author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Nathan TAYLOR, Jr., Appellant.
    No. 49910.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.

      Hugh J. White, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, James S. Corcoran, Sp. Asst. Atty. Gen., St. Louis, for respondent.

      . The rule is otherwise in cases where it is necessary to the validity of the indictment to allege the owner of property, as in cases of burglary. State v. Wright, 339 Mo. 41, 95 S.W.2d 1159 [4, 5].

   HOUSER, Commissioner.

Nathan Taylor, Jr., was convicted by a jury of unlawfully selling a narcotic drug, in violation of § 195.020, V.A.M.S. The jury assessed a penalty of eight years’ imprisonment in the penitentiary. On this appeal defendant relies upon four points, one of which is that the court erred in refusing to give an instruction offered by defendant, submitting the defense of entrapment.

The refused instruction directed a verdict' for defendant upon a finding that the federal agent to whom the sale is alleged to have been made lured, urged or encouraged defendant to commit the offense charged in order to prosecute him for it when defendant would not have committed an offense of that general character except for the urging of the agent; that the criminal intent or willing disposition to commit the crime did not originate in the mind of the defendant, but in the mind of the federal agent.

The state conceded in argument that the offered instruction was correct in form and substance as a statement of the law of entrapment, so we do not pass upon that question. The state sought to uphold its refusal on the ground that there was not a sufficient evidentiary basis therefor; that there was no evidence that the agent implanted a criminal intent in the mind of defendant or induced or lured him to commit the offense.

In reviewing the evidence on this issue we confine ourselves to the testimony favorable to defendant. In important particulars his testimony was contradicted by that of the narcotics agent, but it was the exclusive function of the jury to pass upon the credibility of the witnesses and determine which spoke the truth. “Ordinarily the defense of entrapment raises a question which should be submitted to the jury under proper instructions, this being particularly true where the testimony of accused, at face value, supports the defense.” Anno: Entrapment—Narcotics Offense, 33 A.L.R.2d 883, loc. cit. 902. The refusal to instruct on the subject was the equivalent of a finding that as a matter of law there was no entrapment. If the evidence favorable to defendant supported the instruction offered it was a question for the jury and not for the court alone, “regardless of what either the lower court or this court may think about appellant’s guilt.” Hamilton v. United States, 5 Cir., 221 F.2d 611, 613.

The state’s principal witness, James Snokhaus, a federal narcotics agent, worked in an undercover capacity among narcotic violators and suspects in St. Louis and vicinity for several months, trying to make purchases of narcotics. He assumed identity with narcotic traffickers, and associated freely with them, with the object of arresting violators. Eventually he “rounded up” and caused the arrest of thirty suspects, including this defendant. Snokhaus worked with an informer named Jimmy Lewis, an associate of people engaged in this illicit traffic. Lewis was employed at a drug store. At the time he was employed to work with Snokhaus, Lewis had been arrested by the city police department and was under investigation in connection with a theft of narcotics. Snok-haus posed as a close friend of Lewis, and held himself out to be a pharmacist, so as to make his association with Lewis appear natural and account for his desire to purchase narcotics in considerable quantities. Snokhaus first met defendant on March 24, 1962. The sale which is the subject of this prosecution is alleged to have occurred on July 7, 1962. The foregoing facts were testified to by Snokhaus. The following facts could have been found, partly from the testimony of Snokhaus and partly from that of defendant. Prior to July 7, 1962 defendant had never handled, sold, used or trafficked in narcotics. Although defendant had been convicted of forgery of government checks in 19SS there is no evidence that he had been in any trouble thereafter, or that he had ever been convicted of any violation of the narcotics laws, or that he was reputed to be a trafficker in narcotics, or an addict. Snokhaus conceded that neither Lewis nor any other person had told him of ever having purchased narcotics from defendant. Snokhaus did not know of anybody (other than himself) who had bought narcotics from defendant. Between March 24 and July 7 Snokhaus, pretending to be in the market for marijuana, initiated conversations with and visited defendant on five different occasions. Defendant did not know that Snokhaus was a federal narcotics agent. On each of these occasions Snokhaus would tell defendant that he would like to purchase, or “make a buy,” of marijauna, and ask defendant if he could “get him some” or suggest some contact from whom Snok-haus could get it. This suggestion was always accompanied by an offer by Snokhaus to pay defendant $5 for each can of marijuana bought through defendant. On one of these visits to defendant’s home Snok-haus, in an effort to fraternize with defendant and secure his confidence, provided beer and drank beer with him. On each of these contacts defendant denied that he had any narcotics and denied that he knew anyone who could supply Snokhaus with narcotics. Defendant did not at any time tell Snokhaus that he handled narcotics. At no time prior to July 7 did he recommend anyone who might supply them or make any effort to go out and find a supplier. None of these meetings with Snokhaus was initiated by defendant. Nor did defendant make any effort to get in touch with Snokhaus’ confederate, Jimmy Lewis. It was always Snokhaus who sought out, found and contacted defendant. On July 7 Snokhaus made another trip to defendant’s house, accompanied by Lewis. On this occasion he fabricated the claim that he wanted to buy marijuana for a party he was giving for some people; said he was “supposed to get it for them,” and asked defendant if he could “get it for him, or get somebody to sell it to him.” Snokhaus said he wanted a couple of cans and repeated his persistent offer that for each can defendant would sell him he would give defendant $5. Defendant was not working, and the plain inference from his testimony is that the prospect of making $10 finally caused him to go out that night with' Snokhaus and Lewis, in the agent’s private automobile, in search of a source of narcotics. Defendant “figured” he might be able to ask someone who would know about it; hoped he could find somebody who could lead him to a supplier. He inquired at a hotel and at the “Music Box.” He learned that marijuana was available in Kinloch, so Snokhaus, Lewis and defendant proceeded to Kinloch, in the agent’s automobile. There defendant encountered one Burl, the only person in Kin-loch defendant knew. He did not know that Burl had access to marijuana, hut he asked Burl where he could get some. Burl, not having any, after making a phone call, told defendant to go to a certain street intersection in St. Louis where he would meet a woman named Darlene, who would supply the narcotic. At the appointed time and place Darlene appeared, and eventually she produced two cans of marijuana, which she transferred to Snokhaus at a tavern, for $40. Snokhaus then paid defendant $10. After July 7, 1962 Snokhaus tried to purchase more marijuana from or through defendant, hut defendant told Snok-haus he did not know “where any was.” Defendant specifically denied that he had ever worked with Burl or shared the purchase price of narcotics with Burl or anyone else, prior to July 7, 1962.

From the evidence of entrapment favorable to defendant the jury could have found that the narcotics agent did not have reasonable cause to suspect that defendant was an actual or potential violator of the narcotics laws; that defendant did not have a predisposition or criminal intent to violate these laws; that Snokhaus’ actions were not those of an enforcement officer merely offering to one who was willing and waiting and already engaged in the illicit traffic, an opportunity to commit an offense. The jury had a right to find that the government agent initiated the idea of purchasing the narcotics; that the crime was the “product of the creative activity” of Snokhaus, that the intention to commit this crime did not originate in the mind of defendant but was planted there by the agent, who, through misrepresentation and deceit, imposition, persistent and repeated solicitation, inducement and promises of money consideration to one in reduced financial circumstances, finally engineered defendant’s participation in criminal activity which but for the pressures applied would never have been undertaken by him.

Lutfy v. United States, 9 Cir., 198 F.2d 760, 33 A.L.R.2d 879, is a case directly in point. There defendant testified that he had never engaged in the narcotic traffic; never had narcotics in his possession or under his control and had no knowledge of others having narcotics until a narcotics bureau employee whose connection with the government was unknown to defendant suggested that he call a certain person, through whom a sale was effected. The government employee visited in the home of the accused, drank with him, posed as a friend, and over a long period of time importuned him to procure narcotics for a fictitious person; introduced accused to other persons who, unknown to accused, were narcotic agents, who also pleaded with him to procure the narcotics for the fictitious person, representing that she badly needed them. Finally, after several beers, defendant succumbed to their entreaties, and armed with money they supplied, bought and transferred narcotics to them. The 9th Circuit Court of Appeals held that on such a showing the defendant was entitled to have the jury properly instructed on the law covering his defense of entrapment, citing Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Woo Wai v. United States, 9 Cir., 223 F. 412; Driskill v. United States, 9 Cir., 24 F.2d 525; Ryles v. United States, 10 Cir., 183 F.2d 944; and cf. United States v. Markham, 7 Cir., 191 F.2d 936. See also Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Morales v. United States, 6 Cir., 260 F.2d 939; United States v. Romano, 2 Cir., 278 F.2d 202; Hamilton v. United States, 5 Cir., 221 F.2d 611, and numerous other federal and state cases collected at 33 A.L.R.2d, l. c. 902. And see 22 C.J.S. Criminal Law § 45(4), p. 151.

