author: PRITCHARD, Presiding Judge.

text:
    Sharon HENDERSON et al., Appellants, v. W. C. HAAS REALTY MANAGEMENT, INC., et al., Respondents.
    No. KCD 28008.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 30, 1978.
    Application to Transfer Denied March 13,1978.

      Lloyd S. Heilman, Kansas City, for appellants; Achtenberg, Sandler, Balkin & Hellman, Kansas City, of counsel.
    Glenn E. McCann and Stephen D. Manz, and John H. Foard, Kansas City, for respondents; Knipmeyer, McCann, Fish & Smith, and Foard & Foard, Kansas City, of counsel.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   PRITCHARD, Presiding Judge.

Upon their submission to the jury by Instruction No. 2 of their theory of breach of an implied warranty of habitability, appellants recovered separate verdicts for fire losses against respondents as follows: Millie Shaffer, personal injuries, $2,000.00, property damage, $6,916.00; Sharon (Henderson) Parr, property damage, $13,200.00; and Billie and Virginia Putnam, property damage, $10,000.00. Appellants were tenants in the Monticello Manor Apartments, 8335-8337 Lowell, Overland Park, Kansas, owned by individual respondents, William C. Haas, William S. Halverhaut, and Irene D. Ellege, and which was managed by respondent, W. C. Haas Realty Management, Inc. The 20-unit apartment was destroyed by fire on October 10, 1971.

The trial court sustained respondents’ after-trial motion for judgment notwithstanding the verdicts, and entered judgment for respondents in accordance with their motion for directed verdict made at' the close of all the evidence. As relevant to the submission of Instruction No. 2, paragraph 3 of the motion is: “Plaintiffs’ evidence fails to make a submissible case against defendants on the grounds that defendants are liable for breach of implied warranty and that such breach caused plaintiffs’ damages.”

The 8335-8337 Lowell building faced west, and there was a fire wall separating the 10 units on the north (8335) from the 10 units on the south (8337), which was the portion south of the fire wall, where all appellants lived. The buildings were all electric for heating, cooling and cooking facilities. 8337 had 4 apartment units on the ground level, one in each quadrant; 4 apartment units on the second floor; and 2 basement apartment units which had windows on the east or back side of the building. To the west of the two basement apartments were common areas for storage, coin operated washing machines, fuse boxes and walkways.

William Brown, of Control Service Company, was called on an emergency basis on Saturday night, October 9, 1971, because there was no heat in the 8335-8337 building. Working from 5:00 p. m. until 9:00 to 10:00 p. m. that night, he replaced a 200 amp fuse in the boiler, locating no problem, and the heating unit was cycled through 4 to 5 functions, taking only 4 to 5 minutes per cycle. The system was switched from cooling to heating at that time.

Millie Shaffer was the first to discover the fire shortly before 5:00 a. m., October 10,1971, when she heard a sound like chains rattling at her front door. She lived in the basement apartment, northeast quadrant, adjacent to the fire wall. When she got out of bed and reached her living room, Millie found it full of smoke and heard “snapping, popping, cracking and roaring” overhead. She aroused her children and went to the door of her apartment leading to an inner hallway, but was driven back by black smoke which billowed into her apartment. She saw no flame at all. Two of her children had made it to the outside, and Millie and another child escaped through a back basement window to a parking lot. Millie left the area to deposit her children with a friend, and returned at 6:00 a. m. She later saw the front, west quadrant, of the building collapse, which was over the laundry and storage area.

Audrey Nelson lived on the first floor northwest, just over the washing machine and storage areas of the basement. She was awakened by a clanging sound in the floor. She got out of bed and felt heat in the floor. The inner hallway from her apartment door was filled with rolling smoke as was her living room. She saw no flames. Water pipes from overhead in the kitchen had burst and hot water was coming from overhead. She opened her apartment front door again, but was met with intense heat which burned her eyebrows, face and hair. With the aid of a hammer, she opened her front window and screen and escaped.

The Putnams, occupying the first floor apartment southeast, were awakened by the rattling and banging of pipes. Mr. Putnam opened the door to their apartment and saw the hallway full of smoke. He closed the door and the two escaped through their balcony, then dropping down to the sloping driveway to the parking lot. Mr. Putnam saw flames at 9:30 a. m. which were then in the basement of the laundry area.

Overland Park Fire Chief, James Broock-erd, arrived at the scene at 5:00 a. m., and saw that the front whole hallway, about 8 feet wide, which ran from the front to the rear of the building “was involved in, the flame was just rolling in there and . . ” This meant that the flames were generating a lot of heat, but the flames were knocked down with two 1½ inch hoses in less than 30 seconds. Later, Chief Broock-erd opened the basement door and then knew where the fire was because he could hear it popping and cracking to his right, or horthwest, which was the washing machine and storage area. The firefighters reported that the fire was above them in the basement lapping or seeping out of the sheet-rock here and there. From the color of the smoke, Chief Broockerd testified that it was a wood and insulation fire, and he determined that the fire was running through the floors and up through the walls, but it was not visible for over two hours, as confirmed by the resultant collapse of the building. After two hours, the floor of the first floor apartment northwest, above the laundry and storage area, first fell in, and then the first floor southwest fell in. From all the facts, Chief Broockerd determined that the fire had been in the basement inter-ceiling area in the northwest corner (8337) above the storage and laundry common area. He testified further: “Q Chief, now, of the electric wires, the water pipes and vent pipes that run through the floors and up the walls, which one of those systems is capable of starting fires? A Well, just the electric ones. Q Now, if this is an all electric building, with electric water heaters in each one with wires running through the walls and to each and every apartment, does that have a tendency to increase the amount of wires in that building? A Yes, sir, it would.”

The Fire Captain’s report contained this statement: “The cause is unknown, but the fire started in the basement ceiling and spread through the floors and into the walls and the attic, there was no visible fire in any part of the building until it started collapsing.” A report concerning unburned items in the basement stated that no (storage) locker showed burning from doors down to the floor, and that a metal trash container contained an unburned Snowy Bleach box and dryer lint.

The heating system in the building was a chilled or heated water system running throughout the building, with an electric blower in each apartment. There was an outside compressor and thermometer which regulated the use of hot or cold water. Air conditioning problems had existed in the summer on four occasions up to September 1 when the compressor controls were jump-ered to go around a defective compressor.

Without doubt an implied warranty of habitability of leased premises exists in present day law as to the relation between landlords and tenants. See Steele v. Latimer, 214 Kan. 329, 521 P.2d 304 (1974); King v. Moorehead, 495 S.W.2d 65 (Mo.App.1973); and importantly, the extensive analysis in Old Town Development Company v. Langford, 349 N.E.2d 744 (Ind.App.1976) [wherein the petition for transfer to the Indiana Supreme Court was dismissed by stipulation on September 26, 1977].

The determinative issue here is, however, whether appellants made a submissible case of a breach of an implied warranty of habitability of the apartments where they resided prior to the fire of October 10, 1971. The first facet of this issue is whether appellants proved the cause of the fire from a defective condition (wiring) in the common areas of the apartment complex. The second facet is whether respondents (landlords and manager corporation) had, or were required to have, constructive notice or knowledge of any defect in the premises (wiring) under the theory of implied warranty of habitability of the leased premises.

As to the first facet, appellants urge a theory akin to the doctrine of res ipsa loqui-tur cases, applicable in proved circumstances under the leading case of McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559[1] (Mo.banc 1932), and the many eases following it, to create an inference of negligence. Appellants say, in effect, that the same consideration of circumstances creates an inference as to the existence of a defect, and hence an inference of a breach of an implied warranty of habitability of the premises in question. It is unnecessary here to treat an extension of the res ipsa doctrine to warranty cases. In Frumer and Friedman, Products Liability, § 16.-03[4][b][i], it is said, “We discussed in § 11.01 supra the drawing of reasonable inferences in connection with causation in fact in negligence cases, pointing out that negligence and causation in fact are sometimes confused by the courts. Obviously, the same reasonable inferences as to causation in fact may be drawn in warranty cases, as are drawn in negligence cases. The courts have said that the doctrine of res ipsa loquitur relates to cases involving negligence and has no application to an alleged breach of warranty. But, as discussed in § 16.01[1] supra proof of negligence is unnecessary in a warranty action, so that when the courts talk about res ipsa being inapplicable in a warranty action and hold against plaintiff, it would seem that they are actually saying that causation in fact could not reasonably be inferred from the evidence.” See also Hursh & Bailey, American Law of Products Liability 2d, § 3:80, p. 618, and the there cited case of State Farm Mut. Auto. Ins. Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449, 452[3] (1961), holding that although the doctrine of res ipsa loquitur, frequently resorted to in negligence cases, is not applicable as such to the field of warranty, the usual resort to circumstantial evidence in attempting to establish a breach of warranty indicates some of the same thinking found in res ipsa loquitur cases.

