(dissenting)—I dissent. The majority decision grants a new trial for trifling reasons. Finding only a molehill of error in a mountain of evidence, the majority, I think, ignores an oft-stated precept that one accused of crime is entitled to a fair, not a perfect trial. The defendant made a full, detailed and highly corroborated confession in open court under oath, seeking to avoid the legal consequences of his testimony only through a claim of coercion and duress. The few words of testimony by a psychiatrist that the defendant was not likely to be susceptible to coercion seems to me a harmless error and, when placed alongside the defendant’s step-by-step description of his participation in the kidnapping, of trifling legal significance. To warrant a new trial, error must be prejudicial. State v. Wilson, 38 Wn.2d 593, 231 P.2d 288 (1951), cert. denied, 342 U.S. 855, 96 L. Ed. 644, 72 Sup. Ct. 81 (1951); State v. Meyer, 37 Wn.2d 759, 226 P.2d 204 (1951); State v. Moore, 35 Wn.2d 106, 211 P.2d 172 (1949); State v. Gaines, 144 Wash. 446, 258 Pac. 508 (1927), cert. denied, 277 U.S. 81, 72 L. Ed. 793, 48 Sup. Ct. 468 (1928).
One who acknowledges that he knowingly, intentionally, and purposely committed all of the acts constituting a crime has confessed to that crime. 2 Wharton, Criminal Evidence § 336 (12th ed. 1955). Bromley gave such a confession; he showed, too, that the defense of duress and coercion was not in law available to him.
*159Called by Ms own counsel to the witness stand on direct examination, Dean Allen Bromley testified to full complicity in the planning and execution of the kidnapping, including his receipt of more than $5,500 in ransom and Ms flight to Arkansas with the money. All of the following narrative, with one minor exception, comes exclusively from Bromley’s direct examination, and every detail of his testimony was corroborated by a wealth of other cogent evidence.
Bromley testified that he was 20 years old, married, had one child, and had been convicted of a felony in Washington, burglary in Kansas and loitering (a misdemeanor) in justice court in Tacoma. He and his father, he said, operated a gas station in Tacoma where codefendant Jim Evans traded. He first met Evans during the summer of 1965, and the two became friends through working together on their automobiles.
He described first discussing the kidnapping with Evans, testifying that one day Evans and his wife and Bromley and his wife were at the grocery store, and
tMs had been brought up there while we was there about the kidnapping, and he [Evans] asked me sometMng about “Well, this guy wants some help or sometMng,” and I said, well, I said, “Jim,” I said, “I can’t do it.” I said, “I wouldn’t have any part of it.” He said, “Well, he needs somebody to drive the car.” I said, “Well, I am sorry,” I says, “I couldn’t because if I get picked up one more time, I would do some flat time. I just can’t see it.”
He testified that, after this initial conversation with Evans about the kidnapping, he first met Tilford Baker at the “Jolly Rogers Cafe out on 112th and Vickery Road” about the 7th or 8th of November, 1965. Bromley described the meeting and conversation:
I and Jim Evans went out to the Jolly Rogers Cafe to have a cup of coffee, and we walked in and Mr. Baker was sitting up at the counter drinking coffee, and I and Jim sit down at the table, and we got our coffee and was sitting there talking, and Mr. Baker come over and he sit down besides us. And Jim looked at me a little bit funny, he said, “Dean,” he said, “tMs is the man.” And I knew what he was talking about, about this kidnapping. It just *160happened the night before that he told me about this, and I kind of laughed, and I said, “Yes, sir, okay.” I says, “Okay.” We was sitting there, in there and drinking coffee, and the conversation kind of built up to this, and he started talking about it, telling us how it was going to come off, and everything. And I had thought the guy was some kind of a nut, or something, because—I mean, you just don’t talk like that, you know. I mean, you know, some kind of a kook. So I listened to it. Then I kind of just got up and laughed it off, and started to walk out.
He explained Baker’s first threat in this way:
Then Mr. Baker come over and tapped me on the shoulder, and reached in his pocket and pulled out a small hand gun, and he said, “You know too much.” He says, “Come back over and sit down and have coffee,” he says, “and act like nothing has happened.” And—I mean, at that time, a man with a gun, he is boss, so I listened to him. I went back over and had coffee.