The defense of entrapment was available to defendant, was invoked by him, and the jury should have been instructed on the subject. The court erred in deciding the issue against defendant as a matter of law. The state contends that there was no error in refusing to give the instruction on entrapment because that defense is inconsistent with the defendant’s denial of the charge. The general rule is that the defense of entrapment is not available to a defendant who denies that he committed the offense charged. State v. Varnon, Mo.Sup., 174 S.W.2d 146; State v. Egan, Mo.App., 272 S.W.2d 719; Anno.—Availability of defense of entrapment where accused denies participating at all in offense, 61 A.L.R.2d 677. This rule is based upon the assumption that the act charged was committed. It is said that where defendant insists that he did not commit the act charged “one of the bases of the defense is absent.” Rodriguez v. United States, 5 Cir., 227 F.2d 912. However, there are circumstances, of which this case is an example, where the two defenses are not so repugnant that the proof of one necessarily disproves the other. In Henderson v. United States, 5 Cir., 237 F.2d 169, 61 A.L.R.2d 666, a deputy sheriff engaged in detection of liquor law violations persuaded defendant to go into the business of operating an illicit still. The deputy testified that he and defendant arranged with a third party to use the latter’s still and that several runs of liquor were produced. Another government witness positively connected defendant with the operation of the still, the third party with the financing, and the sheriff providing “protection.” Henderson admitted his participation in the operation of the illicit distillery, but denied the connection with the third party or that he was in any way a party to the conspiracy. The trial judge’s refusal to instruct on entrapment was reversed by the court of appeals, which held that defendant could admit operating the still, deny his complicity in the conspiracy and still defend on the ground that the overt acts he committed were done as a result of entrapment; that “he could say, T did not go so far as to become a party to the conspiracy, but to the extent that I did travel down the road to crime, I was entrapped.’ ” 237 F.2d, l. c. 173; that the two defenses were not so repugnant that the proof of the one necessarily disproves the other. And see People v. West, 139 Cal.App.2d Supp. 923, 293 P.2d 166. In the instant case Taylor, admitting his participation in the acts leading up to the transfer of the narcotics,' sought exoneration on two theories; first, that the facts admitted did not constitute a “sale” as between defendant and the government agent and that defendant’s connection with Darlene Moore did not make him jointly guilty with her; second, that he was entrapped. In other words, admitting that he was there; that he searched for and found a source of marijuana and a willing seller, arranged for a sale and was present when the narcotics were transferred, defendant argues that in legal contemplation his acts did not, technically, constitute a “sale” or joint action with the seller, but that if he is wrong as to the legal effect of what he did, he nevertheless should be exonerated on the ground of entrapment. Under these circumstances both defenses are available.

A decision on the other three points relied upon by defendant is not necessary to a disposition of this appeal. In view of the necessity of remand, however, and of the likelihood that one and perhaps all three of these points will be raised again, we will determine them now.

First is the point that the court erred in overruling defendant’s motion to dismiss the information. The information challenged named James A. Snokhaus as the purchaser of the narcotics. The information was filed as a substitute for the original indictment, which named James Larson as the purchaser. Appellant claims that by reason of this difference in names the substitute information charged a different offense from that charged in the indictment, to defendant’s prejudice because he could not adequately defend against this charge of a new set of materially different facts. The following considerations establish that this point is without merit. Supreme Court Rule 24.02, V.A.M.R. authorizes the court to permit an information to be substituted for an indictment at any time before verdict (this substitution occurred the day before trial) “if no * * * different offense is charged and if substantial rights of the defendant are not prejudiced.” Section 195.020, V.A.M.S. makes it unlawful for any person to sell any narcotic drug except as authorized by law. The gist of the offense is the sale of narcotics by an unauthorized person. It is an offense under § 195.020, V.A.M.S., to sell narcotics to any person. For a somewhat analogous situation see State v. Lundry, 361 Mo. 156, 233 S.W.2d 734, 735. While desirable it is not necessary to allege the name of the purchaser in a narcotics case brought under § 195.020, V.A.M.S. because the identity of the person to whom the sale is made does not constitute an essential element of the offense condemned by the statute. The liquor cases held the same way. State v. Brooks, Mo.Sup., 18 S.W.2d 16; State v. Ridge, Mo.App., 274 S.W. 496. The offense charged in the substitute information (a person not an apothecary or pharmacist unlawfully and feloniously selling 69.790 grams of marijuana for fifty dollars) was no different from that charged in the indictment, except as to the name of the person to whom the drug was allegedly sold. The difference in the stated names of the purchaser did not make it a different offense. This substitution effected no change either in the nature of the offense charged or in the punishment to be inflicted, upon conviction. The identity of the purchaser was not in dispute. Appellant made no claim that James Larson is a different person from James Snokhaus. There is nothing in this record to indicate that the intent in the original indictment was to refer to an entirely different person from him named in the substitute information, or that defendant was misled by the misnomer, or prejudiced by the change in the name. The mistake in the surname was cured by the statute of jeofails, § 545.290, V.A.M.S. Except for the name of the purchaser the proof would have been exactly the same under the indictment and under the substitute information. There is no question that the identity of the purchaser of the drug was known to defendant. Defendant testified that in his presence the prospective purchaser was referred to as “Jim”; that he introduced himself as “Jim,” and that defendant was never given Jim’s last name. Defendant, while a witness on the stand, referred to him as “Jim.” Defendant was not prejudiced by the misnomer in making his defense — it was not necessary for him to know the last name of the purchaser in order to identify this sale from other sales, for if he was telling the truth this was the only sale in which he ever participated. The defense was not rendered more difficult to sustain as a result of the substitution. Defendant was not thereby obliged to call other and different witnesses. See State v. Sturrs, Mo.Sup., 51 S.W.2d 45, upholding the amendment of an information charging first degree robbery of Lum Bong to charge that the victim was Sit Yen. The test of prejudice is whether a defense under the charge as originally made would be equally available after the amendment and whether defendant’s evidence would be equally applicable after as well as before the amendment. This case meets all the tests.

The second and third points are that the court erred in overruling defendant’s motion for acquittal and in giving the state’s main verdict-directing Instruction No. 2, for lack of substantial proof that defendant either acting individually or jointly with another consummated a sale of narcotics. Defendant contends that the state’s evidence showed that the federal agent arranged with Darlene Moore for the sale; that she alone procured the narcotics; that the federal agent handed the agreed sum of $40 directly to Darlene Moore; that the agent gave defendant $10 “for his trouble” but did not say the $10 was a part of the purchase price; that the exchange between buyer and seller was complete without any action on defendant’s part; that there was an absence of necessary proof of some exchange between the defendant and the buyer; that there was no evidence that defendant acted jointly with Darlene Moore in obtaining the narcotics, or that he shared the proceeds of the sale with her, or even that he knew her.