Frumer and Friedman, Products Liability, § 12.03[9][d], p. 358, 360, states, “The presence of the defect itself may be infera-ble, just as negligence may be inferable, from circumstantial evidence.” In 35 Am. Jur.2d, Fires, § 56, p. 640, it is stated, “However, it is not required that the evidence exclude all possibility of another origin or that it be undisputed; it is sufficient if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause. Thus, the origin of a fire has generally been held sufficiently established by inferences drawn from circumstantial evidence.” See Reconstruction Finance Corp. v. Peterson Bros., 160 F.2d 124 (C.A.5th 1947); Texas & P. Ry. Co. v. Brandon, 183 S.W.2d 212, 214[2] (Tex.Civ.App.1944); Behrens v. Gottula, 160 Neb. 103, 69 N.W.2d 384, 388[5] (1955); New York, C. & St. L. R. Co. v. Roper, 176 Ind. 497, 96 N.E. 468, 470[7] (1911); and Gichner v. Antonio Troiano Tile & Marble Co., 133 U.S.App.D.C. 250, 410 F.2d 238 (1969), where the court cited and quoted from George v. Bekins Van & Storage Co., 33 Cal.2d 834, 835, 205 P.2d 1037, 1044 (1949) * * * In this case the experts set forth in detail the facts and reasons on which they based their opinions. Their conclusion that the fire was caused by careless smoking was reached by a process of elimination of other possible causes. * * *See also Gechijian v. Richmond Ins. Co., 305 Mass. 132, 142, 25 N.E.2d 191, 197 (1940), cited at page 247 of the Gichner opinion; and importantly, Citizens Bank of Festus v. Missouri Natural Gas Co., 314 S.W.2d 709, 716[4] (Mo.1958), where plaintiff objected to testimony of an expert witness as to a cause of the fire for which defendant would not have been liable, on grounds that there was no evidence of any electrical fire starting and there was no evidence of leaking of oil or water to break down electrical insulation. The court said, “In Kimmie v. Terminal R. R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561, 565, we said: ‘We do not hold, however, as defendant contends, that it is improper to ask an expert witness if something might, could, or would produce a certain result. An expert’s view of possibility or probability is often helpful and proper.’ * * * Defendant had some circumstantial evidence of an electrical fire. There was evidence of electric wires under the floor in the burned floor areas, also of nearby water pipes and dental chairs operated by hydraulic oil."

Taking the circumstantial evidence adduced by appellants as to the place where the fire began in its light most favorable to them, these facts would support the jury’s finding that it did so in the common storage and washing machine area in the northwest quadrant of the basement. When awakened from her northeast quadrant of the basement apartment, Millie Shaffer heard “snapping, popping, crackling and roaring” overhead. She later saw the front, west quadrant over the laundry and storage area, collapse. Audrey Nelson was awakened by a clanging sound in the floor, just over the laundry and storage area. She felt heat in the floor when she got out of bed. Chief Broockerd opened the basement door and knew where the fire was because he could hear it popping and cracking to his right or northwest, and the firefighters reported that the fire was above them in the basement lapping or seeping out of the sheetrock here and there. The Chief determined that the fire was running through the floors and up through the walls. The floor over the storage and laundry area first fell in after two hours. From all the facts, the Chief determined that the fire had been in the basement inter-ceiling area in the northwest corner above the storage and laundry common area. Of all the things which ran through the floors and walls, the only thing which was capable of starting a fire was the electrical wiring. This opinion of Chief Broockerd is within the ambit of expert testimony approved in the Citizens Bank case, supra. Note also the Old Town case, supra, loe. cit. 349 N.E.2d 750, where it was said, “[T]he experts were in agreement ‘that the only thing in the area that was likely to cause the fire would have been from the furnace or the components of the furnace’, i. e., the flue vent.”, and note also that Chief Broockerd’s opinion tended to eliminate any other cause of the fire than electrical wiring under the Bekins Van & Storage case, supra. From all the circumstantial evidence the jury had a sufficient basis to apply a logical inference that the fire started in the ceiling of the common area of the basement, and that its cause was some defect in the extensive electrical wiring in that area. Esmar v. Zurich Insurance Company, 485 S.W.2d 417, 421[3] (Mo.1972). This is true even though Chief Broockerd was unable to reach a conclusion as to the cause of the fire from an examination of the wiring, it having been destroyed by the fire, or that Fire Inspector Dinneen stated in his report, “This fire was burning either on the underside of the first floor or on top of material in storage lockers and communicated to hollow wall spaces through pipe chases, * * *Any conflicts in the evidence on the subject were for the jury to determine. Pfefer v. Bachman, 386 S.W.2d 680, 683[3, 4] (Mo.App.1965).

Without doubt, the state of Kansas (Steele v. Latimer, supra, loc. cit. 521 P.2d 309) has adopted the doctrine of implied warranty of habitability which arises by virtue of the lease contract between landlord and tenant from Mease v. Fox, 200 N.W.2d 791, 796 (Iowa 1972), “ ‘Under these circumstances we hold the landlord impliedly warrants at the outset of the lease that there are no latent defects in the facilities and utilities vital to the use of the premises for residential purposes and that these essential features shall remain during the entire term in such condition to maintain the habitability of the building. * * * In Old Town, supra, loc. cit. 349 N.E.2d 774, the doctrine is stated, “By renting an apartment for residential use the landlord impliedly (1) warrants that the leasehold is then free from any latent defects or conditions rendering the premises uninhabitable for residential purposes; and (2) promises that the premises will remain reasonably fit for residential purposes during the entire term, a promise which necessarily carries with it an implied duty to repair.”

The defect in the wiring of this apartment complex, which the jury as above held could infer existed and which caused the fire, was obviously latent, the area of wiring being concealed in the sheetrocked ceiling of the common area. Although it is not clear in the evidence as to when the building was constructed, it is undisputed that the individual respondents, as subsequent owners, did not construct it. Thus, cases such as Theis v. Heuer, 149 Ind.App. 52, 270 N.E.2d 764 (1971), where the warranty of habitability was applied because of a contractual relationship between a builder-vendor and vendee; Barnes v. MacBrown and Co., Inc., 342 N.E.2d 619 (Ind.1976), where the implied warranty was extended from the builder-vendor to second or subsequent purchasers of a dwelling house where the latent defect later appears; and the latent defect case in Smith v. Old Warson Development Company, 479 S.W.2d 795 (Mo.banc 1972), applying the implied warranty from a builder-vendor are illustrative of the notice of the defect requirement. The reason is stated in the Old Warson case to be, “However, it should be recognized that the rationale for allowing recovery by a purchaser of a new house, on a theory of breach of an implied warranty of habitability or quality, is applicable only against that person who not only had an opportunity to observe but failed to correct a structural defect, which, in turn, became latent, i. e., the builder-vendor.” (479 S.W.2d 801) [Italics added.] The court in the Old Town case, supra, loc. cit. 349 N.E.2d 776[15], adhered “to the principle established in other jurisdictions requiring prior notice (either actual or constructive) and an opportunity to repair as prerequisites to breach of the implied warranty of habitability.” The court said further, “In following such a course, it is recognized that presuming notice (constructive notice) of a latent defect is in itself a form of limited strict liability in contract.” In Old Town, however, the court found, through a process of piercing corporate veils, that there was evidence justifying the jury in finding that Old Town possessed constructive knowledge of latent defects in plaintiff’s apartment, and also that it was a builder-owner, in a position to have knowledge of defects in plaintiff’s apartment. Hence, the court found that Old Town had breached its implied warranty of habitability, following the quotation from Professor Love, 1975 Wis.L.Rev., p. 125 “Landlord’s Liability for Defective Premises: Caveat Lessee, Negligence or Strict Liability?”: If the landlord constructed the premises or supervised their construction, he should be presumed to have knowledge of any latent defects in the original construction of the building."

Under the facts of this case, and the status of the law at this time, there seems to be no legitimate basis for imposing liability upon respondents just by reason of their existent implied warranty of habitability of the leased premises. No case has been cited, nor has one been found, imposing strict liability upon the non-builder landlord for latent defects, rendering the premises unsafe or dangerous, absent some actual or constructive notice or knowledge of the defects. This notice requirement would seem to reduce the concept of implied warranty of habitability to one of negligence [see the concurring opinion in Old Town, supra, 349 N.E.2d 789, 790, and the comment on that case, 10 Ind.L.Rev. 591, 630 (1977)]. Nevertheless, the concept of implied warranty of habitability by prevailing authority, including the Old Town and Old Warson cases, supra, includes the requirement of some type of notice of defects. There is no evidence in this case of any notice of any kind of the defective condition of the wiring in the basement common area, hence the trial court did not err in sustaining respondents’ after-trial motion and entering judgment for them in accordance with their motion for directed verdict made at the close of the whole case.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GEORGE W. CLOYD, Special Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Weasley BROWN, Defendant-Appellant.
    No. 38316.
    Missouri Court of Appeals, St. Louis District, Special Division.
    Dec. 13, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.
    Application to Transfer Denied March 13,1978.

      Robert C. Babione, Public Defender, John Putzel, Jeffrey Shank, Asst. Public Defenders, St. Louis, for defendant-appellant.
    George A. Peach, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Jeff E. Schaeperkoetter, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   GEORGE W. CLOYD, Special Judge.

Defendant John Weasley Brown appeals from his conviction for kidnapping for ransom, a felony, § 559.230, RSMo.1969, for which he received a sentence of twenty-five years. Many of the facts pertaining to the kidnapping, including defendant’s participation in the abduction, are uncontroverted.

On the morning of June 19, 1975, defendant and Elbert Gibson, posing as delivery men, gained entrance to the home of Mrs. Henrietta Helein, the wife of the President of the South Side National Bank in St. Louis. Present inside the house were Mrs. Helein, her mother, Betty Herold, and her sister, Mildred Herold. Once inside, Gibson displayed a handgun, and the two men proceeded to gag, place handcuffs on, and tie the legs of Mrs. Helein and her sister. Betty Herold, the mother, was not gagged or immobilized, apparently because of her age. Mrs. Helein was placed inside a large, cardboard box, along with a cushion, towel and rosary. Her abductors sealed the box, cut holes in it to ensure easy breathing, and placed the box containing Mrs. Helein inside a van parked in front of the Helein home.