We thus leave Bromley in a claimed state of fear while having coffee; but the fear must have subsided, for later that afternoon Baker drove both Evans and Bromley in his truck over the route proposed to be taken in kidnapping the Hyde boy. After this partial rehearsal of the crime, Bromley, according to his own testimony, went home for the evening meal, separating himself from Baker by several miles. During the period of their planning and rehearsing the kidnapping, he says Baker threatened him three or four times—but the threats occurred over an interval of probably 10 days. Bromley’s testimony accordingly reveals that he was out of Baker’s presence most of the time during the planning and rehearsal of the criminal scheme, during which interval he had unimpeded access to a telephone, the police station, sheriff’s office and the offices of the FBI.
For example, one threat, says Bromley, occurred in the Jolly Rogers Cafe, but after that incident the three met at the Aba-Daba Cafe near Ponder’s Corner at 6:30 a.m., synchronized their watches, drove to another place called Brownie’s Cafe, and then Bromley took Baker back to the Aba-Daba Cafe, preparatory to carrying out the kidnapping. Thus, the three men were in and out of automobiles *161several times on the morning of the scheduled kidnapping in the presence of other persons with several opportunities for Bromley to withdraw from Baker’s presence without any risk of immediate harm.
Bromley’s testimony showed that he stayed in the criminal conspiracy and actively continued with the planning despite innumerable chances to get away from Baker. Describing from the witness stand the first abortive attempt at the kidnapping, Bromley said that Baker told Evans to go to the Little Park Cafe on Pacific Avenue and that Baker and Bromley then
got out in the car, and we pulled across the street at the Pizza Haven out at Ponders Corner. And we was getting ready to go through this kidnapping, getting ready to pull off this kidnapping then. And Mr. Baker, I don’t know why, but he turned on the radio, and the news was on, and it told the time, and he said, “Oh, Jesus, we are late.” He said, “Get going.” And I started the car, and we left.
And we got out in front of the Hyde residence, and little Charles Hyde, he was across the street, already across the street, on the highway down into the Country Club.
And Baker said, “Get up there and get turned around.” He says, “If anything goes wrong now,” he says, “there is some people that is going to lose some heads over this.”
So I drove up the road, and I turned around real quick, and we come back. By this time, this little Charles Hyde, he was inside the Country Club. It was too late then. And this (indicating) nut, he was going to go ahead and go through with it. He was going to go ahead and pick up the boy right there with everybody standing around and everything. And he was a real kook of some type. And no, sir, boy, no part of it for me. (Italics mine.)
After this unsuccessful effort, Bromley and Baker returned to the Little Park Cafe to let Evans know of their failure; Bromley, in his testimony, fixed the time of the attempt, failure and foregoing conversation at either the 12th, 13th or 14th of the month. He and Evans did not see Baker again for a few days after their first attempt at *162kidnapping. Thus, at this point in the plot, Bromley was out of Baker’s presence for considerable periods of time and could not possibly claim to be in danger of instant death or grievous injury. Showing innumerable opportunities not only to withdraw from the criminal enterprise, but equal chances to avoid danger of instant death or grievous injury from Baker during the long intervals he was away from Baker in the course of planning and preparing for the kidnapping, Bromley’s testimony continues:
Q. Did he then tell you when there would be the next attempt? A. Yes, it was on a Monday, I believe. Saturday or Sunday I didn’t talk to him at all. I was busy with my wife moving. Q. Pardon? A. I and my wife was busy on a Saturday and Sunday. We didn’t see him then, but the next day, Monday, I believe it was a Monday, yes. He, him and Jim Evans came over to the house Monday evening. We had some company over there, a fellow that I was working with. Him and his wife came over to see us, and Jim, he came up to the door. Baker told him to come up to the door and talk to me, so I, they wanted me to come out and go down to the Jolly Roger and have coffee with them. I had company and everything, and I told them, you know, “No, I couldn’t leave right then. My company was there, and everything.” And they said, “Well,” they said, “meet us there, you know, tomorrow morning,” which would be Monday morning. He said, “Meet us there Monday morning.” This was Mr. Baker. So I said, “All right.” So Monday morning I went out there, and Mr. Baker was there. He was there in the parking lot. He pulled in just before I did. And Mr. Evans was just in. When we pulled in, he was sitting there drinking coffee, and that is when he told us that the kidnapping was on for Wednesday, the 17th. Q. He told you that it was set for the 17th? A. Yes, yes.