The state’s evidence, supplemented in some respects and corroborated in some of its essential details by the testimony of defendant himself, showed that when the federal agent approached defendant on the night of July 7 defendant told the agent that he was “temporarily out of marijuana” at the time, but could arrange for the agent to receive some; that he would contact “his man” Burl to obtain marijuana; that defendant and the agent drove to the community where defendant’s “man” lived; that in making this trip defendant “hoped” to find someone who could lead him to a supply of this narcotic; that defendant’s motive was to bring the agent into contact with a source of narcotics; that defendant talked to Burl and that Burl stated he could provide two cans of marijuana for $40; that after a further talk with Burl, following the making of a telephone call by Burl, defendant reported to the agent that he, the defendant, had “finally got the thing set up” for a transfer at a certain street corner in St. Louis; that a woman named Darlene would be there and provide the narcotic; that defendant and the agent went to the appointed place, met Darlene, who went with them to a tavern; that in return for the $40 he handed two cans of marijuana to defendant, who in turn handed the narcotics to the agent, who paid Darlene the $40 purchase price and paid defendant “the $10 [Snokhaus] offered [defendant] to find somebody that would sell it * * * to him.” This is ample evidence to sustain the submission of this case by Instruction No. 2, the form of which has not been challenged, on the theory that defendant aided, abetted, assisted and encouraged Darlene Moore, an unauthorized person, in the joint commission of the crime of unlawfully and feloniously selling narcotics. Defendant was clearly implicated as a principal on the theory of his joint action with Darlene Moore, both of them acting with a common intent in the commission of the crime. State v. Siekermann, Mo.Sup., 367 S.W.2d 643. It was not necessary to show that defendant performed each and every act connected with the sale. As the prime mover in the finding of the narcotics and the consummation of the sale defendant in law is as much a seller as the seller herself.

For error in the refusal to give the instruction on entrapment the judgment is reversed and the cause is remanded for a new trial.

COIL and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

      . Where an amendment effects a change of identity by specifying an entirely different person it is a material change and a fatal variance. State v. Fennewald, Mo.Sup., 339 S.W.2d 769, 774 [5].


source: Caselaw Access Project

author: BARRETT, Commissioner. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Paul Wayne WHISLER, Appellant.
    No. 50325.
    Supreme Court of Missouri, Division No. 2.
    Feb. 10, 1964.

      No attorney for appellant.
    Thomas F. Eagleton, Atty. Gen., Jeremiah D. Finnegan, Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

Paul Wayne Whisler has appealed from an order denying his motion to set aside a sentence and judgment. The court in which he was originally tried, after examination of the application and all relevant files in his original cases, denied the motion. He was permitted to prosecute this appeal as a poor person and a duly authenticated transcript of all the proceedings, signed by the trial judge, has been lodged in this court. His principal claim is that he was guilty of the misdemeanor offense of an attempt to escape from a county jail (V.A.M.S. § 557.410) rather than the felony offense of an actual escape (V.A. M.S. §§ 557.380, 557.390) and, since he has now served more than one year’s imprisonment in the penitentiary, should be discharged under a corrected sentence. Ex parte Bethurum, 66 Mo. 545; Ex parte Kenney, 105 Mo. 535, 16 S.W. 938; Annotation 76 A.L.R. 468. The insuperable difficulty with the appellant’s claim is that the transcript filed in his behalf reveals that the information charged that “ * * while said Defendant was in the said Phelps County jail, the said Defendant did break such prison and escape therefrom.” Furthermore, before accepting his plea of guilty the court said, “You are charged here with breaking County Jail.” Whisler answered, “Yes, sir.” The court then informed him, since he was twenty-two, that if he was convicted by a jury or entered a plea of guilty “ — you could go to the penitentiary. A. I know that. Q. You understand that? A. Yes, sir.” The consequence to the appellant is that in this court the certified transcript is conclusive. State v. Thompson, (Mo.) 324 S.W.2d 133, 136. And according to the transcript the appellant was sentenced to three years’ imprisonment for the crime of an escape under §§ 557.380, 557.390 and not for the misdemeanor offense of an attempt to escape from a county jail under § 557.410. Accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as' the. opinion of the court.

All of the Judges concur.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Lettie B. THARP, Appellant.
    No. 49681.
    Supreme Court of Missouri, Division No. 2.
    Oct. 14, 1963.
    Rehearing Denied Feb. 10, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, O. Hampton Stevens, Special Asst. Atty. Gen., Kansas City, for respondent.
    Roy Coyne, Joplin, for appellant.
    L. H. Wilbers, Jefferson City, for appellant on motion for rehearing.
   EAGER, Judge.

Defendant was charged by information under § 557.290 RSMo 1959, V.A.M.S., with conveying to the place of confinement of one Leonard Lee Crego, in Jasper County, tools useful in facilitating “his attempted escape.” There was in fact no attempted escape for the simple reason that the offending instruments, eight hacksaw blades, were found on Crego almost immediately. A jury found defendant guilty and imposed a term of two years’ confinement. Motion for new trial was overruled and this appeal followed.

Since the sufficiency of the evidence is questioned, we digest it in some detail. Actually, there is little controversy on the facts. Crego was in jail on a felony charge; defendant, a woman 23 years of age and living in Kansas City, had known him for a year or less, and had had “dates” with him. On April 9, 1962, Crego way. brought from the Jasper County jail at Carthage to the courthouse in Joplin for arraignment, arriving about 8:30 a. m.; he was placed in the holdover, a large cell adjoining the sheriff’s office. The door of that cell consisted of steel bars and also a mesh screen. Defendant had arrived at the sheriff’s office with her small son about 7:30 a. m. After Crego arrived she asked and was given permission to talk with him through the cell door and did so talk. The general purport of the evidence was that Crego did most of the talking and seemed to be angry, that there was some argument, and that he swore; also, that at one point the defendant was crying. After this conversation defendant went away, but she came back shortly and talked with Crego further at the same place. At approximately 9:00 o’clock Crego, and possibly other prisoners, were taken into the Division One courtroom for arraignment. He sat on the first row inside the railing and perhaps two or three feet to the left (west) of the gate leading inside the rail. Deputy Sheriff Webber sat next to the aisle on the first row outside the rail, almost behind Crego, and another deputy sat on the right of the gate, just inside the rail. Defendant, who had first been seated two or three rows back in the courtroom, came up and sat immediately behind Crego and to the left of Webber. She testified that Crego motioned or called for her to move up, and the court bailiff partially corroborated that fact. Defendant and Crego carried on some conversation in the courtroom. Defendant had a “purse” or “pocketbook,” obviously a woman’s handbag, which she placed on the seat just to her right. Crego reached back over the railing, took this handbag, placed it on the seat to his right, and opened it; he took out a brown paper sack and put it in his inside coat pocket; he also took out some pictures and looked at them. When he took the handbag, defendant made some remark to him about some pictures being in it. Both deputies saw him put the brown sack in his pocket, but did nothing at the time. There was no evidence that defendant handed the handbag to Crego or that she did anything more than place it on the bench; however, she made no protest and made no move to retain it. She testified that Crego took it as she was lifting her child up to the bench. The court officials were in their regular places and, as defendant’s counsel brought out, presumably could have seen these events had they been looking. The bailiff did see some of the events and so testified. When the proceedings were terminated, and as Crego left with the deputy or deputies, he handed the bag back to defendant. He had been searched before he was taken to the courtroom and some letters and pictures taken from him. When he was returned to “the lock-up” he was searched again and the sack with eight hacksaw blades was found and taken from him; a washcloth and the pictures were also found. It is not shown more specifically just where this search was made. After leaving the cell initially, Crego had been in the continuous view of one or more deputies.

A machinist of the O. & S. Supply Company in downtown Joplin identified the defendant as the woman who, accompanied by a little child, had bought eight hacksaw blades from him on the morning in question, taking them away in a brown paper sack. She had given a fictitious name and stated that the size of the blades made no difference.

The defendant testified in her own behalf. The substance of her testimony was: that on the morning in question Crego wanted her to get some hacksaw blades, argued with her, cursed and threatened her and became angry, and that she cried; that she was afraid of him when he was angry; that she did walk several blocks and bought the blades; that after she left the shop she decided that she would not give them to him; that she talked with him again through the door and told him she had the blades, but that she was not going to give them to him; that she refused to pass them to him through the door, which she said could have been done “one at a time”; that when she went into the courtroom she first sat about three rows back, but that Crego called to her to “sit up here”; that she laid her pocketbook on the bench; and that Crego reached back and picked it up, in plain sight of everyone around, with no' assistance from her; that she said to him, after he had opened it, that there were some pictures in it; that Crego was mad because he did not feel that she had tried sufficiently hard to get him out on bond, and thought she had another “boy friend”; that he also was angry because she had refused to give him the blades; that she had no idea that he would take them in the courtroom; that she made no protest, because, she says, she knew he would be searched.