Moments after the van had pulled away from the house, appellant and Gibson pulled over to the curb and were met by Alfred Wayne King, the supposed mastermind of the kidnapping plot. King asked: “ ‘Do you have her?’ ”, to which they answered affirmatively, and King then instructed them to follow his vehicle. Several minutes later, according to appellant’s testimony, the vehicles came to a stop, at which time King again approached appellant and Gibson, and gave them written instructions and an address to which they were to deliver Mrs. Helein. They parted with King, and several times while en route to the designated location inquired of Mrs. Helein as to her well-being. At one point appellant and Gibson either became confused over the directions or grew apprehensive about carrying out the plan. For whatever reason, Mrs. Helein was not taken to the given address, but was left in a vacant lot in North St. Louis. She quickly freed herself and hailed a police officer.

At approximately 10:40 a.m. the same day, George Helein, Mrs. Helein’s husband, received a telephone call at the bank informing him that his wife had been abducted and that a suitcase awaiting pickup was located in the bushes outside the bank. The voice was that of a white male. The suitcase contained a ransom note demanding $300,000.00. Mr. Helein was contacted again a short time later and told he would be given forty-five minutes in which to procure the money. While the money arrangements were being made, Mr. Helein was notified his wife was in the safe custody of the police; thus the ransom money was not delivered.

Defendant claims his participation in the kidnapping scheme was obtained through duress. In support of his defense, defendant testified he was contacted by telephone by an unidentified white male, later identified as Alfred Wayne King; was told he and his family were under surveillance, and that to avoid harm to himself or his family he was to meet King the following day. At the appointed time and place, defendant was met by King, who drove up in his automobile, identified himself, and, according to defendant, stated: “Look down in the car. You see this? It’s a gun. Open the door and sit down.’” As he drove around the block, King allegedly restated his threats and commanded defendant to meet him again the following day to receive details of the plan. Defendant testified he met with King each day over a period of the next five days, during which time King gave additional instructions and gradually revealed all the details. At King’s request, defendant solicited the aid of a friend, Elbert Gibson. King also stated his intention to include defendant’s girlfriend, Debbie Smallwood, whose involvement allegedly would ensure defendant’s complete cooperation.

Defendant testified King at no time offered to pay him money or informed him of the ransom demand. Defendant voluntarily surrendered to the police several days after the kidnapping.

Defendant raises two points in his appeal: first, that the trial court erred in instructing the jury on the issue of self-defense while refusing defendant’s requested instructions on the defense of duress; and secondly, that the court erred in denying defendant’s motion for judgment of acquittal because the state failed in its proof of an essential element of the offense, to-wit, defendant’s knowledge of or participation in the ransom scheme. For the reasons stated, we reject these contentions and affirm the judgment.

Although the defense of duress has been' considered infrequently by appellate courts of this state, the Supreme Court in State v. St. Clair, 262 S.W.2d 25 (Mo.1953), stated that duress, or coercion, may constitute a defense to a criminal charge. After reviewing the great weight of authority, the court set forth the parameters of the defense: the duress, or coercion, “must be present, imminent, and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done. Threat of future injury is not enough. Nor can one who has a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily injury invoke the doctrine as an excuse.” 262 S.W.2d at 27-28. See State v. Green, 470 S.W.2d 565, 568, 570 (Mo. banc 1971) (Seiler, J., dissenting).

Once established that duress or coercion may constitute a legal defense, it becomes part of the law of the case upon which the court is required to instruct when evidence in the case so warrants. Criminal Rule 26.02; State v. Powers, 442 S.W.2d 4, 6 (Mo.1969); State v. Drane, 416 S.W.2d 105, 107-08 (Mo.1967). MAI-CR, however, does not contain a pattern instruction on duress or coercion. The trial court therefore felt constrained to modify MAI-CR 2.40 (Justifiable Homicide or Use of Force in Assault Cases) and to instruct on justifiable kidnapping for ransom based on lawful self-defense, while rejecting defense proffered in-structions which encompassed the elements of the defense of coercion as set forth in State v. St. Clair, supra.

We agree with appellant that the law of self-defense, the key element of the submitted instructions, was inapplicable to the facts of this case and inconsistent with the theory of duress which appellant sought to place before the jury. Self-defense, a commonly invoked defense against criminal liability for the use of force to repel and assault or threatened use of force, is not the proper legal defense for this factual situation. Nevertheless, while the court or a lawyer could be expected to recognize the distinction between the theories of duress, or coercion, and self-defense, it cannot be presumed members of the jury possess such an awareness. Jurors are bound to exercise their judgment concerning the evidence based upon the court’s instructions on the law pertinent to the case.

In this instance, the court erroneously labeled the defense of duress as self-defense in its instruction. But the instruction correctly instructed on the defense of duress. The instructions as submitted presented the jury an opportunity to review all the evidence, including defendant’s, and to judge whether defendant’s conduct was justified, thus entitling him to an acquittal. This is not a case of instructions which ignore or tend to preclude consideration by the jury of a defense supported by some evidence. See State v. Drane, supra, 416 S.W.2d at 107. Nor is this a case of instructions so substantially incorrect as to be affirmatively misleading to the jury. See State v. Winn, 324 S.W.2d 637, 642 (Mo.1959). Rather, we believe the instructions defined and explicated the term “self-defense” in such a way as to allow the jury to consider the evidence supportive of the theory of duress, or coercion, advanced by defendant. See State v. Henderson, 530 S.W.2d 382, 387[6] (Mo.App.1975). We do not find the erroneous legal label to be prejudicial to the defendant as the instructions required the jury to consider duress by whatever name it was erroneously called.

Defendant also cites error in the trial court’s refusal to grant his motion for judgment of acquittal inasmuch as the state failed to produce evidence of defendant’s knowledge of or participation in the ransom scheme, a necessary element to prosecution under § 559.230. Bullington v. State, 459 S.W.2d 334, 341 (Mo.1970). In determining this issue we consider as true the evidence favorable to the state and the favorable inferences to be drawn therefrom, and we reject evidence to the contrary. Our function is not to substitute our judgment for that of the jury. State v. Nichelson, 546 S.W.2d 539, 542 (Mo.App.1977). After reviewing the record, we conclude the evidence was sufficient to make a submissible case and to support the finding of the jury.

The evidence of ransom in this case is clear — the telephone calls to Mr. Helein by a man whose voice was that of a white male with a northern accent (defendant is a black youth, age nineteen), and the ransom note itself. It is true there is no direct or circumstantial evidence linking defendant to either the telephone call or the making or delivery of the ransom note. Moreover, defendant disclaims any knowledge of the ransom demand as well as any agreement or understanding between him and King regarding payment of money.

Where, as here, it is evidence that the crime has been committed by more than one individual, our attention must focus on whether an inference of common intent and purpose may fairly be drawn from the evidence. State v. Johnson, 510 S.W.2d 485, 488-89 (Mo.App.1974). Defendant’s own testimony implicates him in the kidnapping, and although he denies participation in the ransom scheme, it is not necessary that defendant personally performed all the acts which together comprise the elements of the offense. State v. Reed, 453 S.W.2d 946, 949 (Mo.1970). The undisputed evidence showing defendant’s affirmative participation in the crime is sufficient in this case to support an inference of common intent and purpose, and thus defendant’s conviction. State v. Reed, supra; State v. Johnson, supra.

Judgment affirmed.

McMILLIAN, SMITH and GUNN, JJ., and MILTON SAITZ, Special Judge, concur.

      . Apart from appellant’s argument concerning the form of the instructions actually submitted, we do not pass on the question whether the evidence of coercion in this case was sufficient to warrant the appropriate instructions.

      . In addition to this instruction and a verdict-directing instruction on kidnapping for ransom, the court gave a verdict directing instruction on the lesser and included offense of kidnapping, and an instruction on justifiable kidnapping.

      . The court instructed the jury as follows (Instruction No. 10, based on kidnapping, and substantially identical, is omitted):
      INSTRUCTION NO. 7
      “One of the issues in this case is whether the kidnapping for ransom of Henrietta Helein was a justifiable kidnapping for ransom. By ‘justifiable kidnapping for ransom’ is meant the kidnapping for ransom of another in lawful self-defense. On that issue you are instructed as follows:
      1. The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the evidence in this case leaves in your mind a reasonable doubt as to whether the defendant acted in lawful self-defense, then you must find the defendant not guilty.
      2. If the defendant had reasonable cause to believe and did believe that he or members of his family were in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that it was necessary for him to act as he did to protect himself or members of his family from such danger, then you are instructed that he acted in lawful self-defense and must be acquitted.
      3. In determining whether or not the defendant acted in lawful self-defense you should consider all of the evidence in the case.

        4. If the defendant had reasonable cause to believe and did believe that he or members of his family were in immediate danger of death or serious bodily harm and that it was necessary for him to act as he did, it is of no consequence that the appearances later turned out to be false. If he acted in lawful self-defense, as submitted in this instruction, he must be acquitted even though there was no purpose on the part of anyone to kill him or members of his family or do him or members of his family serious bodily harm.”

