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, *336 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. BURLINGTON, 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.”
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, toоk 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.
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 sentеnce 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 (Kid-naping 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 сonstitutional 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 defendаnt “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.
*337 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 “Kid-naping”, 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, сarried 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 *338 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. Oswаld, Mo.,
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 early days of the Forty-First General Assembly, three bills were introduced with reference to kidnаping. The Journal of the House, p. 49, shows H.B. 77 was introduced January 10, 1901, described as, “An act to amend section 1854, Article 2, Section 15, Revised Statutes of Missouri 1899, relating to kidnaping; read first time. * * * ” On the same date and same page of the House Journal, H.B. 84 was introduced and described as being, “An act to repeal section 1854, Chapter 15, Article 2, Revised Statutes 1899 in relation to kidnaping and enacting in lieu thereof a new section; read first time * * * ” (Emphasis ours.)
House Journal, p. 130, and Senate Journal, p. 128, reflect the following message was received by both houses from the Governor :
“I respectfully urge the speedy enactment of a law which will permit the infliction of the death penalty in cases of kidnaping for ransom.
“The recent atrocious crime in our sister State of Nebraska strongly appeals for the passage of such a law. I am sure it will be cordially approved by every father and mother in this State.
“Under our statutes train robbery is properly punishable by death or imprisonment in the State penitentiary. It seems that the crime of child robbery for the purpose of ransom should be prohibited under penalties as severe as the crime of train robbery.
“ALEX A. DOCKERY”
*339 Senate Journal, p. 80, reflects the introduction of S.B. 33 entitled, “An act to punish anyone guilty of kidnaping or carrying away any child or other person; * * * ” Senate Journal, p. S31, reflects the concurrence by the Senate to a House amendment to the title of S.B. 33, by adding thereto the words, “for purpose of obtaining ransom, with emergency clause.” Thereafter, S.B. 33, entitled, “AN ACT to provide for the punishment of any one guilty of kid-naping or carrying away any child or other person for the purpose of obtaining ransom, with emergency clause”, passed both Houses and was signed into law by Governor Dockery on March 9, 1901. Laws of Missouri 1901, p. 133.
From the foregoing it appears the general assembly hаd before it the opportunity of amending the then existing kidnaping statute by H.B. 77 or repealing it and enacting a new section by H.B. 84 but rejected both avenues and instead enacted an entirely new section. It further appears that the attention of the general assembly was pointedly directed toward the need for legislation punishing the specific crime of kid-naping for ransom, and in enacting the new law the general assembly knowingly left standing § 1854, Article 2, Chapter 15, relating to kidnaping in general.
Further evidence оf the general assembly's continuing intent not to repeal § 1854 (§ 559.240) is the act of the Forty-Fifth General Assembly in 1909 of amending § 1854 of Article 2, Chapter 15, of the Revised Statutes of 1899. See Laws of Missouri 1909, p. 450. It is clear that the Missouri legislature never intended to repeal § 1854, Article 2, Chapter 15 (now § 559.-240), but, to the contrary, the general assembly by its acts evidenced a clear intent that it remain in force.
Nevertheless, if the legislature enacts two laws on the same subject that are irreconcilably repugnant to each other, the latter act will, in law, have the effect of repealing the former. O’Brien v. Sedalia Trust Co.,
In support of appellant’s position against implied repeal, he cites State v. Gilman,
Respondent cites State v. Rosegrant,
It is significant, howеver, that Rosegrant and McGee were prosecutions under § 4020, R.S.1929 (now § 559.230), in which the charging instruments alleged kidnaping for the purpose of ransom or reward; the evidence supported the allegations and the instructions required a finding of kidnaping for ransom or reward. The issue in Rose-grant involving ransom or reward was not whether it was a necessary element to prosecution under § 4020, R.S.1929. In Rose-grant the defendant’s attack upon the indictment was that it charged conjunctively in the same count two separate and distinct offenses which allegedly were in *340 herently inconsistent — namely, (1) kidnap-ing for the purpose and intention of causing another to pay a sum as ransom for the release of the person abducted, and (2) kidnaping for the purpose and with the intention of causing another to offer to pay a sum as a reward for the return of the person abducted. Rosegrant’s contention was based on his interpretation of the words appearing in the last half of paragraph one of § 4020 (§ 559.230) beginning “abducted for the purpose of and with the intention of causing * * * to pay or offer to pay * * * ransom or reward”. (Emphasis ours.) Neither party contended that the monetary element — whether it be called ransom or reward — was not an essential element to prosecution under this section. In Rosegrant the court said, loc. cit. 969: “While appellant’s demurrer attacks the sufficiency of the * * * indictment * * * the attack in appellant’s brief is limited to the acts prohibited by the second subdivision of the statute— an abduction for ransom or reward — аnd do not embrace the acts set out in the indictment and found in the.first subdivision of the statute * * The court then, rather gratuitously, stated that “All that portion of the indictment referring to the acts of abduction for ransom or reward might be treated as surplusage and rejected”. (Emphasis ours.) This and other language of the Rosegrant opinion tending to imply that the monetary element — ransom or reward — is not necessary to prosecution under § 559.230 was not necessary to thе decision in that case and constitutes dicta insofar as the essential elements of an offense under § 559.230 are concerned.