The information charged that, while Cre-go was detained in the Jasper County jail on a felony charge, defendant did “unlawfully, feloniously, and wilfully convey and cause to be conveyed into said jail and place of confinement aforesaid, 8 steel hacksaw blades, being tools and instruments proper and useful to aid and facilitate Leonard Lee Crago in his attempted escape from said imprisonment by cutting and sawing the bars of a cell in which the said Leonard Lee Crego was confined, with the intent * * * to aid and facilitate” his escape from “said jail and place of confinement * *

Defendant’s complaints here, as we understand them, concern the supposed error in giving Instruction No. 3, and the sufficiency of the evidence under this particular information; perhaps these include also an objection to the information, but in any event we would consider that independently. We shall first consider the information. The statute in question, § 557.290, is quoted here for convenience: “Every person who shall convey into the penitentiary, or any jail or other place of imprisonment, any disguised instrument, arms or other thing proper or useful to aid any prisoner in his escape, with intent thereby to facilitate the escape of any prisoner lawfully committed to or detained in such penitentiary, jail or place of confinement, for any felony whatever, whether such escape be effected or attempted or not, shall, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding ten years.” The information obviously charges an offense within the meaning of the statute. It charged that defendant conveyed and caused to be conveyed into the “jail and place of confinement” eight steel hacksaw blades, instruments proper and useful to aid in Crego’s attempted escape, with the felonious intent to facilitate his escape. The information sufficiently follows the wording of the statute and it is not subject to objection.

The point made here that the evidence was insufficient seems to be based primarily on the contention that defendant conveyed the blades into the courtroom and not into the jail; also, that defendant did not actually intend to give the blades to Crego, did not do so, and could not properly be found guilty. The first of these points may be considered along with the objections to Instruction 3, for all are really part and parcel of the same contention.

Instruction 3, the State’s principal instruction, stated succinctly was: that if the jury found that defendant unlawfully conveyed or caused to be conveyed to Crego, while he was a prisoner in custody “and detained in the Jasper County Jail, or holdover cell, at Joplin, Missouri, upon a felony charge * * and conveyed or caused to be conveyed “into the Jasper County Jail, or holdover cell, at Joplin, Missouri, the same being a place of imprisonment, 8 steel hack saw blades, the same being tools and instruments proper and useful to aid Leonard Lee Crego in his attempted escape * * * with the intent * * * wilfully, feloniously * * * to aid and facilitate his escape” from said jail, then the jury might find defendant guilty. The substance of the point made here is that the instruction did not conform to the evidence in that defendant took the blades into the courtroom and not into the jail or hold-over cell; also, that the statute expressly requires that the offending instru-mentalities be conveyed into the “jail or other place of imprisonment.” The point was preserved in the motion for a new trial.

Defendant cites and relies upon the case of People v. Webb, 127 Mich. 29, 86 N.W. 406 (1901), where the defendant gave books to a lawyer who was representing two inmates of the jail, asking “how the boys were off for reading matter.” The lawyer took the books to the sheriff’s office which, together with the sheriff’s residence, was attached to the jail and constituted the entrance to the jail. There the sheriff found saws and files concealed in the covers of the books. Under a statute much like ours and upon an information which followed the statute generally, the court held that the conviction could not be sustained on that evidence, because the “jailer’s office was not a place of confinement for the prisoner.” The court there apparently felt that the defendant should have been convicted of an attempt to commit the statutory crime rather than of the crime itself. It should also be noted that the tools there never reached the prisoners at any location, and the case appears to be distinguishable.

The State cites the case of Compton v. People, 84 Colo. 106, 268 P. 577 (1928). There, while defendant was talking to a prisoner through the barred door of a jail, the jailer heard the rattle of paper, and apprehended defendant before he could pass in a wrapped package of saw blades. It was held that the evidence was sufficient to sustain a conviction under the statute which made it an offense to “aid or assist a prisoner * * * to make his or her escape from the jail, though no escape be actually made * * or to convey or deliver articles for escape to a prisoner. The court held that a “conveyance” was complete and the crime effected, even though there was no completed “delivery.” There were two dissenting judges. No other case is cited on this point pro or con, and we are not unduly impressed with either of these; nor do we find any Missouri cases on the question.

The real purpose and intent of our statute is to penalize efforts to aid a prisoner in an escape (whether accomplished or even attempted, or not), by conveying to him any instrumentalities useful to him in making an escape. It is true that the statute uses the words: “convey into the penitentiary, or any jail,” but these are immediately followed by the words, “or other place of imprisonment.” Here, Cre-go’s primary place of confinement seems to have been the jail in Carthage. He was brought to Joplin for arraignment and placed in a hold-over cell, the door of which was not only barred but covered with a wire mesh or screen. Defendant, after talking with him there, admittedly went out and purchased the blades, then returned and talked further; they discussed the fact that she had the blades. When he was taken to the courtroom by deputies, he was still in custody and he was still legally imprisoned. State v. Rudolph, 187 Mo. 67, 85 S.W. 584, 589. There can be no doubt of this. Two deputies sat within a few feet of him. In that particular situation he actually received the saw blades. The argument over whether the conveyance or delivery was accomplished in the jail or in the courtroom is more or less of a quibble. So far as we are concerned, the blades were conveyed to him in a “place of imprisonment,” within the very wording of the statute. The information charged that the blades were conveyed “into said jail and place of confinement aforesaid.” The wording of the instruction was somewhat more restrictive; it required a finding that defendant conveyed the saw blades to Crego while he was a prisoner “and committed and detained in the Jasper County Jail * * * and [did] convey [the blades] * * * into the Jasper County Jail, or holdover cell, * * * the same being a place of imprisonment * * Defendant did convey the blades to Crego, while he was a prisoner and detained in the jail. We hold further that she conveyed or caused them to be conveyed into the jail. Any other holding would be a perversion of the very purpose and object of the statute. The blades were in defendant’s possession at the very door of the cell; and wire mesh may have prevented Crego’s receiving them then, but in any event he soon got them. He ultimately conveyed them back to his cell or to the adjoining sheriff’s office. We do not approve such a narrow view of the phrase "into any jail,” as was adopted in the Webb case, at least as applied to the facts of our case. The giving of Instruction No. 3 did not constitute prejudicial error and, by the same token, the evidence was sufficient to sustain a conviction under the information.

The essential defense was that defendant had changed her mind right after buying the blades, that she never intended thereafter to give them to Crego, and that she had no idea that he would grab the bag right in the courtroom and take them. This, in essence, was a claim that she had abandoned the project, and we may assume that this was argued to the jury under Instruction No. 3 which required the finding of an intent to aid in an escape. Considerable of defendant’s argument here is devoted to the factual issue that she did not give the blades to Crego. The complete answer to that argument is that the jury found all such issues against the defendant, thus finding that she did intend for Crego to take the blades when she made them accessible to him, regardless of her protestations later.

Counsel says that the wording in the information referring to the facilitating of an attempted escape “by cutting and sawing the bars of a cell in which the said Leonard Lee Crego was confined,” is “confusing and misleading” and that there was no such evidence. A crime is completed under these circumstances “whether such escape he effected or attempted or not” (§ 557.290) ; the words complained of, looking to some possible future escape or attempt, may be regarded as surplusage. The material allegation was that the blades were “useful to aid and facilitate” an attempted escape. The point is without substance.

We have examined those parts of the record which we are required to review independently under Rule 28.02, V.A.M.R. Finding no reversible error, the judgment is affirmed.

All of the Judges concur.

      . To wliiclt revision all statutory citations will refer.


text:
    ST. LOUIS COUNTY LIBRARY DISTRICT, a Body Corporate, Respondent, v. James HOPKINS, Director of Revenue of St. Louis County, et al., Appellants, City of Kirkwood, a Municipal Corporation, et al., Intervenors-Appellants.
    No. 49918.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Feb. 10, 1964.

      James Butler, Clayton, for defendants-appellants.
    John R. Barsanti, Jr., Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for intervenors-defend-ants-appellants.
    Philip A. Maxeiner, Dominic Troiani, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for plaintiff-respondent.
   HOUSER, Commissioner.