      . Defendant proposed the following instructions:
      INSTRUCTION NO. A
      “One of the issues in this case is whether the defendant acted under duress. On that issue you are instructed as follows:
      1. The State has the burden of proving beyond a reasonable doubt that the defendant did not act under duress. If the evidence in this case leaves in your mind a reasonable doubt as to whether the defendant acted under duress, then you must find the defendant not guilty.
      2. If you find the defendant:
      a) was forced into participating in the alleged act,
      b) that the coercion was present, imminent, and impending,
      c) that it was of such a nature as to induce a well-grounded apprehension of death or serious bodily injury to the defendant if he did not participate in the act, and
      d) that the defendant did not have a reasonable opportunity to avoid doing the act,
      then you are instructed to find the defendant acted under duress and must find the defendant not guilty.”
      INSTRUCTION NO. B
      “One of the issues in this case is whether the defendant acted under duress. On that issue you are instructed as follows:
      1. The State has the burden of proving beyond a reasonable doubt that the defendant did not act under duress. If the evidence in this case leaves in your mind a reasonable doubt as to whether the defendant acted under duress, then you must find the defendant not guilty.
      2. If you find the defendant:
      a) was forced into participating in the alleged act,
      b) that the coercion was present, imminent, and impending,
      c) that it was of such a nature as to induce a well-grounded apprehension of death or serious bodily injury to another, besides the defendant, if he did not participate in the act, and
      d) that the defendant did not have a reasonable opportunity to avoid doing the act,
      then you are instructed to find the defendant acted under duress and must find the defendant not guilty.”
      The instructions submitted to the jury and defendant’s proposed instructions present the respective theories of defense (self-defense and duress) in the form of a special negative defense. While self-defense, when properly an issue in the case, is a special negative defense, see, Notes on Use, MAI-CR 2.40, duress, or coercion, is an affirmative defense, according to the great weight of authority. See State v. Green, supra, 470 S.W.2d 565; United States v. Stevison, 471 F.2d 143 (7th Cir. 1972); People v. Adcock, 29 Ill.App.3d 917, 331 N.E.2d 573 (1975); People v. Calvano, 30 N.Y.2d 199, 331 N.Y.S.2d 430, 282 N.E.2d 322 (1972); State v. Sappienza, 84 Ohio 63, 95 N.E. 381 (1911); Newman & Weitzer, “Duress, Free Will and the Criminal Law,” 30 So.Cal.L.Rev. 313, 321 (1957).


author: ALDEN A. STOCKARD, Special Judge.

text:
    Wm. H. FRYE, Trustee in Bankruptcy of the Estate of Crites and Sailer Construction Company, Inc., Bankrupt, Respondent, v. FARMERS AND MERCHANTS BANK OF CAPE GIRARDEAU, Missouri, a corporation, Appellant.
    No. 38551.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 13, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.
    Application to Transfer Denied March 13,1978.

      A. M. Spradling, III, Spradling, Drusch, Dillard & Spradling, Cape Girardeau, for appellant.
    Raymond H. Vogel, Vogel & Frye, Cape Girardeau, for respondent.
   ALDEN A. STOCKARD, Special Judge.

This is an action by the trustee in bankruptcy to recover funds paid by Crites and Sailer Construction Company, the bankrupt corporation (hereafter referred to as the “Company”), to the Farmers and Merchants Bank of Cape Girardeau, Missouri (hereafter referred to as the “Bank”) to satisfy a personal debt of Loy E. Crites, President of the Company. Trial was before the court. Judgment was entered for the Trustee, and the Bank has appealed. We affirm.

The Company was engaged in the general construction business. Loy E. Crites was president, Calvin Sailer was vice-president, and Dorothy Catlett was secretary-treasurer. These three constituted the board of directors. Mr. Crites had other business interests including a personally owned trucking company. On March 14, 1972 he borrowed $10,000 from the Bank and executed his personal note. He negotiated the loan with Mr. Narvol A. Randol, president of the Bank. According to Mr. Randol, Mr. Crites told him that the Company was expecting a “large sum of money from the Chaffee Housing Authority on a housing project they were about to complete, and * * * as soon as they received the money from the Housing Authority he would pay this loan off.”

On May 2, 1972, acting in his capacity as president of the Company, Mr. Crites borrowed $35,000 from the Bank and executed a note in that amount on behalf of the Company.

On June 23, 1972, pursuant to instructions from Mr. Crites, Dorothy Catlett met the head of the Chaffee Housing Authority at the Bank and received from him a check in the amount of $54,619.23 which she deposited to the Company’s account.

There is a variance in the evidence as to what then occurred. According to Dorothy Catlett, she did not know about the $10,000 personal note of Mr. Crites, and she “wanted to pay just the thirty-five thousand dollar note because that is all [she] knew about,” but Mr. Randol “insisted that we had to pay more than that” and said “there are some notes to be paid off.” He then directed a clerk “to bring in the notes on Crites and Sailer.” The clerk brought in a “handful” and Mr. Randol “spread them out in front of him and said, ‘This is the Thirty-five Thousand Dollar note.’ ” He then said, “we’ve got two or three more of them that ought to be paid.” When Mrs. Catlett “looked at the amounts” she replied that “we don’t have enough money to pay all of these.” Mrs. Catlett knew that the Company “had several ten thousand dollar notes” at the Bank. Mr. Randol then said that “Mr. Crites had told him that this Thirty-five Thousand and the Ten Thousand notes were to be paid that day.” He also stated that the $10,000 note, “was dated earlier than any other notes and he wanted that one paid.” It was Mrs. Catlett’s understanding that “all the notes were supposed to be Crites and Sailer’s; [she] didn’t know that there were any Loy E. Crites personal notes mixed up in them.” She then signed a check payable to the Bank drawn on the Company’s account in the amount of $45,-585.42 which included the principal of the two notes and the accrued interest. The amount was filled in by a Bank employee at the direction of Mr. Randol who did not tell her that the $10,000 note was a personal obligation of Mr. Crites. The two notes were marked paid and she took them to the Company office and placed them in the “notes paid file.” In August she was unable to balance the note account, and with the help of an auditor it was then discovered that the $10,000 note paid with Company funds was the personal obligation of Mr. Crites. She then called Mr. Randol and he commented that “the bank was paid off,” and that it was now a matter “between Mr. Crites and Crites and Sailer.” When she spoke to Mr. Crites he said, “Well that’s just a little bit more I owe Crites and Sailer.” No effort was made by the Company to collect the note from Mr. Crites before it was forced into bankruptcy.

Mr. Randol’s version as to what occurred is somewhat different. He testified that Mrs. Catlett came to the bank and deposited the check from the Housing Authority. He then had “the Crites and Sailer notes” brought out, and he asked Mrs. Catlett “which ones she wanted to pay,” and she looked at them and selected the note for $35,000 and the personal note of Mr. Crites for $10,000. He did not tell the clerk to bring the personal note of Mr. Crites, but the clerk “did it himself.” Although Mr. Crites had previously borrowed money from the bank and executed personal notes, Mr. Randol could not recall that any previous personal note of Mr. Crites had been paid with Company funds.

The other notes of the Company that were produced with the $35,000 note apparently were all secured because, although the Company owed money to the Bank when it went into bankruptcy, at the time of trial the Bank had collected all obligations by way of foreclosure.

The trial court did not enter findings of fact and conclusions of law, none being requested, but entered judgment for the Trustee and against the Bank for $10,-206.25 plus interest from May 21, 1973, the date suit was filed. We deem the factual issues to have been found in accordance with the result reached. Mid-Continent National Bank v. Bank of Independence, 523 S.W.2d 569 (Mo.App.1975). By reason of the limitations on our scope of review, Rule 73.01; Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we are to affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.

Appellant first contends that the Company “ratified the actions of the corporate officer paying off the personal obligation of another corporate officer with corporate funds through acquiescence or by implication by not objecting * * * within a reasonable time after the payment by the corporation to the bank was made.”

There was no formal approval or ratification by the board of directors of the Company for the use of funds of the corporation to pay the personal obligation of the president of the corporation. Assuming that the corporation could have “ratified” the payment by not objecting, such ratification would not be binding on the trustee in bankruptcy.

Section 70(c) of the Bankruptcy Act (11 U.S.C. § 110(c)) grants to the trustee the status of a lien creditor as of the date of bankruptcy. One of the purposes was to prevent the trustee from being subjected to the defenses of ratification and estoppel that could be raised against the bankrupt. As stated in Yol. 4A, Collier on Bankruptcy, 14th Ed. § 70.45, “More frequently than otherwise, the bankrupt will be estopped to deny the validity of his acts, obligations and transfers. If this estoppel is imputed to the trustee, he may be helpless to avoid or set aside the results of the bankrupt’s chicanery, the favoritism of certain creditors, or other acts or transfers that are in derogation of the Bankruptcy Act’s paramount purpose: equality of distribution among all creditors. * * * [T]he trustee has been given extensive powers to set aside preferential or fraudulent transfers, or transfers otherwise voidable under applicable state or federal law where the bankrupt would be estopped to do so, and these powers will, in many cases, be ample to achieve the results desired. Where, however, the transfer, lien, or encumbrance in question is invulnerable to assault under these provisions, the trustee would be sorely handicapped if he were not accorded some superior status, attaching as of the date of bankruptcy, that would enable him to challenge the validity of such transactions. This then is the purpose of the second sentence of § 70c. It has been justly and characteristically termed the ‘strong-arm clause’; * *

Assuming that it could be said in an action by the Company that by acquiescence it had ratified the act of Mrs. Catlett in paying the personal note of Mr. Crites with corporate funds, such ratification was not binding on the trustee when it resulted in a misappropriation of funds which should have been available for the benefit of the creditors of the bankrupt. We find no merit to appellant’s claim of ratification.

