Bullington v. State, 55046

• Citation: 459 S.W.2d 334
• Decision Date: 09 November 1970
• Docket Number: No. 1,No. 55046,55046,1
• Parties: Robert Ernest BULLINGTON, Appellant, v. STATE of Missouri, Respondent
• Court: United States State Supreme Court of Missouri

Page 334

459 S.W.2d 334

Robert Ernest BULLINGTON, Appellant, v. STATE of Missouri, Respondent.

No. 55046.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1970.

Robert F. Schlafly, St. Louis, for appellant.

John C. Danworth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

BARODGETT, Judge.

This is an appeal by prisoner-petitioner from the judgment of the trial court denying his motion for relief under Supreme Court Rule 27.26, V.A.M.R., after a full evidentiary hearing.

On December 14, 1965, appellant was charged by indictment with three prior convictions of felonies and kidnaping while armed, to which appellant pleaded not guilty.

On the day the jury trial began, the state deleted the prior convictions from the indictment and the case proceeded on the charge of kidnaping while armed. The charging portion of the indictment is as follows:

'That ROBERT E. BULLINGTON between 10:00 P.M. on November 5th, 1965 Briefly, the evidence supported a jury finding that on November 5, 1965, appellant had a date with a girl whom he had dated several times on prior occasions. They returned from this date and parked in front of the girl's house in St. Louis, Missouri. Appellant attempted to kiss her and to make sexual advances. She resisted and appellant forcibly held her in the car, took a gun from the glove compartment and put the gun against her ribs. She heard two clicks of the gun and appellant threatened to kill her if she continued to resist. Appellant took the girl, who testified she had never had intercourse before, to Illinois where he forced her under threat of death to have sexual intercourse with him twice. Appellant then drove the girl to her home and warned her not to call the police.

and 10:00 A.M. on November 6th, 1965, in the City of St. Louis, State of Missouri, wilfully, feloniously, and without lawful authority did seize, confine, kidnap and abduct the person of (victim's name), and caused (victim's name) to be secretly confined against her will, and that the said ROBERT E. BULLINGTON, did commit the acts aforesaid while armed with a pistol; to-wit: a .32 caliber revolver; contrary to Section 559.230 and 556.140, Missouri Revised Statutes, 1959, in such case made and provided, and against the peace and dignity of the State.'

Instruction No. 1, inter alia, told the jury that if they found defendant guilty they could assess punishment at death or at imprisonment for such time as the jury deems proper; not less, however, than five years. The death penalty was sought by the state. The jury returned its verdict as follows: 'We, the jury in the above entitled cause, find the defendant guilty of Kidnapping while Armed as charged and assess his punishment at imprisonment in the penitentiary for the remainder of his Natural Life.'

On November 10, 1966, the trial court entered up judgment and sentence on the verdict and sentenced the appellant to life imprisonment. Appellant then pleaded guilty to another charge of stealing over fifty dollars and was sentenced to five years to be served concurrently with the life sentence imposed on the kidnaping conviction. The instant motion and appeal does not involve the five-year sentence.

In appellant's instant 27.26 motion and on this appeal, he asserts four grounds for setting aside the verdict, judgment and sentence on the kidnaping charge, to wit:

1. Appellant was indicted, tried, convicted and sentenced under the wrong statute, § 559.230, RSMo 1959 (1969) ¹ (Kidnaping for Ransom), resulting in a life sentence; the offense established by the evidence, violation of § 559.240 (Kidnaping without Ransom), has a maximum of ten years.

2. Material evidence, obtained by the state during illegal custodial interrogation, was introduced at the trial in violation of appellant's constitutional rights.

3. Appellant was denied effective assistance by counsel of his own choosing in violation of his constitutional rights.

4. The jury after selection, but before being sworn, was allowed to separate contrary to the intent of statute in capital cases.

Appellant's first point is one of law and not of fact. The indictment alleges appellant kidnaped a girl and caused her 'to be secretly confined against her will,' and that defendant 'did commit the acts aforesaid while armed with a pistol; to-wit: a .32 caliber revolver; contrary to Section 559.230 and 556.140, Missouri Revised Statutes, 1959, * * *' It stands admitted that the element of ransom or reward was not charged, proved nor submitted and was not involved in this prosecution in any respect.

Appellant's position is that ransom or reward is an essential element to prosecution under § 559.230. Respondent's position is that the enactment of § 559.230 in 1901 impliedly repealed § 559.240 and, therefore, § 559.230 is the only Missouri law relating to kidnaping and the element of ransom or reward is not an essential element to conviction under it.