When taxable property lying within the boundaries of a county library district is incorporated by annexation into the boundary limits of a municipality which has a tax supported free public library may the county library district continue to levy and collect taxes on such property? This question arises in an action for a declaratory judgment under Chapter 527, V.A.M.S., brought by St. Louis County Library District against the Director of Revenue and the Assessor of St. Louis County, the Board of Trustees of the Florissant Free Public Library and the owners of three parcels of taxable property lying within the boundaries of St. Louis County Library District and recently annexed by the City of Floris-sant. The City of Kirkwood and the board of trustees of its public library intervened. The petitioning county library district sought a judicial' declaration that it has the right to have its annual library tax levied upon the property lying within the area annexed by the City of Florissant. The trial court granted the relief prayed. The Florissant and Kirkwood library boards, the City of Kirkwood, and the property owners (acting as representatives of the whole class of property owners) have appealed.

Jurisdiction lies in this Court because the construction of the revenue laws of the state and the Constitution, Art. X, § 3; Art. I, §§ 2, 10, 26 and 28, Constitution of 1945; V.A.M.S.; and Amendment XIV, Constitution of the United States, is involved. Midwest Bible & Missionary Inst. v. Sestric, 364 Mo. 167, 260 S.W.2d 25.

The following is based upon an agreed statement of facts. St. Louis County Library District (hereinafter sometimes referred to as "District”) is a body corporate, a “comity library district” organized and established in 1946 under the provisions of Chapter 182, V.A.M.S. The geographical boundaries of District at the date of its establishment were identical with the boundaries of St. Louis County, including all unincorporated areas of the county and all municipal corporations therein except the territory of all cities and towns in the county with free public libraries maintained at least in part by taxation. The cities of Brentwood, Clayton, Ferguson, Florissant, Kirkwood, Maplewood, Richmond Heights, Rock Hill, University City, Webster Groves and Valley Park fall in the latter category and were not included in District.

At all times mentioned herein there were, and there presently are, duly authorized and lawful public library taxes for the respective benefit of District, Florissant and Kirkwood public libraries, which were and are to be levied on all taxable property subject to such taxes. At all times mentioned the lawful rate of taxation for each of these three entities has been duly certified to the director of revenue, the assessor, and their predecessors.

Before March 1, 1961 it was the duty of the county clerk and after that date the duty of the assessor, after due certification, to extend the legal rate of taxation for these three entities on the tax books of the county to all taxable property subject to such taxes.

The City of Florissant took steps to annex and in January, 1961 legally completed the annexation of certain unincorporated tracts of land in St. Louis County, including the lands of the property owners made parties defendant. Before January 24, 1961 District’s lawful rate of taxation was extended to these annexed tracts of land in the county tax books and District received taxes therefrom. After January 24, 1961 the county clerk no longer thus extended District’s lawful rate of taxation and District therefore no longer receives taxes from the property thus annexed. After January 24, 1961 the county clerk began extending Florissant Free Public Library’s lawful rate of taxation on the county tax books to the annexed property and since that time Florissant Free Public Library has been receiving taxes therefrom. Since March 1, 1961 the county assessor (rather than the county clerk) has had custody and control of the tax books and the duty of extending the lawful rate of taxation in the tax books to all property subject to taxation, and has continued to extend Florissant Free Public Library’s rate to the annexed area and has not extended District’s rate thereto, as a result of which District has not been receiving taxes from the property in the annexed area since March 1, 1961.

The same situation has developed as a result of the annexation by the City of Kirkwood of several adjacent areas of unincorporated lands lying within District.

Appellants’ first point is that the court erred in ruling that the tax rate for the benefit of District could be levied on property annexed by Florissant (a city maintaining a public, tax-supported library) because the governing statutes “provide for the establishment of city libraries as a function of municipalities, * * * [and] contemplate the servicing of all property within a city maintaining a public library by the municipal library and the assessment of all such property for city library purposes” ; that when the city annexes territory included in the tax base of the county library district the city public library, under the proper interpretation of Chapter 182, V.A.M.S., becomes entitled to the library tax revenue from that territory and library taxes for the benefit of the county library district may no longer be imposed upon the property located in the annexed territory,' that otherwise the annexed properties would be exposed to taxation for both a city and a county library, which would result in unfair and disproportionate taxation.

Appellants argue that the original public library statutes, Laws 1885, p. 193, § 1, provided only for city libraries; that from the original to the present statutes the language and phraseology establish public libraries as a function of the city ánd an agency of the city government to serve and be financially supported by all of the residents of each municipality maintaining a free public library; that later provision for county public libraries did not change this concept, but was intended to meet the needs only of persons not served by city libraries ; that the intention of the legislators was that residents of cities with public libraries be taxed for their city libraries, and residents of unincorporated areas or of cities not maintaining libraries be taxed for a county library, upon approval by the voters, but not to tax the same groups for both city and county library purposes. Appellants summarize certain sections of Chapter 182, V.A.M.S., and argue that their impact is that all property within a city maintaining a public library is to be taxed for municipal library purposes as and when such property becomes a part of the city, without distinction between property originally included within city boundaries and that brought in by subsequent annexation, and that property owners within a city are immune from assessment for county library purposes.

We find nothing in the annexation, taxation, or library statutes, or in the statutes relating to cities, towns and villages, to justify appellants’ construction, which attributes to cities a superior, exclusive and pre-emptive right to supply library services to and impose library taxes on territory appropriated out of a duly established county library district by the city’s unilateral act of annexation.

St. Louis County Library District is a body corporate, § 182.070, V.A.M.S., to which the General Assembly has granted the power to levy and collect a tax for a free county library, § 182.020, subd. 1, V.A.M.S. Likewise the City of Florissant has the authority to levy and collect a tax for the maintenance of a library. § 182.145, V.A.M.S. These two types of public corporations are of equal and coordinate power and responsibility in their respective separate jurisdictions. The taxing power of District is coextensive with the geographical boundaries of District, and that of the city is coextensive with the city limits. The geographical boundaries of the District, determined in 1946 at the time of its organization and establishment, § 182.010, V.A.M.S., include all of St. Louis County except the territory of the cities named in the third paragraph of this opinion. At all times since 1946 the territory annexed by the city has been part and parcel of, and embraced within, the boundaries of the District. The city limits, since the annexation, have been enlarged to include the territory annexed.

The taxing powers and the boundary limits of these two public corporations were fixed and established by general laws. These powers and limits can be changed only by a general law on the subject, or by following a statutory procedure prescribed by a general law. They were not changed by operation of law as a result of the extension of the city limits. The annexation resulted in overlapping jurisdiction over the same territory by two public corporations, but did not automatically cut down, reduce or effect any change in the taxing power or the boundary limits of the District. The powers of this public corporation in the field of taxation for library purposes continued unabated and in full force and effect after the annexation. The District’s taxing power would be affected only if there were a specific statute so providing, or general statutes from which such a result necessarily would be implied. There is no specific statute on the subject. No general statute or statutes expressly or by necessary implication direct that when a city annexes territory included in the boundary limits of a county library district the city pre-empts the territory for library purposes, or that taxes for the support of the county library district may no longer be imposed upon property in the annexed territory, or that the boundary limits of the district shall be diminished to correspond with the enlargement of the city limits. Provisions not found plainly written or necessarily implied from what is written “will not be imparted or interpolated therein in order that the existence of [a] right may be made to appear when otherwise, upon the face of [the statutes], it would not appear.” Allen v. St. Louis-San Francisco Ry. Co., 338 Mo. 395, 402, 90 S.W.2d 1050, 1053, cited with approval in State v. Allen, 344 Mo. 743, 128 S.W.2d 1040, 1043. In the absence of applicable legislation regulating this situation the county clerk and director of revenue were without any legal right or authority to refuse to extend the taxes for the county library district on property lying within the annexed area.