Appellant next asserts that it “took Crites and Sailer’s corporate check for value, in good faith and had no knowledge that the officer [Mrs. Catlett] of Crites and Sail-er [in] paying off said obligation of another officer/shareholder [Mr. Crites] did not have corporate authority to pay off said note.”

In its petition the trustee pleaded that after Mrs. Catlett deposited the check from the Housing Authority to the account of the Company, the Bank, acting through Mr. Randol, presented to her “a number of notes payable to [the Bank] which [it] represented as being valid obligations of [the Company] on which the sum of [$45,585.42] was owing, and demanded of said Dorothy Catlett that the said amount * * * be paid and presented to her a check on the account of [the Company] at * * * [the] bank prepared by [the Bank] and payable to [the Bank],” and that Dorothy Cat-lett, “believing that all of the notes so presented to her were valid obligations of [the Company], signed said check as treasurer of [the Company], which check defendant immediately paid from the account of [the Company].”

Mr. Randol knew that the $10,000 note was a personal obligation of Mr. Crites and not that of the Company. He also knew, or will be held to know, that ordinarily personal obligations of a corporate officer are not to be paid with corporate funds. The evidence authorized a finding that Mrs. Catlett knew the Bank had notes, other than the $35,000 note, evidencing corporate obligations, but that she did not know of the existence of the personal note. The evidence also authorized a finding that the $10,000 personal note was placed with the corporate notes and represented to her in such a way that she reasonably assumed it was a corporate obligation, and that Mr. Randol selected it for payment with corporate funds. It is true that Mr. Randol testified that Mrs. Catlett selected the personal note for payment, but this was an issue of fact, and in the absence of specific findings of fact we deem the trier of fact found this issue in accordance with the judgment. Under these circumstances it cannot be said that the Bank received the check “in good faith” without notice that the corporation would have a defense to its payment, and therefore it could not be and was not a holder in due course. § 400.3-202 RSMo 1969; Mid-Continent National Bank v. Bank of Independence, supra.

Appellant does not contend that under the facts pleaded, and which the trier of fact could reasonably have found to exist and which under the circumstances we deem it did so find, the trustee was not entitled to recover the corporate funds used without authority to pay a personal obligation of Mr. Crites. See generally, 66 Am. Jur.2d Restitution and Implied Contracts § 13; Restatement of the Law of Restitution § 15 et seq.

The judgment is affirmed.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: CLEMENS, Presiding Judge.

text:
    Charles Phillip MARTIN, Jr., Appellant, v. Magnolia MARTIN (Brooks), Respondent.
    No. 38525.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 20, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied March 13,1978.

      Earnest L. Keathley, Jr., St. Louis, for appellant.
    Kero Spiroff, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

By a suit in equity plaintiff Charles Martin sues to set aside the paternity portion of defendant’s 1971 divorce decree. He now contends his wife then fraudulently stated he was the father of her child. The present case is plaintiff’s second challenge to that part of the divorce decree and this raises in an issue of res judicata. This, because: “When a fact has been directly tried and settled by a court of competent jurisdiction, it cannot be contested again between the same parties or their privies, in the same or any other court.” In Re McMenamy’s Guardianship, 307 Mo. 98, 270 S.W. 662[4-5] (1925).

Plaintiff’s earlier challenge was by a writ of error coram nobis, four years after the 1971 decree. In the original divorce case the husband filed answer but offered no evidence and the trial court awarded a child-support allowance. In 1975 plaintiff challenged that allowance by coram nobis, contending his wife had perpetrated a fraud upon the court by asserting his paternity. Relief was denied and on appeal we affirmed, holding “coram nobis can be granted only for extrinsic fraud leading to procurement of a judgment, and cannot be granted for intrinsic fraud touching the merits of the action.” See Martin v. Martin, 549 S.W.2d 542[1] (Mo.App.1977).

Plaintiff now appeals from the dismissal of his suit in equity. He alleges the same ground — that he is not the father of the child; he asks for the same relief — that he be relieved of the obligation to pay child support. The issue raised in each case is identical — whether extrinsic fraud had been practiced upon the court.

The dismissal of plaintiff’s equity suit must be affirmed. The principle of res judicata “ . . . significantly mandates that a former judgment shall be a bar to the subsequent maintenance of an action involving the same ‘material facts or questions’ . . . .” Varnal v. Kansas City, 481 S.W.2d 575[4, 5] (Mo.App.1972). In Butler v. Manley, 416 S.W.2d 680[1, 2] (Mo.App.1967), we held: “It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action . ” (Our emphasis).

Here, as in Butler, the issue now raised has been previously resolved. Plaintiff may not now avoid the principle of res judicata by changing the form of his proceeding from coram nobis to a separate suit in equity.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Herbert Henry BAUMER, Appellant.
    No. 38956.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 20, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied March 13,1978.
    Melvin Franke, Public Defender, Gary L. Gardner, Asst. Public Defender, Union, for appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

A grand jury indicted Herbert H. Bau-mer for manslaughter by shooting his wife, Ann Louise. The trial jury found defendant guilty and fixed punishment at ten years’ imprisonment. The trial court denied a new trial and rendered judgment. Defendant has appealed, contending the trial court erred in failing to grant a continuance when the state, without adequate notice, presented expert ballistic testimony that the fatal wound was made by a pistol held against the victim’s head.

The critical factual issue is whether defendant fired the fatal shot while holding the pistol against his wife’s head, or shot her accidentally in handing her the pistol while she was sitting in their car. Defendant offered no evidence but cross examination raised the issue of accidental shooting. Accordingly, the trial court gave MAI-CR 2.28 on excusable homicide, directing an acquittal if defendant shot his wife by accident.

Defendant does not challenge the sufficiency of the state’s evidence. The substantive testimony was that an ambulance crew responded to a call from defendant’s trailer-court home. They found defendant’s wife sitting in a car, apparently wounded by a gunshot; she died hours later. A ballistics expert testified powder burns indicated the fatal wound had been inflicted by a pistol fired while held against the victim’s head. Further evidence came by oral statements. The victim told police defendant had shot her. Defendant first told police his wife had shot herself but later said he had shot her and it was his fault. Still later, defendant told police that when he handed the pistol to his wife it accidentally discharged. Some time after his wife’s death defendant told her mother he had killed her and the mother should get a gun and shoot him.

Defendant now contends the trial court erred in failing to grant a continuance, thereby denying him an opportunity to prepare a defense to the expert testimony that the pistol had been held against the victim’s head when fired; this, because “said testimony was made known to appellant only on the morning of trial.”

The record shows that the week before trial the prosecuting attorney told defense counsel defendant’s pistol had been examined for “distance and powder tests.” On the morning of trial the prosecuting attorney gave defense counsel a report of the ballistic expert’s powder-residue test— which he had just received — showing the pistol had been fired while in contact with the victim’s head. When the court called the case both counsel announced ready.

After four state witnesses had testified— but not yet the ballistic expert — defendant moved the court to exclude the anticipated expert testimony on the ground he had not been notified of it until the morning of trial and it was too late for him to counter it. The court denied the motion and trial proceeded. When the ballistic expert was called defendant renewed his motion to exclude testimony about the firing distance but it was overruled. Following the verdict defendant moved for a new trial on the ground, among others not preserved, that the court erred in admitting testimony of the powder-residue tests because of untimely disclosure.

Nowhere in the record does the word “continuance” appear until we reach defendant’s brief. The point now raised has not been preserved for review. Were we to construe defendant’s trial motion to exclude evidence as tantamount to a motion for continuance the result would be no different. Bear in mind that before trial defendant knew the state intended to introduce the expert testimony, but announced ready for trial and objected only after four witnesses had testified. Excepting surprise arising during a witness’ testimony (State v. Gatlin, 539 S.W.2d 731[1-4] (Mo.App.1976)), “an application for continuance should be made presented to the court before the jury is sworn.” State v. Martin, 515 S.W.2d 802[1, 2] (Mo.App.1974).

Anticipating our rejection of his continuance contention defendant argues that failing to grant a continuance sua sponte was plain error. In considering this, we note defense counsel had over a year to prepare for trial. It was apparent a trial issue could be the relative positions of defendant’s pistol and the victim’s head. A week before trial defense counsel knew ballistic tests had been made; at trial time he knew what the tests would show. In view of other strong evidence of guilt and the lack of a request for continuance, we hold defendant’s plain error contention is specious for its utter lack of manifest injustice or miscarriage of justice. State v. Jones, 544 S.W.2d 25[3] (Mo.App.1976).

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: WELBORN, Special Judge.

text:
    Gertrude M. WYCKOFF, Plaintiff-Appellant, v. COMMERCE BANK OF KANSAS CITY, Defendant-Respondent.
    No. KCD 28241.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 30, 1978.
    Application to Transfer Denied March 13,1978.

      F. Russell Millin, Kansas City, for plaintiff-appellant.
    John C. Thurlo, Kansas City, for defendant-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS; Special Judges.
   WELBORN, Special Judge.

This litigation originated as an action in replevin by Gertrude M. Wyckoff to recover from Commerce Bank of Kansas City two certificates of deposit issued by that bank which had been pledged as security for a loan. The bank counterclaimed for the amount due on the loan in question. Trial to the court resulted in a judgment in favor of the bank on its counterclaim for $14,-689.36 and against plaintiff in her replevin action. Plaintiff has appealed.