He then went on to say that Baker told them the kidnapping was on for the 17th, a Wednesday. Bromley, on leaving that meeting with Baker and Evans, then took his wife with some of her belongings to the home of his wife’s mother. He testified that
I seen Mr. Baker the night of the 16th, and he told us, he said for us to be sure and be there at six o’clock on the 17th out at the Abba Dabba Cafe. So I and Jim Evans, we *163decided that we was going to talk this nut out of this the next morning. So we go over there the next morning. I seen Jim Evans the next morning. We went to the Abba Dabba Cafe, and— Q. Was Baker there at that time? A. Yes, he was. Q. Where was he, Dean? A. He was in the front seat of the car. Q. Now, was there anything that he had to tell the time with? A. Yes, he had a, he had brought a clock from home to make sure this time the time was right, you know.
Bromley’s testimony thus shows that he was away from Baker most of the night preceding and until 6 a.m. of the day of the kidnapping and, therefore, was free from the danger of instant death or grievous bodily injury during that long interval. While under no duress and coercion, as those terms are known to the law, he nevertheless kept the 6 a.m. rendezvous at the Aba-Daba Cafe for the planned purpose of carrying out the kidnapping.
Evans, Baker and Bromley—according to Bromley’s testimony—met at the Aba-Daba Cafe, had coffee together and were threatened by Baker while trying to dissuade him from the kidnapping. But he testified too that he had procured some stolen license plates from a neighbor boy, purchasing them for a pack of cigarettes, and from the witness stand admitted putting the stolen plates on the car they were to use in the kidnapping. Other evidence in the trial, not denied by Bromley, proved that he and Evans had earlier driven to Seattle and rented the car to be employed in the kidnapping, thus putting many miles between them and Baker while at the same time carrying out a vital part in the preparations for the crime.
The confession goes on. Bromley testified that, on the morning of the kidnapping, he had dressed in an old work shirt, an old jacket, old boots he had been wearing when working in cement, and corduroy jeans; he put tape across his chin and a strip of tape across his face beneath his nose, and wore wrap-around dark-colored glasses. Baker also had tape across his chin and face. With Bromley at the wheel and Baker in the front seat, they drove toward their planned seizure of young Charles Hyde on the morning of *164the 17th. Here are further excerpts from Bromley’s testimony, showing the detailed planning and precise execution of the scheme. Bromley, referring to Baker, said:
He, when we started out, he was in the front seat. And we went across the freeway bridge, I don’t know what that is, just a freeway bridge that goes across the freeway, the bridge over Ponders Corner, and then we went down to Gravelly Lake Drive. And we got up to a place there where you could turn aromad, just a little side road, and he had me stop there and turn around. I turned around, and he got out, and got in the back seat.
And then, describing the actual kidnapping of the boy— bearing in mind that all of this time Bromley is driving the kidnap car and wearing tape on his face and colored glasses —he testified:
All of a sudden—I was sitting there, no cars was around, and I seen the boy come and get in the back of the car. I just kind of glanced up over my shoulder, and Mr. Baker was helping him into the car. And he just got him into the car, you know, put him in there, and—he didn’t actually put him there, he just helped him into the car. And then he drove [sic] me to drive on. He said, “Ride, Clyde,” or something like this, and we left. . . . He [Baker] was in the back seat. He was just sitting right next to the boy. He had the boy sit there for a little while to make, so it wouldn’t look so suspicious or anything. We rode on across the freeway bridge, and at that time there was some cars pulling over down to the freeway, and he just helped the boy down on the back seat, and down on the floor board to the back of the car. And then he just laid a blanket, some kind of a blanket over his head. And then he got up, he sat up straight, and he put the boy’s books over in the front seat with me. And then he just, we got out, started across the reservation, the Army Reservation, and he just crawled over into the seat with me.