These conclusions find support in the adjudicated cases. Thus in State ex rel. Collins v. Rooney, 361 Mo. 389, 235 S.W.2d 260, it was held that the annexation by Kansas City of a part of an established levee district did not have the effect of cutting down or changing the boundaries, authority, rights and taxing powers of the levee district. And in School Dist. No. 7 v. School Dist. of St. Joseph, 184 Mo. 140, 82 S.W. 1082, this Court overruled the contention that the extension of the city limits of St. Joseph by operation of law extended its school district boundary lines so as to include a portion of an adjoining school district, pointing out that each school district is a body corporate, a separate legal entity created and governed by law, with its boundaries, privileges and liabilities measured by law and that “they can only be changed by the law of this state.” 82 S.W., l. c. 1086. In State ex rel. Lowe v. Henderson, 145 Mo. 329, 46 S.W. 1076, the City of Kansas City, which was organized into a single school district, extended its limits to embrace all of the territory of the City of Westport, which also was organized into a school district. This Court held that the extension of the limits of Kansas City over Westport did not, as a matter of law, extend the lines of the school district of Kansas City over West-port and annex the Westport district to the Kansas City district for school purposes, or extinguish the Westport School district; that cities and school districts are both “ ‘creatures of the statute, by which their corporate existence may be ended, or their rights and duties, together with the territorial extent of both, enlarged or restricted. In providing for the extension or contracting of city limits under the general law relating thereto, nothing whatever is said as to the school districts, or the effect of such extension or contraction in reference thereto. * * * In the absence of any statute expressly providing that the extension of the limits of a city has the effect to bring under the control of a school district then existing within a city the territory so attached, it cannot be so held. It cannot be said to be done by operation of law, when there is no such law.’ ” 46 S.W., l. c. 1079. In Inter-City Fire Protection Dist. v. Gambrell, 360 Mo. 924, 231 S.W.2d 193, the county court in extending the taxes for a fire district on the tax books refused to extend the taxes on property in the district which had been annexed to the City of Independence. The reason for the refusal was that the General Assembly had passed a law excluding such areas from the fire district. This Court found that the new law had not gone into effect at the time the county court refused! to extend the taxes and held that the county judges were “without any legal right or authority” to refuse to extend the taxes to include property in the fire district annexed to the city. In other words, until the statute became effective the annexation did not affect the fire district’s right to tax.

Where the General Assembly has intended to make provision for the result in cases of overlapping functions resulting from annexations it has done so. For instance, § 235.240, V.A.M.S., regulates the question of debts, liabilities and obligations and the title to property of an entire street light maintenance district annexed by a municipality. Section 247.160, V.A.M.S., makes provision for the continued operation or disposition of the mains and equipment of a public water supply district when all or a part of its territory is annexed by a municipality. Section 247.170, V.A.M.S., prescribes the procedure for detachment from the public water supply district of areas annexed, under certain conditions. Section 165.263, V.A.M.S., provides that extension of the limits of any city, town or village organized under the laws shall have -the effect to extend the limits of the town or city school district to the same extent. And see § 321.320, V.A.M.S., providing for the exclusion from certain fire protection districts of property in the district “included within a city having a population of forty thousand inhabitants or more, * * That the General Assembly has not seen fit to make provision for the instant situation is significant in determining the legislative intention.

The legislative history of Chapter 182, V.A.M.S., supports our conclusion. St. Louis County Library District was established twelve years before annexation proceedings were commenced by the City of Florissant. In 1946 there were in full force and effect two statutes which, if found applicable to annexed territories of cities and towns, may well have governed a situation of this kind. Section 14771, RSMo 1939, later renumbered 182.030, V. A.M.S., exempted all property in a city or town with an existing free tax-supported library from any tax for the support of the free county library in a county library district and prohibited voting in such city or town on the proposition of establishing a tax levy for establishing or maintaining a free county library. Section 14772, RSMo 1939, later renumbered 182.040, prescribed a procedure to enable the legislative body of a city or town to become a part of an existing free county library system. Paragraph (2) thereof prescribed a procedure by which the legislative body of a city or town which had become a part of an existing free county library system could cease to be a part of it, whereupon “the property situated in such city or town shall not thereafter be liable to taxes for free county library purposes.” Old sections 182.030 and 182.040, however, were repealed by Laws 1955, p. 547, 548, and in lieu thereof new sections numbered the same were enacted.

New § 182.030, in effect at the time of the annexation and still in effect, prescribes a procedure by which the voters in an existing municipal library district within a proposed or existing county library district may be included within the latter and may assume tax liability for the establishment and maintenance of the county library district. If the voters oppose the county library district “the existing municipal library district shall continue.” New § 182.-040 prescribes a procedure by which after a county library district is established any city, town or village excluded therefrom because of the maintenance of a tax-supported municipal library may become a part of the free county library district, “and thereafter the property within the municipal library district shall be liable for taxes levied for free county library purposes in lieu of the municipal library tax.”

New §§ 182.030 and 182.040 indicate a legislative intention to preserve the territorial integrity and encourage the growth and expansion of county library districts; to provide for the absorption by them of municipal library districts, and to extend the taxing powers and jurisdiction of county library districts at the expense of municipal library districts. Appellants’ position is not supported by a consideration of these new sections. Nor is appellants’ claim of immunity or exemption from taxation by the county library district advanced when we consider that the General Assembly repealed and did not re-enact the section exempting city and town property from any tax levy for the support of the free county library in the county library district. “Taxation is the rule. Exemption therefrom is the exception. Claims for exemption are not favored in the law.” Midwest Bible & Missionary Inst. v. Sestric, supra, 260 S.W.2d l. c. 30. No presumption is indulged in favor of claims •of exemption. State ex rel. Arenson v. City of Springfield, Mo.Sup., 332 S.W.2d 942, 948, and case cited, [4], The intent to tax and not to exempt is indicated where the General Assembly has abolished a pre-existing exemption.

Appellants’ second point is that the imposition of a tax for county library purposes on property annexed by a city maintaining a public, tax-supported library cannot be constitutionally upheld.

Appellants claim it violates Art. 10, § 11(a), Constitution of Missouri, which provides that “Taxes may be levied by counties and other political subdivisions on all property subject to their taxing power, * * ” for the suggested reason that the annexed property “is eliminated, for all purposes, from the coverage of the county library.” Our ruling on appellants’ first point disposes of this claim.

Appellants also assert that the continued levy of taxes on land after its annexation by a city maintaining a library does not conform to the requirements of Art. 10, § 3, Constitution of Missouri, which provides that “Taxes * * * shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. * * * ” The argument is that all lands within Florissant are a part of a single class, and that it is unreasonable to separate them, for library taxing purposes, on the basis of the time of their inclusion within the municipal boundaries; that such an arrangement constitutes an infringement of the rights of the owners of the annexed lands to equality under the law, citing Art. I, §§ 2, 10, 26 and 28, Constitution of Missouri, and the 14th amendment to the federal constitution.

We find no constitutional impediment. The two taxes in question are imposed by law by two separate taxing authorities, the city library and the county library district. The two taxes would be applied uniformly to the area within the respective districts, both of which include the annexed area. “The principle of uniformity is not violated by levying taxes by two overlapping taxing districts on the same property for similar purposes.” 1 Cooley, Taxation, Fourth Ed., § 324. The requirements of equality in taxation are met. The burden of the county library district tax falls equally and impartially upon all of the persons and property subject to it. 84 C.J.S. Taxation § 22, b., p. 77.

Appellants ably argue that there are undesirable consequences from the continuation of the tax levy for county library purposes. If statutory amendment is desirable in the field of overlapping taxing districts resulting from municipal annexations it is for the General Assembly, not the courts, to make the necessary alterations. State v. Allen, supra, 128 S.W.2d, l. c. 1046. “The argumentum ab iu-convenienti so well put by counsel * * has not convinced us that it is the prerogative of this court to supply what is clearly a casus omissus.” State ex rel. Lowe v. Henderson, supra, 46 S.W., l. c. 1078.

The judgment is affirmed.

COIL and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C, is adopted as the opinion of the court.

All of the Judges concur.


author: HOLMAN, Judge. EAGER, Chief Justice

text:
    Louie CHAILLAND, Respondent, v. M. F. A. MUTUAL INSURANCE COMPANY, Appellant.
    No. 49263.
    Supreme Court of Missouri, En Banc.
    Jan. 13, 1964.
    Rehearing Denied Feb. 10, 1964.

      Ford, Ford & Crow, James F. Ford, Wendell W. Crow, Kennett, for appellant.
    Dalton & Treasure, Kennett, for respondent.
   HOLMAN, Judge.

