child shall be provided with the assistance of a juvenile officer or other juvenile court personnel before he is subjected to the rigors of police interrogation. We doubt the capacity of an offender under seventeen years of age to legally effect a waiver of any kind in the absence of such a person.

In State v. Wright, 515 S.W.2d 421, 430, 431 (Mo. banc 1974), this Court stated the rule “that if, after he has been granted his federal constitutional Fifth and Sixth Amendment rights, a juvenile subject to jurisdiction of the juvenile court makes a voluntary statement to someone other than a juvenile officer or other juvenile court personnel, and if it is made clear to the juvenile that criminal responsibility can result from any statement he makes and that the questioning authorities are operating as his adversaries rather than his friends, such statements are admissible in evidence against the juvenile in a criminal trial.”

The Court then said:

“The rule we adopt does not make juvenile proceedings a mere adjunct to the criminal process nor nullify the juvenile code or its effectiveness. Sec. 211.061 requires that immediately after being taken into custody, the juvenile shall be taken before the juvenile court or delivered to the juvenile officer or person acting for him. Compliance with that statutory requirement protects the juvenile against interrogation before such delivery. Arbeiter (1), supra [408 S.W.2d 26]. Thereafter, the juvenile is subject to jurisdiction of the juvenile court and whether he is interrogated by other than juvenile court personnel depends on whether permission is granted for such interrogation by juvenile court personnel. In most juvenile proceedings, this question will not arise. Where it does not, any statement made will be to the juvenile officer or other juvenile court personnel and under § 211.271(3) will not be usable other than in the juvenile court. In more serious crimes, a request by police personnel to interrogate may well be made. When it does, a decision will be made by juvenile authorities, based, no doubt, on the nature and seriousness of the alleged offense, the record and history of the juvenile himself, and other pertinent facts and circumstances. If questioning is permitted, the juvenile authorities are in a position, as here, to see that the juvenile’s rights are fully explained and protected, that he understands those rights, and that he is aware of the potential consequences of any statement he may make. Use in criminal trials of voluntary statements made under such circumstances will not violate any confidence or undermine or destroy the parens patriae relationship existent when only the juvenile and juvenile court personnel are involved.”

,The idea that an attempt should be made to rehabilitate offenders under seventeen years of age, rather than merely punish them, is settled public policy, declared by statute and case law in Missouri. “The purpose of the Juvenile Law is not to convict minors of criminal acts, but to safeguard and reform children that may have erred * * *.” State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37, 38 (1933). The idea of rehabilitation was conceived, rightly or wrongly, as a procedure for dealing with juvenile offenders which would be of maximum benefit to society. Section 211.061(1) represents a statutory mandate which must be followed when dealing with offenders under seventeen years of age.

We do not believe that a misrepresentation as to age, in the circumstances of this case, is sufficient to remove the need for protection and special treatment foreseen and mandated by the General Assembly. The Juvenile Code intends that no statement shall be made to police by a person under seventeen years of age before the child is taken to juvenile authorities. To hold the statement admissible here would permit the State to obtain and use what the Code refuses.

We hold the trial court erred in admitting Officer Tumminello’s testimony regarding the confession appellant made to him.

We are unable to conclude on the record before us that it would not be reasonably possible for the State to adduce additional evidence at another trial. Accordingly, the cause should be remanded for new trial rather than reversed outright. State v. Patton, 308 S.W.2d 641, 644 (Mo. banc 1958).

The judgment is reversed and the cause remanded.

SEILER, C. J., and MORGAN and BARDGETT, JJ., concur.

FINCH, J., concurs in separate concurring opinion filed.

HENLEY, J., dissents in separate dissenting opinion filed.

HOLMAN, J., dissents in separate dissenting opinion filed and concurs in separate dissenting opinion of HENLEY, J.

FINCH, Judge

(concurring).

I concur in the principal opinion.

The cases relied on by the State, of which Penn v. Peyton, 270 F.Supp. 981 (W.D.Va.1967), is typical, involved instances in which a juvenile willfully misrepresented his age from the time of arrest through his trial and conviction as an adult after which he sought relief on the basis that he was a juvenile and subject to the juvenile code. I have no trouble with those cases. Any different treatment of willful misrepresentation of his age until after trial and conviction would permit an unacceptable abuse of process.

The foregoing cases are not applicable to the situation with which we deal. Not only did the officers learn the correct age of the appellant that very afternoon but, in addition, there is nothing to show that appellant willfully misrepresented his age to the officers. Many of us have observed instances of people who have no purpose to mislead being temporarily confused as to the year of their birth and their exact age. This appellant could have made an honest mistake in stating the date of his birth to the officers. Under such circumstances, I am unable and unwilling to conclude that appellant did something which would result in the admission of his oral statement to the officers in contravention of the rule previously announced by this court in State v. Arbeiter, 408 S.W.2d 26 (Mo.1966).

Furthermore, what occurred during that short period on the afternoon appellant was arrested need not have hampered or seriously delayed investigation of the offense by the officers. As soon as the officers learned appellant’s correct age, they promptly and properly had him conveyed to the juvenile center, presumably because they knew that the juvenile code as interpreted in Arbeiter so required. Presumably, the officers also knew or at least they should have known that under Arbeiter they were not permitted to interrogate a juvenile before delivering him to the juvenile authorities. Accordingly, they should have known or had reason to suspect that the oral statement they had just taken from the juvenile was not likely to be admissible in evidence. With that knowledge they could have sought leave from the juvenile authorities to interrogate appellant under proper circumstances as was done in State v. Wright, 515 S.W.2d 421 (Mo. banc 1974). Such procedure would have avoided any serious delay or handicap as a result of the mixup in age and would have permitted the officers to pursue and complete their investigation promptly.