Bromley then testified that somewhere in an isolated area they stopped the car, took off the stolen license plates, and restored the rented car’s regular plates. With the boy concealed on the floor of the back seat, Bromley drove the car to Baker’s house; Baker got out and opened the garage door, and Bromley drove the car into the garage. Bromley *165testified that Baker “had the little boy get out and lay down on the canvas, and then we picked him up and carried him inside the house.”
According to Bromley’s testimony, the final disposition of the boy had not been agreed upon—that is, the criminals had not decided when and where he would be left. Inside the house, Bromley heard both Baker and the boy talk to the boy’s father on the telephone, and “Then we picked the boy up, and took him back out to the garage, and put him back in the garage,” where they kept the boy for some time under a blanket.
The confession in open court proceeds. After a while, they drove out to the Park-N-Shop to a rendezvous with Evans:
And so the first time we got there—this was after the call had been made to Mr. Hyde—we ended up near, at the Park-N-Shop some way. He got out, him and Jim Evans walked into that, the Park-N-Shop for a few minutes, and they was right back out. And then we left again. Then the second time that we come around was for the ransom pick-up.
Note that Evans and Baker had a conference in the Park-N-Shop grocery store while Bromley stayed in the car where the boy as his prisoner lay concealed. Thus, according to Bromley, they made the ransom pickup on a second trip to the Park-N-Shop. After getting the money, they drove with the boy out on to the river road (toward Puyallup) and then, reversing their direction, swung north toward the north end of the city of Tacoma. Out near the bay in the north end of the Old Tacoma district, they found an old cement shack, and, testified Bromley:
Yes. I had him hold his arms together, you know, wrist to wrist, and I taped his, taped it around his wrists. And then I handed him a piece of tape—well, before I taped his wrists, I had, handed him a piece of tape, and had him put it over his eyes, and over his mouth. . . .
Yes, his wrists were together like this (indicating), fairly far apart because I had to get the tape back around through his hands.
*166There they left the boy. Bromley says that later he, with his wife, followed Baker to Steve’s Gay 90’s (a restaurant in South Tacoma) where Baker gave Bromley his share of the ransom money. According to Bromley’s testimony, he and his wife had their personal traveling effects with them in their car when they followed Baker to the restaurant and Bromley had made airplane reservations for himself and his wife to Little Rock, Arkansas. They got on the plane the next morning with Bromley’s share of the ransom money in his possession. He rang down his testimony with a final assertion that, except for the threats against his life on the 17th day of November, 1965, he would not have participated in the kidnapping.
Thus, from the lips of the defendant in open court under oath on direct examination, when testifying in his own defense, came a complete acknowledgment of guilt—detailed, corroborated, specific, and conclusive as to all elements of the crime, including his intent, volition, and knowledge. His only justification is a claim of duress and coercion through fear. But his own testimony completely excludes any possibility of such a defense and conclusively establishes that such a claim, as a matter of law, was not available to him, for one cannot exculpate his crime through fear unless the danger is shown to be immediate and continuing. If one has a reasonable opportunity to avoid doing the act without exposing himself to danger of instant death or grievous injury, he has not, as a matter of law, been coerced.
The very statute (RCW 9.01.112), under which defendant claimed his immunity from punishment, emphasizes the idea that the danger must be immediate and imminent:
Whenever any crime, except murder, is committed or participated in by two or more persons, any one of whom participates only under compulsion by another engaged therein, who by threats creates a reasonable apprehension in the mind of such participator that in case of refusal he is liable to instant death or grievous bodily harm, such threats and apprehension constitute duress, which will excuse such participator from criminal prosecution. (Italics mine.)
*167Blackstone long ago said it differently, emphasizing not the immediacy but the genuineness of the fear and excluding it as a defense in all cases for murder:
Another species of compulsion or necessity is what our law calls duress per minas; or threats and menaces, which induce a fear of death or other bodily harm, and which take away, for that reason, the guilt of many crimes and misdemeanors, at least before the human tribunal. But then that fear which compels a man to do an unwarrantable action, ought to be just and well-grounded; . . . . And therefore, though a man be violently assaulted, and has no other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder, for he ought rather to die himself than escape by the murder of an innocent. 4 Blackstone, Commentaries 30 (Adapted by Robert Malcolm Kerr, 1962).