Louie Chailland was injured on May 13, 1959, when the horse he was riding was struck by the rear part of a tractor-trailer unit driven by Franklin E. Smiley. He obtained a judgment against Smiley for $15,-000 for his injuries and $500 for the death of his horse. Upon defendant’s appeal to this court that judgment was affirmed. Chailland v. Smiley, Mo.Sup., 363 S.W.2d 619. In this garnishment proceeding Chail-land sought to collect the aforementioned judgment from M. F. A. Mutual Insurance Company. Plaintiff’s theory is that defendant Smiley’s liability for payment of said judgment was covered by an oral contract of liability insurance with said insurance company. A trial before the court resulted in a judgment in favor of plaintiff in the sum of $15,500, together with interest in the amount of $1,295.01, and the court costs totaling $391.67. Garnishee, M. F. A. Mutual Insurance Company, has duly appealed. We have jurisdiction because of the amount in dispute.

The appeal was originally heard and an opinion adopted in Division Two but the case was thereafter transferred to Court en Banc. Additional briefs were filed and the cause was re-argued and resubmitted. Portions of the aforementioned opinion are here adopted without the use of quotation marks.

Plaintiff’s contentions here are that (1) he proved a valid oral contract to insure which was binding on M. F. A., and (2), in any event, the appellant is estopped to.deny that liability insurance was in effect concerning the occurrence in which he was injured, because, with full knowledge of the facts, it conducted the defense of the suit in question without procuring a reservation of rights or nonwaiver agreement from defendant. Since we have concluded that plaintiff’s first point is meritorious and is decisive of the appeal, we need not discuss or rule his second contention.

“In a case of this nature we review the record de novo and determine the credibility, weight and value to be accorded the testimony and other evidence, and arrive at our own conclusions based upon the entire record. In so doing we give due deference to the opportunity of the trial judge to see and hear the witnesses and to judge their credibility. Also, we should not set aside the judgment unless it is clearly erroneous. Civil Rule 73.01(d), V.A.M.R.” Smith v. Tracy, Mo.Sup., 372 S.W.2d 925. In that connection, we rule, as contended by appellant, that the burden is on plaintiff to prove the facts essential to the garnishee’s liability. Kelso v. Kelso, Mo.Sup., 306 S.W.2d 534, 71 A.L.R.2d 258.

Franklin E. Smiley is a resident of Leach-ville, Arkansas. He owns a tractor-trailer outfit and was “fixing to” haul gravel from Campbell, Missouri, to Blytheville Air Base in Arkansas. Before he could lawfully haul gravel between Campbell and Blythe-ville, it was necessary that he secure certain “permits” and that he carry liability insurance. Consequently, to effectuate these purposes, Smiley, on May 6, 1959, got in touch with Elmo Crum of Arbyrd, Missouri. Crum was an agent for the M. F. A. Mutual Insurance Company and Smiley had dealt with him at least once before. Specifically, Smiley said that he got in touch with Crum “to buy some insurance. * * * Well, it was insurance where I could have I.C.C. or ever what that is. Is it I.C.C. ? Q. A permit on your truck? A. Yeah, for a permit, twenty-five/one hundred ($25,-000 and $100,000), I believe that’s right.” He gave Crum a check for $50 and ‘‘he said that I was insured, and I had to have the insurance to get that I.C.C. permit, you see, and he called Little Rock and called Blytheville and St. Louis, two or three more places, and I also had to have that permit to haul gravel — . * * * Well, he just said he covered me with insurance and I was wanting a permit, mostly what he was doing was trying to find out how to go through to get it.”

On May 13 Smiley was involved in the accident with Chailland and again he called Crum, and Crum said, “Well, we’d better go see about it.” So Crum and Smiley went to the scene of the accident and interviewed two or three witnesses. As to the “permits,” Smiley said, “I got some stuff on it, but after that accident happened I just dropped it,” and he was not issued either an “I.C.C. permit” or a “P.S.C. permit.” The appellant did not receive an application for insurance from Smiley and did not issue a policy of liability insurance to him.

Mr. Smiley also testified that on the building in which Crum’s office was located there were “M.F.A. signs — signs that said M.F.A. Insurance”; that in addition to the $50 check he later paid Crum $20 which he thought was after the accident; that about three days after the collision Crum sent him the $70 he had paid and told him he had better get a lawyer; that he then employed Oscar Fendler and his associate, James W. Steinsiek of Blytheville, Arkansas, to represent him.

On May 16, 1959, Mr. Fendler wrote the home office of appellant in Columbia, Missouri, giving notice of the collision on May 13, 1959, and stating that because of the facts heretofore stated Mr. Smiley considered he had liability insurance with M.F.A. A cashier’s check for $70 was enclosed. On May 21, 1959, Will L. Nelson, an attorney in appellant’s home office, wrote Mr. Fen-dler advising that no policy had been applied for or issued to Mr. Smiley and that therefore the company would not take any action in connection with any claims that might arise out of the accident. Included in that letter was the following: “On Mr. Smiley’s first visit to Mr. Crum’s office, Mr. Smiley was told that the premium on a policy containing the limits which would be required would be $190.00. On May 6, 1959, Mr. Smiley did pay $50.00 by check, to Mr. Crum. * * * Our agents are authorized to execute a written binder on insurance in certain instances, but in this case no such binder was executed. * * * We are returning the above cashier’s check which you have tendered in your letter of May 16, 1959.”

On May 25, 1959, the summons in plaintiff’s suit against Smiley (in which he sought to recover $51,500) was served on the Secretary of State and forwarded by him to Mr. Smiley. On May 28, Mr. Fen-dler mailed the petition and summons to appellant and these papers were returned to him by Mr. Nelson on June 3. Thereafter, on June 10, 16, and 23, Mr. Fendler wrote additional letters to Mr. Nelson demanding that appellant defend the suit and assume liability under the alleged oral insurance agreement. Finally, on June 22, Mr. Nelson wrote plaintiff and Mr. Fendler advising that, “[wjith the understanding that we are reserving all of our rights under the policy, as above stated, and are not waiving our position or any of our rights by hiring defense counsel, investigating the accident, or negotiating toward a settlement, we are employing the law firm of Ford and Ford, Kennett, Missouri, to defend the suit.” On June 26, Mr. Fendler replied that Mr. Smiley would “cooperate to the fullest with Ford and Ford, Kennett, Missouri, as his attorneys, without agreeing to any restrictions or reservations contained in your letters. Both J. W. Steinsiek of Blytheville and I shall cooperate with Ford and Ford, as attorneys for Smiley’s coverage, and with your company in preparation of this case for trial and in the trial whenever you or Ford and Ford request our advice and assistance. We agree to no waivers or reservations by Mr. Smiley.”

When the aforementioned suit was tried Mr. Steinsiek assisted the attorneys employed by appellant. In that connection it should be noted that the amount plaintiff sought to recover ($51,500) was much more than the amount of coverage ($25,000) Smiley claimed he had with appellant.

The only witness offered by appellant was Mr. Nelson. In addition to identifying the letters heretofore mentioned he testified that Mr. Crum was an independent agent for solicitation of insurance for M.F.A. Mutual and Countryside Casualty Company (another M.F.A. company); that on January 27, 1960, appellant and Countryside each terminated Mr. Crum’s agency contract. He also stated that in 1959 commercial tractor and trailer units were insured under separate policies and that liability coverage on the tractor would not apply to the trailer.

As indicated, garnishee did not offer the testimony of agent Crum and therefore the testimony of Mr. Smiley as to the occurrences and conversations between them is uncontradicted. We have reviewed Mr. Smiley’s testimony and find it to be true and therefore adopt said testimony and all reasonable inferences to be drawn therefrom as a part of the facts in this case.

Appellant has briefed the contention that plaintiff is not entitled to recover because he failed to prove a valid oral contract of insurance, and even if a contract had been proved it would not be enforceable because Crum had no authority to bind it by such an oral contract.

“In the absence of a statute or other positive regulation to the contrary, a contract of insurance may be made by parole. The fact that contracts of insurance are not usually made in this way is not evidence that they cannot be so made. There is nothing in the nature of insurance which requires written evidence of the contract. The contract may be verbal or in writing, or partly in writing and partly verbal. It is. of course, essential to the existence of an oral, as well as a written, contract of insurance that the minds of the parties shall have met on all the essential terms of the contract, as discussed supra § 227; but, where the minds of the parties for a valuable consideration have met on all the terms of the contract, it is complete and enforceable, although it was intended by the parties to be evidenced by a policy which, because of some fortuity, was not delivered before the happening of the event insured against.” 44 C.J.S. Insurance § 250, pp. 1019, 1020.