There are two kidnaping statutes in Missouri. Section 559.240, entitled 'Kidnaping', first appears in the Revised Statutes of 1825 and, except for an amendment in 1909, has continued in substantially its original form to the present. It provides:

'559.240. Kidnaping

'1. If any person shall, wilfully and without lawful authority, forcibly seize, confine, inveigle, decoy or kidnap any person, with intent to cause such person to be sent or taken out of this state, or to be secretly confined within the same against his will, or shall forcibly carry or send such person out of this state against his will, he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding ten years.

'2. Any person charged with such offense may be tried in any county into or through which the person so seized, inveigled, decoyed or kidnaped shall have been taken, carried or brought.'

In 1901 the legislature enacted the second kidnaping statute which is presently § 559.230. It appears in its original form in Laws of Missouri 1901, p. 133, Forty-First General Assembly, as follows:

'(S.B. 33)

CRIMES AND PUNISHMENTS: Kidnaping.

'AN ACT to provide for the punishment of any one guilty of kidnaping or carrying away any child or other person for purpose of obtaining ransom, with emergency clause.

'SECTION

1. Kidnaping for purpose of ransom punished by death or imprisonment at option of jury.

SECTION

2. Emergency clause.

'Be it enacted by the General Assembly of the State of Missouri, as follows:

Section 1. If any person or persons shall wilfully, without lawful authority, seize, confine, inveigle, decoy, kidnap or abduct or take or carry away by any means whatever, or attempt so to do, any child of any age, or any person or persons and attempt or cause such child or person or persons to be secretly confined against their will, or abducted for the purpose and with the intention of causing the father or mother or any other relative of the person so abducted, or any one else, to pay or offer to pay any sum as ransom or reward for the return or release of any such child or person or persons, said person or persons so guilty of the above mentioned acts or act, shall, on conviction, be punished by death or imprisonment in the penitentiary not less than five years, at the option of the court or the jury assessing the punishment. Any person or persons charged with such offense may be tried in any county into or through which the person or child so seized, inveigled, decoyed, kidnaped, abducted or otherwise taken shall have been carried or brought.

Sec. 2. There being no adequate provision in the statutes of this state providing for kidnaping or abducting children or other persons for the purpose of obtaining a ransom or sum of money for their release, creates an emergency within the meaning of the constitution, and this act shall take effect from and after its passage and approval.

Approved March 9, 1901.'

In 1909, eight years after the enactment of § 559.230, the general assembly amended the original kidnaping act passed in 1825 (now § 559.240). Since 1909, both §§ 559.230 (Kidnaping for Ransom) and 559.240 (Kidnaping) have remained in their present form.

The repeal of a statute by implication is a matter of legislative intent, is not presumed, and is not favored. State v. Oswald, Mo., 306 S.W.2d 559, 562; Fleming v. Moore Bros, Realty Co., 363 Mo. 305, 251 S.W.2d 8, 15. Where two acts are seemingly repugnant, they must, if possible, be so construed that the latter may not operate as a repeal of the earlier one by implication; if they are not irreconcilably inconsistent, both must stand. State ex rel. Priesler v. Toberman, 364 Mo. 904, 269 S.W.2d 753, 754; State ex rel. and to Use of Geo. B. Peck Co. v. Brown, 340 Mo. 1189, 105 S.W.2d 909, 911; State v. Ludwig, Mo., 322 S.W.2d 841, 848. Repeals by implication usually arise where a latter statute covers the whole subject matter of an earlier statute or where its provisions are so repugnant to the other as to make the two statutes irreconcilable. State v. Oswald, supra; State ex rel. Gregory v. Brodie, 161 Mo.App. 538, 143 S.W. 69, 72; 82 C.J.S. Statutes § 290, p. 489. Where there are two or more provisions relating to the same subject matter, they must, if reasonably possible, be construed so as to maintain the integrity of both. State ex rel. R. Newton McDowell Ins. v. Smith, 334 Mo. 653, 67 S.W.2d 50; Gross v. Merchants Produce Bank, Mo.App., 390 S.W.2d 591, 598.

While the statutes themselves constitute the principal evidence from which the intent of the legislature must be discerned, we may consider the official Journals of the House and Senate as indicia of legislative intent where, as here, two laws exist and ambiguity arises from the fact of their concurrent existence.

Prior to the Forty-First General Assembly, 1901, the only law in Missouri relating to kidnaping was § 1854, Article 2, Chapter 15, R.S.1899. This section was enacted in 1825 and is now § 559.240 (Kidnaping without Ransom). In the...