Gertrude Kliwer married Kenneth E. Wyckoff January 26, 1970. The next day Ms. Wyckoff executed necessary instruments to convert her savings and checking accounts at Commerce Bank to joint accounts with her husband. She also designated him a deputy on her safe deposit box at the bank. Ms. Wyckoff also held several certificates of deposit issued by Commerce Bank. The two certificates here in question, No. N 655 for $14,000 and N 672 for $10,500, were endorsed as follows:

“Pay to the order of Kenneth E. Wyckoff or Gertrude Wyckoff as joint tenants with right of survivorship and not as tenants in common.”

The certificates, so endorsed, were placed in the safety deposit box.

In May, 1970, Kenneth E. Wyckoff arranged with Richard Conn, an assistant vice-president of Commerce Bank, to borrow $24,500 on the security of the two above described certificates of deposit. A pledge note and assignments of the certificates of deposit as security were prepared for execution by both of the Wyckoffs and given to Mr. Wyckoff to take for execution by his wife.

On May 4, 1970, Wyckoff returned to the bank with the note and assignments executed by Ms. Wyckoff. Conn checked the signatures with the signature cards on accounts of Ms. Wyckoff and was satisfied that she had signed the documents. Mr. Wyckoff then signed the note and assignments in Conn’s presence and endorsed and delivered the two certificates of deposit to him. Conn disbursed the loan by giving Wyckoff cashier’s checks for $24,000 and $500, payable to Mr. Wyckoff who endorsed and negotiated the checks which were paid by Commerce Bank.

On July 28, 1970, Mr. Wyckoff left Ms. Wyckoff. The next day she examined her safety deposit box and found the certificates of deposit missing. In August, 1970, Ms. Wyckoff, through her attorney, advised the bank that her signatures on the note and assignments were “either forgeries or completely unauthorized by her * * Return of the collateral was demanded. The bank ignored the demand and on September 2, 1970, the $10,500 certificate of deposit was cashed and the proceeds applied against the note.

Thereafter, Ms. Wyckoff filed her replev-in action, to which the bank responded by counterclaiming for the amount due on the note. As defense to the counterclaim, Ms. Wyckoff pleaded lack of consideration and subsequently raised a defense of usury against the validity of the pledge agreements.

Upon trial to the court, Ms. Wyckoff testified that she had no knowledge of the May 4,1970 transaction and stated that she had never borrowed from the bank or authorized Kenneth Wyckoff to do so in her behalf. She denied her signature on the note or assignments, although admitting that they looked like her signatures. Expert opinion evidence on behalf of the bank was that the signatures were those of Ms. Wyckoff and the trial court so found.

The trial court found the note on its face was usurious but further found that there was no intention on the part of the bank to charge a usurious rate and that the amount of the note was the result of an error in computation and reformed the note to an amount based upon the then legal rate of 8% interest. The court held against plaintiff on her defense of lack of consideration. Judgment was entered for the bank on its counterclaim for $14,689.36 due on the note and against plaintiff on her replevin claim.

In this court, appellant argues that the trial court erred in finding against her on her defense of lack of consideration. Appellant argues that she received none of the proceeds of the loan, that she was not shown to have been an accommodation party to the loan, that there was no evidence that she authorized her husband to act as her agent in the transaction or that she authorized disbursement of the proceeds of the loan to her husband. She relies upon the case of Clark v. Vaughan, 296 S.W.2d 155 (Mo.App.1956), as sustaining her defense in these circumstances.

In Clark v. Vaughan, supra, the Vaughans, husband and wife, signed an agreement for joint purchase of corporate stock and executed jointly a promissory note in payment. The stock was issued in the name of the husband alone. In a suit on the note, the court found that the wife’s defense of lack of consideration was meritorious if no stock had ever been issued to her. Appellant contends that, inasmuch as she received no proceeds of the note here involved, her situation is the same as that of Ms. Vaughan.

However, in this case, there is no contention that appellant borrowed from respondent or authorized her husband to do so on her behalf. In such circumstances, the complaint of lack of consideration is without merit because there unquestionably was consideration moving to appellant’s husband. “ * * * [I]t is the settled rule that a single consideration which moves to any one of two or more contemporaneous comakers of a note will be adequate and sufficient to support the undertaking of them all.” Will v. Trumpelman, 171 S.W.2d 732, 734[2] (Mo.App.1943). See also Madison County Bank v. Graham, 74 Mo.App. 251, 256 (1898); First Nat. Bank of Hamilton v. Fulton, 28 S.W.2d 368, 371[9] (Mo.App.1930); Kopff v. Miller, 501 S.W.2d 532, 536—537[8, 9] (Mo.App.1973).

Appellant contends that the rule followed in Will and Kopff, supra, applies only in cases where a pre-existing indebtedness of a husband is the consideration for a note signed jointly by a husband and wife. Such circumstances were involved in those eases, but the rule is not limited to cases involving those facts. The antecedent debt did, in those cases, supply the consideration but that fact was significant only insofar as it provided consideration moving to one of the cosigners of the note. First Nat. Bank of Hamilton v. Fulton, supra, applied the rule in a case involving circumstances similar to those of this case.

The trial court correctly concluded that the defense of lack of consideration was not available to appellant.

Appellant also attacks the trial court’s conclusion that respondent was a holder in due course of the note. However, appellant has failed to demonstrate wherein respondent failed to meet the requirements of § 400.3-302, RSMo 1969, defining a holder in due course. Appellant states merely that “it is only in rare circumstances that a payee can be a holder in due course.” Section 400.3-302(2) clearly recognizes that a payee may be a holder in due course and the bare assertion that respondent here was not does not demonstrate error on the part of the trial court. See UCC Comment on Section 403.3-302 at Vol. 20A, VAMS, pp. 515-516, particularly subparagraph c, paragraph 2.

Appellant’s second contention relates to the charge that the note was usurious, entitling her to the return of the collateral security, under § 408.070, RSMo 1969.

At the time of the loan, the maximum legal rate of interest was 8% per annum. § 408.030, RSMo 1969. (Since amended to increase the maximum rate to 10% — Laws of Mo.1974, 2d Ex. Sess., p. 968). The note did not recite a rate of interest on its face except for a legal rate of 8% after maturity. However, interest of $526.25 was charged on a 60-day loan of $24,525.00. The parties agree that the interest computed would exceed the 8% per annum rate by some $35.75.

According to Mr. Conn, the bank officer with whom Wyckoff arranged the loan, the rate of interest intended to have been charged was 8%, which would have produced interest of $490.50 on the loan. He explained the difference as due to “a transposition of numbers.”

The trial court found that there was no intent to charge a usurious rate, that the amount charged was erroneous because of an inadvertence or transposition, and that it had equitable power to reform the error. The court held that § 408.070, RSMo 1969, does not preclude a lender’s showing that a charge of interest in the excess of the legal rate was unintentional or inadvertent and that a pledge of collateral was not to be voided “for an honest or simple mistake.” Appellant contends that the trial court, in effect, amended § 408.070 to include a good faith exception which the legislature did not include. She contends that inadvertence or good faith is not a defense to an action for return of collateral under § 408.-070. Appellant does not attack the factual finding of the trial court that the interest on the loan was computed at more than 8% by mistake.

Appellant relies upon general statements found in cases applying § 408.070 to the effect that the statute “is intended to prevent usurious practices, and should be liberally construed so ‘as to suppress the mischief and advance the remedy.’ ” (Central Missouri Trust Co. v. Smith, 213 Mo.App. 106, 247 S.W. 241, 243[6] (1923)) and that the statute is clear and unambiguous and “makes the pledge or mortgage based upon usury ‘invalid and illegal.’ There is no room for construction unless the courts are to take upon themselves the prerogative of writing exceptions into the statute which the lawmakers refused to do.” (Keim v. Vette, 167 Mo. 389, 67 S.W. 223, 226 (1902).)

As respondent points out, neither of the cases relied upon by appellant involved the question of an erroneous computation resulting in a charge of usurious interest, without intention to exact a usurious rate. Respondent has discovered no cases in this state on this point but relies upon decisions of other jurisdictions which the trial court found persuasive.

Numerous cases from other jurisdictions have held that where an excessive amount of interest is imposed as a result of an error in calculation, the transaction is not to be considered usurious. Such conclusion is generally based upon the proposition that a mistake in calculating, made in good faith, “negative[s] the existence of the unlawful intent necessary to constitute usury.” 91 C.J.S., Usury, § 14c, pp. 585-586 (1955). Among cases so holding are: Stedham v. Swift & Co., 79 F.2d 648, 649-650[4-6] (5th Cir. 1935); Hinton v. Brown, 174 Ark. 1025, 298 S.W. 198, 199[1] (1927); Morgan v. Security State Bank of Wewoka, 168 Okl. 301, 32 P.2d 925, 927[l-4] (1934). See Annotation: “Usury as Affected by Mistake in Amount or Calculation of Interest or Service Charges for Loan.” 11 A.L.R.3d 1498 (1967).

Cases in this state have pointed out that “to constitute usury there must exist an intent to charge more than the legal rate for the use of money, * * Hansen v. Duvall, 333 Mo. 59, 62 S.W.2d 732, 737[6, 7] (1933). See also Tobin v. Neuman, 271 S.W. 842, 844[2-5] (Mo.App.1925); Beneficial Fin. Co. of St. Chas. v. Kitson, 530 S.W.2d 497, 502[3—5] (Mo.App.1975). Given this element as essential to proof of usury, the conclusion that a mistake such as that here found by the trial court to have been made, negatives the existence of the necessary intent to charge an illegal rate, was properly adopted by the trial court.