The five elements necessary for an oral contract of insurance are: “First, the subject-matter; second, the risk insured against; third, the amount; fourth, the duration of the risk; and fifth, the premium. It is not essential that all of these elements of the contract be expressly agreed upon if the intention of the parties to the contract in these particulars can be gathered from the circumstances of the case. An oral contract of insurance is binding, although the premium is not to be paid at the time of its consummation if credit is given.” Murphy v. Great American Ins. Co., 221 Mo.App. 727, 285 S.W. 772, 773.

We are convinced from the evidence that Smiley and Crum agreed, on or about May 6, 1959, that appellant was to be bound, from that date, to insure Smiley’s liability (limit $25,000/$100,000) in the operation of his tractor-trailer unit pending the issuance of the regular insurance policy. The subject matter was, of course, the tractor-trailer unit which Smiley planned to use in hauling gravel. The risk was shown to be personal liability within the limits of $25,000 for injuries to one person and $100,000 for one accident. The premium was definitely shown to be $190.00 and it may reasonably be inferred that such was for the period of one year. Mr. Smiley paid $50 on the premium and it is obvious that Mr. Crum extended credit for the balance since he told Smiley that he “was insured.” Two acts on the part of Crum unquestionably indicate that he considered that the insurance was in force. One was the fact that he accepted a twenty-dollar payment on the premium after he knew of plaintiff’s injuries, and the other was his conduct in making an investigation of the accident immediately after he learned of it.

Mr. Nelson testified that separate policies are issued for commercial tractors and trailers. Appellant says that Smiley testified that he wanted insurance on his “truck” and therefore there was no agreement to insure his trailer, which was the vehicle that struck plaintiff’s horse. We think that contention is without merit. Both Smiley and Crum understood that Smiley wanted insurance so that he could haul gravel. He could not haul gravel without using both his tractor and trailer. It was obvipusly the understanding that the entire unit was being insured.

Appellant also suggests that Crum was agent for Countryside Casualty as well as M.F.A. Mutual and that there is nothing to indicate which of the companies was to carry the insurance. It is very clear from his testimony that Smiley considered that he was obtaining insurance with M.F.A., and we have concluded from all the evidence that such was the agreement between him and Mr. Crum. Moreover, Mr. Nelson’s letters are sufficient to indicate a tacit admission that the conversations related to M.F.A. Furthermore, since M.F.A., rather than Countryside, undertook the defense of plaintiff’s suit, it is hardly in a position to now contend that the conversations may have related to Countryside. We rule this contention against appellant.

The principal question remaining for our decision is whether Crum had the actual or apparent authority to bind appellant by the foregoing oral contract of insurance. Upon this general subject see Voss v. American Mutual Liability Ins. Co., Mo.App., 341 S.W.2d 270. There is evidence to the effect that Crum was only authorized to solicit applications, collect premiums, and deliver policies. And it is true, as contended by appellant, that an agent with,such limited authority is ordinarily without power to make oral contracts of insurance. Hawes v. American Central Ins. Co., 222 Mo.App. 1057, 7 S.W.2d 479. However, there was also unquestioned evidence (perhaps it should be called an admission) that Mr. Crum had additional powers. We refer to the following excerpt from Mr. Nelson’s letter of May 21, 1959: “Our agents are authorized to execute a written binder on insurance in certain instances, but in this case no such binder was executed.” The letter did not state that Crum did not have such authority in this instance but disposed of the issue by simply stating that no such binder was.executed in this case.

We have concluded that an agent authorized to execute a written binder of insurance must be held to have the apparent authority to make an oral contract of binder unless, of course, notice of any restriction against such power is brought home to a person dealing with such agent. It is a well-settled general rule that an agent who is authorized to issue or execute policies has the authority (at least apparent) to bind his company by an oral contract of insurance. Massachusetts Bonding & Ins. Co. v. R. E. Parsons Elec. Co., 8th Cir., 61 F.2d 264, 92 A.L.R. 218. “An insurance company is bound by a parol contract of insurance entered into by an agent authorized to make contracts of insurance, such as an agent authorized to issue policies * * 44 C.J.S. Insurance § 250c, p. 1023., The rule is established in this state that a resident agent of a foreign insurance company may bind his principal upon an oral contract of insurance. This rule is held to apply, regardless of his actual authority, because of a statute which requires that the agent countersign all policies issued. See Murphy v. Great American Ins. Co., supra, Corrigan v. National Motor Underwriters, 222 Mo.App. 113, 1 S.W.2d 845, and McNabb v. Niagara Fire Ins. Co., 224 Mo.App. 396, 22 S.W.2d 364. And the following cases indicate that the agent of a domestic company may so bind his company by an oral contract: Shepard v. Boone County Home Mut. Fire Ins. Co., 138 Mo.App. 20, 119 S.W. 984, and Baile v. St. Joseph Fire and Marine Ins. Co., 73 Mo. 371.

If, as we have said, an agent having authority to issue or sign a policy has the authority to bind his company by an oral contract of insurance, we think it reasonably and logically follows that an agent having authority to sign a written binder of insurance (as did Crum) also has the apparent authority to obligate his company by an oral binder. We accordingly rule, as heretofore indicated, that appellant was bound by the oral contract of insurance heretofore detailed.

Two other points briefed by appellant should be determined. Appellant contends that there is no evidence that the oral contract included coverage for liability relating to property damage. With that we agree. It follows that plaintiff is not entitled to recover from appellant the $500 included in the original judgment for the loss of his horse.

As to the remaining point, both parties agree that the trial court erred in entering a judgment against garnishee without first entering an order directing the garnishee to pay to the sheriff or into court the amount found due, all as provided by Civil Rules 90.06, 90.07, and 90.19, V.A.M.R. However, the error in entering judgment prematurely will not require a retrial of any issue but may be corrected by a remand with appropriate directions. Gilbert v. Malan, 231 Mo.App. 469, 100 S.W.2d 606.

The judgment is reversed and cause remanded with directions to the trial court to enter an interlocutory order directing the garnishee to pay to the sheriff or into court the sum of $15,000 with interest thereon from June 15, 1960, together with court costs in the sum of $391.67, and to enter such further orders and judgments as may appear appropriate in accordance with the views herein expressed.

STORCKMAN and HOLLINGS-WORTH, JJ., concur.

HUNTER, Special Judge, concurs.

EAGER, C. J., dissents in separate dissenting opinion filed.

LEEDY and HYDE, JJ., dissent and concur in dissenting opinion of EAGER, C. J.,

DALTON, J., not sitting.

EAGER, Chief Justice

(dissenting).

I do not believe that authority was shown on the part of Mr. Crum to make the asserted oral contract of insurance. I further dissent from the statement to the effect that an agent with authority to execute a written binder necessarily has authority to make an oral contract of insurance unless notice of restriction is given. The opinion and that statement misconceive the whole theory and meaning of an insurance binder which, simply stated, ordinarily means that by the terms of a written binding receipt the insurance dates from a certain time if and when a written application is subsequently accepted by the insurer. Brancato v. National Reserve Life Insurance Co., C.A. 8, 35 F.2d 612; State ex rel. Equitable Life Assurance Society of United States v. Robertson, Mo., 191 S.W. 989; Patterson v. Prudential Insurance Co. of America, Mo.App., 23 S.W.2d 198. That question is wholly different from one involving the authority of a general agent or an issuing agent to make an oral contract, as in Massachusetts Bonding & Insurance Co. v. R. E. Parsons Electric Co., C.A. 8, 61 F.2d 264, 92 A.L.R. 218 (cited in the opinion), where the agent was authorized to “issue” policies. And see also, Corder v. Morgan Roofing Co., 355 Mo. 127, 195 S.W.2d 441, for a specific definition. In my view, there was not in the present case any legitimate showing of Crum’s authority even to countersign policies, much less to “issue” policies, as is inferred in the foregoing opinion.

This opinion improperly shifts to the defendant the burden which should legitimately rest upon the plaintiff (Dickinson v. Bankers Life & Casualty Co., Mo.App., 283 S.W.2d 658, and cases there cited) and it misconceives the basic theories involved.