Our statute, however, as we have noted, requires that the danger must be immediate to constitute a defense and to this the courts have added another sensible condition—that it must be continuing with no chance for avoidance. Shannon v. United States, 76 F.2d 490 (10th Cir. 1935) sets forth the federal rule as follows, at 493:
Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion and is not entitled to an instruction submitting that question to the jury.
If, then, the danger from which the coercion and duress are claimed to emanate is not immediate, imminent and impending and does not create a reasonable fear of instant death or grievous bodily injury, and does not continue throughout the time when the crime is being perpetrated, it is no true duress and coercion at law. Similarly, threat or fear of future injury will not constitute a defense of duress and coercion. 21 Am. Jur. 2d Criminal Law § 100 (1965). See R. I. Recreation Center v. Aetna Cas. & Surety Co., 177 F.2d 603, 12 A.L.R.2d 230 (1st Cir. 1949); Shannon v. *168United States, supra; State v. St. Clair, 262 S.W.2d 25, 40 A.L.R.2d 903 (Mo. 1953); State v. Good, 110 Ohio App. 415, 165 N.E.2d 28 (1960); Newman & Weitzer, Duress, Free Will and the Criminal Law, 30 S. Cal. L. Rev. 313 (1957).
Bromley’s testimony discloses his intentional participation in the planning, execution of, and flight from the completed kidnapping of young Charles Hyde during a period of about 10 days. His testimony reveals that, throughout the criminal scheme, he was free of the danger of instant death and grievous bodily harm for much greater periods than he was exposed to it. All during the development of the criminal plan and throughout the conferences among the three criminals, and continuing on into the first abortive attempt, Bromley, by his own testimony, had innumerable chances not only to withdraw from the criminal enterprise, but to protect himself from the danger claimed to be menacing him, by reporting his fear to the sheriff, the Tacoma police or the FBI—or to his neighbors, relatives and friends. Indeed, during a large part of the planning stages, police and sheriff’s offices were undoubtedly more accessible to Bromley than Bromley to Baker.
There being no substantial evidence to support coercion and duress as that defense is known to the law, defendant was not entitled to instruction No. 25 which submitted it to the jury. In instructing upon coercion 'and duress, the court gave defendant a gratuitous benefit, for one is not entitled to an instruction unsupported by the evidence. Accordingly, it should be quite clear that, when the state sought to meet an unwarranted defense by erroneously proving through the testimony of Dr. Harlan McNutt that Bromley’s personality was not readily susceptible to coercion and duress by a fellow conspirator, the error was manifestly harmless and trivial.
One collateral point should be mentioned: In reciting the most significant parts of Bromley’s direct examination to show that he actually confessed under oath in open court, it is not implied that his testimony had the procedural effect of a plea of guilty or empowered the court to thereupon *169dismiss the jury and enter a judgment of guilty. The open-court confession, however damning it may have been as to the facts, did not deprive defendant of the right to a jury trial for his plea of not guilty gave him the right to their deliberations and findings expressed in a verdict. Const., art. 1 § 21; Const., art. 1 § 22 (amendment 10); RCW 10.01.060; 2 Wharton, Criminal Evdence § 336 (12th ed. 1955). His testimony did not preclude the ultimate power of the jury to render a verdict, but, rather, obviated the defense of coercion and duress.
Did the court discharge its full constitutional duty to this defendant? Indeed it did. It supplied him with highly competent and industrious counsel; it gave full opportunity for investigation and preparation of a defense with the power of subpoena and the right to confrontation of witnesses. It brought him to trial on specific charges before a fair and impartial jury drawn from the county at large. The court allowed him full opportunity to testify or refrain from testifying. That he elected to take the witness stand, revealing through several thousand words of testimony his participation in a despicable crime, in a desperate effort to erect a defense where none existed does not detract from the scrupulously high standards maintained by the trial court.
When a man is guilty, it is altogether right that he be adjudged guilty. There being no doubt as to defendant’s guilt, and an abundant record that his guilt was fairly arrived at, I would not reverse on what seems to me to be a harmless error. Accordingly, I would affirm.