I agree with Judge Henley that the courts are confronted with a difficult problem caused by insufficient facilities and personnel to provide the special treatment and rehabilitation contemplated by the juvenile code. An additional factor increasing the problem of the courts arises from the necessity of trying to handle juveniles on the basis of a parens patriae relationship while at the same time granting to the juveniles the adversary rights to which they have been held to be entitled. Obviously, it is difficult to be an adversary (such as exists in a criminal proceeding) and at the same time maintain the relationship of a parent. However, such changes as are to be made, whether in the relationship or in personnel and facilities for handling juveniles, must come by legislative action, not by a change in judicial interpretation of the existing statute. Accordingly, I concur.

HENLEY, Judge

(dissenting).

I respectfully dissent. I would hold that a voluntary inculpatory statement made to the police by a child described in § 211.071 of the juvenile code is admissible in evidence at his trial for the commission of an offense with which he is charged under the general law.

In 1966, we construed § 211.061 to require the exclusion of an incriminating statement elicited from a fifteen-year-old child by the police while in their custody. State v. Arbeiter, 408 S.W.2d 26, 30[3]. That section of the code requires that when a child is taken into custody by the police they deliver him immediately to the juvenile court or juvenile officer; it does not mention evidence or its admissibility.

The court said in Arbeiter, supra, referring to and quoting from an Arizona case, that the philosophy of our juvenile code is that in the majority of cases involving criminal offenses by a child “ * * * there is both a responsibility and an opportunity for the state, through special treatment in a non-criminal proceeding, to redirect and rehabilitate these young people * * that “[t]his operates for the benefit of the individual, and for society as a whole * * that one of the purposes of § 211.061 was to protect the child from the effects of interrogation by the police which was said to be “adverse” to any rehabilitative efforts by the state; that to enforce this purpose of § 211.061 it was necessary to exclude from the evidence any statement obtained from the child by the police during the period when they were disregarding the command of § 211.061 that the child be delivered immediately to juvenile authorities. The court also recognized in Arbeiter, supra, as does our juvenile code in § 211.-071, that there are persons within the chronological classification of “child” who are not in fact “children,” and for whom special treatment under the juvenile code is futile. Among these is the particular individual the juvenile court has determined, after a hearing, is not susceptible of redirection or rehabilitation, “is not a proper subject to be dealt with under the * * * [juvenile code],” and, therefore, may be prosecuted under the general law as an adult. There is no reason for excluding from evidence at his trial under the general law any statement made to police by this person, so long as the statement is voluntary, because he was not a proper subject for rehabilitation efforts by the state in the first place; he is one of those, the juvenile court has determined, for whom special treatment under the juvenile code is, and was at the time he was taken into custody, futile.

There may be some reason for the Arbeiter exclusionary rule where a child susceptible of rehabilitation is retained under the jurisdiction of the juvenile court for treatment, but there is none where he is released for prosecution as an adult. As to the theory that a purpose of § 211.061 is to protect the child for rehabilitation, I dare say the “effect” of an interrogation by the police would be no more adverse to the success of rehabilitative efforts by the state than would the child’s living with the fact that he had taken the life of another human being. Furthermore, as to the so-called “responsibility and opportunity” of the state to rehabilitate these young people, there has been, so far, little more than lipservice recognition by the state that this is the philosophy of the juvenile code. True, there have been efforts in this direction by many, but the steady yearly increase of violent crime in Missouri committed repetitively by children 12 years of age and older refutes any notion that the state has the trained personnel and the facilities adequate for the task. We provide little more than “warehousing.” Until a sustained intensive effort is made and we have secured sufficient trained personnel and facilities to provide the special treatment referred to, it may not be said that Missouri is truly committed to rehabilitation.

I concurred in the Arbeiter decision, but am convinced now that it is not sound and would overrule it and its progeny.

In the instant case, the juvenile court has determined that defendant was not a proper subject to be dealt with under the juvenile code. The circuit court has determined that the statement he gave police was voluntary and admissible in evidence. For the reasons stated, I would hold there was no error in admitting the statement and would affirm the judgment.

HOLMAN, Judge

(dissenting).

I respectfully dissent. It fe my view that defendant’s misrepresentation of his age to the arresting officers would preclude his reliance upon Section 211.061(1), V.A.M.S., and State v. Arbeiter, 408 S.W.2d 26 (Mo.1966) during the period from the time of said misrepresentation until his actual age was discovered by the officers.

I would accordingly affirm the judgment of conviction.

PER CURIAM.

In a motion for modification of the opinion herein or for a rehearing, the State argues that the opinion uses broad language which at least arguably would apply to situations and questions not presented or briefed on this appeal. The opinion should not be so construed. This case presented the issue of whether in the circumstances disclosed by the evidence the statement obtained by the officers by interrogating appellant Wade was admissible. We have held that it was not. We have not ruled or decided issues or situations not here involved. Respondent’s motion to modify or for a rehearing is overruled.

      . References to sections of the statutes are to RSMo 1969 and V.A.M.S.

      . State v. Shaw, 93 Ariz. 40, 378 P.2d 487 (1963).