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth C. DUDLEY, Appellant.
    No. KCD 29031.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 30, 1978.
    Application to Transfer Denied March 13,1978.

      Ann K. Fleming, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Frank Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

On this appeal from his conviction for possession of marijuana, defendant asserts error: (1) in the admission into evidence of the marijuana obtained by a search in alleged violation of his rights under the Fourth Amendment (applicable to the States through the Fourteenth Amendment) of the Federal Constitution and Article I, section 15, of the Missouri Constitution; and (2) in the admission into evidence of a statement obtained from the defendant after the search. We reverse.

On August 24, 1974, at about 3 A.M., Officer Charles L. Muldoon of the Macon Police Department was alone on routine patrol car duty when he saw two young men by a telephone booth at the junction of Highways 63 and 36 in the City of Macon, Missouri. Both had long hair and were attired in “hippie” clothes. Muldoon drove his patrol car onto a driveway to within one or two feet of the two young men who walked away from two suitcases and approached the incoming vehicle. Muldoon asked the boys where they were going, to which they responded that they had come by bus from Oklahoma City and were waiting for a ride to Kirksville. Muldoon then asked for identification. Dudley produced a Missouri Driver’s License and Ramos produced a California Driver’s License. At this time, Muldoon observed that Dudley was very talkative and nervous, and that his eyes were inflamed. After looking over the identification, Muldoon asked how much “grass” the young men were carrying.. Defendant responded “he didn’t fool with that stuff.” Muldoon then got out of the police car and walked over to the two suitcases which were 10 to 12 feet from the car. One suitcase was in an upright position and one was lying flat. Muldoon tapped or kicked the suitcase which was lying flat, and at that time according to his testimony he detected “a faint smell of marijuana” coming from the suitcase. He asked the boys again, “How much stuff are you guys carrying?” Again, the answer was “that they did not fool with that.”

Muldoon then asked the boys to accompany him to the police station. The boys were reluctant to do so on the ground they would miss their ride to Kirksville. Muldoon then ordered the boys to pick up their gear and put it in the car and come with him to the police station. The two suitcases were placed in the back seat directly behind Mul-doon in the driver’s seat, defendant got in back next to the suitcases, and Ramos sat in front next to Muldoon. Muldoon testified that the purpose for going to the police station was to see if the young men would open up their suitcases willingly and prove that they weren’t carrying anything.

As they were driving to the police station, Muldoon got a “whiff” of marijuana. At the police station, Officer Hewitt was at the front door. Muldoon got out of the car first, followed by the two young men. Ramos started sauntering away toward an alley, but Muldoon peremptorily ordered him back and into the station. Dudley and Ramos at Muldoon’s direction carried the suitcases into the police station, placed them on the floor, and took seats in the main room of the police station. Shortly thereafter Officer Muldoon asked the young men to open the suitcases. Ramos laid one suitcase upon the counter and opened up that suitcase. Muldoon and Hewitt went through the suitcase and found that it contained clothing. At that point, the officers decided to search each of the young men and found a three-inch knife on the person of Ramos.

Dudley and Ramos were then asked to put the other suitcase on the counter and to open it, which they both refused to do. Accordingly, Muldoon placed the suitcase on the counter. As Muldoon placed the suitcase on the counter, Dudley bolted and ran through the front door of the police station. Muldoon pursued him and shouted, “Halt or I will fire.” Dudley stopped and Muldoon pulled his revolver from its holster, handcuffed appellant and brought him back into the police station.

After a short interval, Hewitt took Ramos into another room for interrogation, and the handcuffs were removed from defendant. Muldoon told Dudley that he was reasonably sure that this suitcase in question contained marijuana, and that he was going to get into it. Because the suitcase had three locks, Dudley and Ramos were both asked if they had a key to the suitcase, but they stated that they had no knowledge of a key. Muldoon then pulled out his revolver and threatened to shoot open the suitcase. When that bluff failed, he took out Ramos’ knife and threatened to cut the suitcase open. Then Muldoon went to the next room for tools, and with a pair of pliers he fashioned a wire clip around a screwdriver into a rough lock-pick. With this he opened the lock on one side, which enabled him to look inside and see marijuana in kilo bricks.

Muldoon testified that after opening the suitcase and discovering the marijuana, he read Dudley and Ramos the Miranda warnings and informed them that they were formally under arrest. The next morning, Sgt. Burnett of the State Highway Patrol came in, ran a test on the marijuana, gave defendant a Miranda warning, and took a tape recorded statement from defendant in which he gave the details on how he had acquired and transported the 32 pounds of marijuana found by the search and seizure just described.

In justification of the search of the suitcase containing marijuana, the State argues that the search was incidental to a lawful arrest. Defendant challenges that on two bases: (1) he argues that the war-rantless arrest was not lawful because it was not based upon probable cause; (2) he further argues that the search went beyond the limits of what is permissible incident to an arrest. It is unnecessary to decide whether the arrest itself was lawful. Even assuming that it was, defendant’s second argument must be sustained.

The permissible scope of a search under the circumstances of this case is governed by the recent opinion of the United States Supreme Court in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In that case federal officers received reliable information that defendants were enroute by train to Boston transporting marijuana. When the train arrived in Boston, federal agents were on hand accompanied by a police dog trained to detect marijuana. As the defendants claimed their luggage, including a foot locker, the dog signaled the presence of contraband. The agents waited until the foot locker was placed in the trunk of defendants’ car and then arrested them and took them to the Federal Building. At the Federal Building, the agents opened the foot locker and recovered the marijuana. The Supreme Court held the search to be illegal, thereby excluding the marijuana from admissibility into evidence. The court laid down the governing principle as follows:

“Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.”

Under the facts here, that test is met. Prom the beginning when Officer Muldoon confronted them on the street, defendant and his companion were submissive with respect to the suitcases. They moved those suitcases into and out of the police car obediently at the command of Muldoon. At least from the time that Muldoon and the two arrestees reached the police station, where Muldoon enlisted the help of Officer Hewitt, those police officers were in complete and exclusive control of the suitcases.

The police control of the whole situation and in particular of the suitcase last to be opened, is best illustrated by the events after defendant attempted to flee and was brought back into the station house. After failing to obtain a key to the locked suitcase, Muldoon drew his 357 Magnum with a 6-inch barrel and threatened to shoot the suitcase open. At that time, with a gun in his hand, Muldoon knew that the two young men were unarmed because they had just been searched for weapons. Then, when Muldoon’s first bluff failed to produce a key, he pulled out the knife which he had previously taken from Ramos and threatened to cut the suitcase open. When that bluff also failed, Muldoon went to the next room to look for tools and then proceeded to manufacture a lock-pick. During all of these maneuvers, there were two officers on hand both armed, dealing with two young arrestees both known to be unarmed and neither of whom had made the slightest move toward even attempting to get into the triple-locked suitcase which was sturdily resisting Muldoon’s efforts to open it.

Muldoon could have just as easily, and in fact more easily, put away the second suitcase in some safe place completely separated from the arrestees until such time as he had obtained a search warrant from a magistrate. That Muldoon chose not to do so was a matter of his own free choice which cannot lessen the fact that he was in full control of the suitcase and of what action to take with respect to it.

The State cites authority for the proposition that “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” Expressions to that effect found in cases decided prior to Chadwick must now be regarded as overly broad and lacking in sufficient refinement. Chadwick adopts a new principle which distinguishes between searches of the arrestee’s person as contrasted to searches of other possessions such as luggage which may be within the arres-tee’s immediate control. Searches of the person need not be confined to the place and time of the arrest but may be delayed to a subsequent time and place; but searches of other possessions incident to an arrest can no longer be conducted after the point when the officers have reduced those possessions to their exclusive control. United States v. Berry, 560 F.2d 861, l.c. 864 (7th Cir. 1977). The suitcase here in question comes within the second category of items not on defendant’s person, and therefore falls within the tighter limitation of Chadwick.

Nor can the State find support for its position in State v. Brasel, 538 S.W.2d 325 (Mo.banc 1976). The dominant difference between Brasel and the present case lies in the fact that the search permitted in Brasel occurred at the time and place of the arrest under circumstances which the court found made the attache case there involved within the immediate control of the arrestee.

Inasmuch as the search here must be held invalid, the statement subsequently taken from defendant falls with it. Prior to the opening of the suitcase containing the marijuana, defendant had steadfastly denied any wrongdoing. His denials were not broken down and his statement was not obtained until after the illegal search and seizure. The prosecution wholly failed to sustain its burden of showing any break in causation between the illegal search and the confession, and the evidence as a whole plainly reveals that the search was the proximate cause of the confession. The statement must therefore be excluded as fruit of the poisoned tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Because of the erroneous admission of the evidence mentioned, this conviction must be reversed. After remand, unless the prosecution is prepared to offer evidence incriminating defendant other than and independent of the marijuana seized by Muldoon and the statement taken by Burnett, this case should be dismissed in the trial court.

All concur.


text:
    STATE of Missouri, Respondent, v. Charles Leon TOLLIVER, Appellant.
    No. KCD 29034.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 30, 1978.
    Application to Transfer Denied March 13,1978.

      Joe Hamilton Scott, Public Defender, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Frank Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J„ and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

Defendant appeals his conviction by a jury of robbery in the first degree. At the time of the offense charged, defendant was 15 years of age.