We adhere to the holding of Rosegrant that the second subdivision of paragraph one of § 559.230 relating to ransom or reward does not, within its own terms, define two offenses but does set forth those elements relating to intent to obtain or the obtaining of consideration for the release of the person abducted.
As notеd above, the respondent also relies on State v. McGee,
Parenthetically we observe from a reading of the briefs filed in both Rosegrant and McGee, supra, which are a part of our records, that the attorney general’s briefs for the State of Missouri continually acknowledged the presence of ransom or reward as a necessary element to conviction under § 559.230 (then § 4020, R.S.1929).
Appellant calls our attention to State v. Ashworth,
Under our system of government, the responsibility for the enactment of laws proscribing certain conduct and the fixing of the limits of punishment is a legislative and not a judicial function. State v. Nord, Mo.,
The title to § 559.230 specifically proscribes the аct of “kidnaping * * * any * * * person for the purpose of obtaining ransom, with emergency clause.” (Emphasis ours.) The specificity of this title in view of the legislative history of this act, and considering the emergency clause which recognizes that there was no adequate provision in the statutes for kid-naping for “the purpose of obtaining a ransom or sum of money for their release”, leads us to the conclusion, and we so hold, that the element of ransom or reward as set forth in § 559.230 is a necessаry element to prosecution under § 559.230.
We hold that the enactment of § 559.230 did not effect an implied repeal of § 559.240 but created a new offense with an attendant substantial increase in the range of punishment over § 559.240. We are supported in this conclusion by rules of construction which require that a penal statute be construed with a degree of strictness commensurate with the severity of the penalty it imposes, and where the penalty is onerous nо one can be held to have violated its provisions unless his acts come within both the letter and spirit of the law. State ex inf. Collins v. St. L. & S. F. R. Co.,
The two statutes — §§ 559.230 and 559.240 —are not in irreconcilable conflict. Section 559.230 (Kidnaping for Ransom) is restricted in its availability to those cases wherein the element of ransom or reward is present. Section 559.240 (Kidnaping) is available regardless of the presence of the element of ransom or reward.
The indictment upon which mov-ant-appellant was tried and found guilty by a jury did not allege the element of ransom or reward. It is necessary to allege all the essential elements of the crime intended to be charged. Criminal rule 24.01, V.A.M.R., State v. Cunningham, Mo.,
Respondent has insisted in its brief and oral argument that the prosecution was intended to be under §
559.230
and directs our attention to the indictment wherein it is alleged “ * * * contrary to Section
*342
559.230” as proof of the validity of the respondent’s position. However, the recitation in the indictment of a statute number is not conclusive as to the offense charged and may be treated as surplusage. State v. Ashworth,
In the recent case of State v. Nolan, Mo.,
In view of the decision reached in this case, it is not necessary that we consider in detail the other grounds asserted as a basis for relief.
Accordingly, we reverse the order and judgment of the trial court and remand the cause with directions to vacate and set aside the judgment and sentence imposed on Robert Ernest Bullington on November 10, 1966, in criminal cause number 2619-N and to grant him a new trial and for further proceedings consistent with this opinion.
Notes
. All statutory references are to RSMo 1969, V.A.M.S., unless otherwise indicated.