¶1(concurring in part and dissenting in part).
¶2I concur in the principal opinion insofar as it disposes of the case of defendant Harold Hamilton, No. 54,103; but I respectfully dissent insofar as the opinion disposes of the case against defendant Robert Witherspoon, No. 54,102. I would affirm the conviction against Witherspoon because I think the evidence plainly shows that he consented to the search of the trunk of the automobile at a time when he was in control of it. As shown by the transcript and in the principal opinion the patrolman asked Witherspoon “if there would be anything in the trunk they would care if I looked at,” to which Witherspoon answered “No,” and handed the officer the keys. At that time he was not under arrest and there was nothing to indicate any duress, express or implied. It is therefore reasonable to conclude that the consent for the search was voluntary on the part of Witherspoon and hence that there was no occasion for suppressing the evidence obtained in the search and it was properly admitted against Witherspoon in the trial of the case. I think this conclusion is supported by Hamilton v. State of North Carolina, D.C., 260 F.Supp. 632 [3]; Gendron v. United States, D.C., 227 F.Supp. 182 [1]; State v. Foster, Mo.Sup., 349 S.W.2d 922 [4]; State v. Green, Mo.Sup., 292 S.W. 2d 283 [3], and State v. Gailes, Mo.Sup., 428 S.W.2d 555 [2].
¶3For the reasons stated I would affirm the judgment of conviction in the Wither-spoon case.