The evidence shows that at about 10:30 p. m. on January 2, 1976, defendant assaulted Ted Williams and took from him a ring, a watch and a gun. The next evening defendant was arrested. The arresting officers called into police headquarters for a juvenile officer to be on hand to take custody of defendant. Juvenile officers Wood and Fridell were at the police station at the time, and they received a call from the front desk to wait until defendant was brought in. The arresting officers did arrive at sometime between 7:15 and 7:40 and delivered defendant manacled to Wood and Fridell.

The juvenile officers immediately took defendant to the assembly room in the police station where they removed the handcuffs and proceeded to search defendant and pat him down for weapons. They proceeded to read him a Miranda warning and explain it to him. They then took information from defendant sufficient to fill out a “juvenile sheet.” Part of the information so taken was the telephone number of defendant’s mother, whom the juvenile officers then called. The party answering identified herself as defendant’s mother and said she would come to the police station. When she did not arrive, a second call was placed 10 or 15 minutes later. When she still did not arrive at the police station, a third call was placed 15 to 20 minutes after the second call. In the meantime, the juvenile officers gave defendant a certain amount of “orientation” which consisted of telling him “what things are all about, that he is in the police station, he is in the conference room, that there may be a policeman talking to him, that we are juvenile officers.”

By 8:30 p. m. the mother had still not arrived, and the juvenile officers then announced to Detective Thomas that he was free to take defendant’s statement and they requested Thomas to do so. The juvenile officers introduced Thomas to defendant as a policeman and stated to the defendant that Thomas was there in a different capacity than they were. Thomas then proceeded to give an additional Miranda warning and proceeded to take a statement from defendant. The statement constituted a full confession, and at the same time defendant turned over the ring and watch which he had taken from Williams. He also disclosed where he had thrown the gun and he took Thomas, Wood and Fridell to that place on Messanie Street.

Defendant assigns eight points of error on appeal, but we reverse solely on the proposition that the statement taken from defendant occurred under circumstances which violated his constitutional rights. This determination makes it unnecessary to pass upon the other unrelated points argued on this appeal.

The crucial issue as to the validity of defendant’s waiver of his constitutional rights under the appropriate standards was not squarely raised by defendant in his motion for new trial nor is it so raised in his Points Relied Upon. His Points Nos. IV and V do, however, come close. His Point IV does set forth some of the appropriate factors, but this Point directs its attack at compliance with the Juvenile Code rather than to compliance with constitutional guarantees. Defendant's Point V directs itself to violation of constitutional protection, but this point specifies incorrect reasons. Giving these Points a liberal interpretation, Points IV and V in combination can be construed as adequately presenting the issue upon which this opinion is based. In any event, even if for technical reasons the issue has not been perfectly raised, consideration is nevertheless proper under the plain error doctrine set forth in Rule 27.-20(c).

The starting point for discussion of this constitutional issue is the consideration stated in Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), where the United States Supreme Court pointed out that “[a]ge 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces.” In light of that consideration, the law required special protection to a young teenager who is to be subjected to police interrogation, so as to place him so far as possible on a plane of equivalence with an adult. A key measure of such protection has been the creation of a procedure to provide the presence of an attorney, parent or similar adult friend. The reason for this standard of protection was set forth in Gallegos v. State of Colorado, 370 U.S. 49, 1. c. 54-55, 82 S.Ct. 1209, 1212-1213, 8 L.Ed.2d 325 (1962):

“He [the juvenile] cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights — from someone concerned with securing him those rights — and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators. Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had. To allow this conviction to stand would, in effect, be to treat him as if he had no constitutional rights.”

The failure in Gallegos to provide such adult support to the juvenile was there held, along with other factors, to show a deprivation of constitutional protection under the “totality of circumstances.”

The State urges in the present case that the two juvenile officers should be considered as defendant’s “adult friends” within the foregoing rule. That contention cannot be accepted, at least under the facts of this case. Juvenile officers Wood and Fridell considered themselves to have only a very limited duty, confined largely to explaining the Miranda warning, notifying a parent, and preventing any open and obvious improper treatment of the juvenile by the police. In actuality that is essentially all that the juvenile officers did here. They merely made an academic explanation of defendant’s rights without any attempt to relate those rights to the facts of defendant’s case. Indeed, the only information which those two juvenile officers took from defendant was the bare information necessary to complete the juvenile record. They made no inquiry at all as to the facts of the alleged criminal activity for which the defendant had been arrested, and without this information they could not possibly give defendant any meaningful advice or the type of concerned help contemplated by Gallegos.

Neither of these men had even had any previous acquaintanceship with this young boy; and from the face of the record, they made no serious attempt to establish any meaningful friendly relationship with him. Had they done so, they would almost surely have found out that defendant had not lived with his mother since the time he was six months old, but instead lived with his grandmother. If the juvenile officers had made this kind of minimum friendly inquiry, they surely would have placed a call to the grandmother when the mother failed to appear. In any event, they cannot in any realistic sense be considered an adequate substitute for the parent in light of what they did and failed to do. Their conduct, limited to rather stiff formalities, would have sufficed if they were there simply in addition to a parent or similar adult friend — but under the facts shown by this record that type of conduct does not match up to the necessary protection when they were the. only ones present to whom defendant could look for supportive help. All of this must also be evaluated in light of the fact that the juvenile officers took custody of defendant at the police station and never made any move to take him to the courthouse where they had their offices. They took him immediately to the police assembly room where he remained throughout until after his confession. The physical location in which the juvenile officers conducted this whole operation together with the fact that they conducted a search and pat down of defendant’s body, were hardly calculated to create a sense of confidence in defendant that he was in the hands of friends.

This protection of having a parent or some similar adult friend present at an interrogation has been regarded as so necessary that its absence makes any resulting statement illegal per se. Lewis v. State, 259 Ind. 431, 288 N.E.2d 138 (1972). Generally, however, the case law does not go so far. The presence of an attorney, parent or adult friend is regarded by most courts as just one of the factors going to make up the “totality of circumstances.” Gallegos v. State of Colorado, supra; State v. Sinderson, 455 S.W.2d 486 (Mo.1970); In Re K.W.B., 500 S.W.2d 275 (Mo.App.1973); People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (banc 1967); State v. Hogan, 297 Minn. 430, 212 N.W.2d 664, 671, note 2 (1973); Interest of Stiff, 32 Ill.App.3d 971, 336 N.E.2d 619 (1975). Nevertheless, this protection is of great importance as affecting the totality of all the circumstances involved. In Re K.W.B., supra; Application of Gault, 387 U.S. 1, 1. c. 55, 87 S.Ct. 1424, 18 L.Ed.2d 527 (1967). See case note in 44 U.M.K.C.Law Rev. 87,1. c. 93, note 32 (1975).

Addressing the totality of the circumstances in the present case, the failure to have a parent or adult friend present at the interrogation does not stand alone. In considering this whole situation, it is important to note that there was nothing of an exigent nature. The police were not in hot pursuit on a criminal trail — the crime had occurred almost 24 hours before the arrest. Furthermore, there was no one else implicated in the robbery of Williams — this is made clear by Williams’ testimony in open court as well as the confession given by defendant. Still further, the police were not asking for any immediate action — it was the juvenile officers who requested Detective Thomas to take defendant’s statement, without any request from any member of the police to either Wood or Fridell. If there had existed an emergency situation, much could be excused. By like token, when no emergency exists, more meticulous care is called for. There was no reason why the juvenile officers should not have taken more time and made more of an effort to obtain the presence of a parent, adult friend or a lawyer. As already discussed, just a little more effort would have disclosed that defendant’s grandmother had a closer relationship to defendant than did his mother and would be more likely to come to his aid than his mother.

There is something additional which is even more damaging. The testimony by these juvenile officers tends very strongly to show that they participated along with Thomas in the interrogation of defendant. Thus in the redirect examination of Wood by the Prosecuting Attorney, the following question was asked and answer given:

“Q After Mr. Tolliver made his statement that you saw him sign that you signed, did you ask him where the items that he said that he took from Mr. Williams were?
“A I don’t believe it was after. I believe it was during the time.” (emphasis added)

Perhaps this piece of testimony can be explained away on the theory that the word “you” as used by the prosecutor was meant or understood to be meant in the plural, and so to refer to all three of the men present at the interrogation. However that innocuous explanation cannot hold true as to the following testimony given by juvenile officer Fridell:

“Q Where did he tell you the derringer was?
“A He tole [sic] me the derringer was on Messanie Street at a location where he could show us.” (emphasis added)

The only fair understanding which can be gained from this testimony is that one or both of the juvenile officers did participate in the interrogation. Such participation in and of itself violates Sec. 211.271(3) RSMo 1969 and renders the confession inadmissible. State v. Kemper, 535 S.W.2d 241, l. c. 254 (Mo.App.1976); cf. State v. Wright, 515 S.W.2d 421 (Mo. banc 1974) and In Interest of A.D.R., 515 S.W.2d 438, l. c. 441 (Mo. banc 1974). Not only did the participation of the juvenile officers violate the statutory provision, but additionally such active participation creates a due process problem stemming from a conflict of interest. A juvenile officer can hardly perform faithfully his function of gaining the juvenile’s confidence and aiding in starting the rehabilitation which is the underlying philosophical purpose of the Juvenile Court, if he at the same time undertakes an active role in police enforcement of the criminal law.

The statement taken from defendant and also the ring, watch and gun which were recovered as a result of obtaining that statement were improperly admitted into evidence. The judgment of conviction is therefore reversed and this case is remanded for a new trial.

All concur.