
    The State of Kansas v. Frank J. Rider.
    Stolen Goods, Receiving — Erroneous Conviction. In a criminal prosecution for buying and receiving stolen property, under §92 of the crimes act, where the evidence showed that the property was situated in one county and the defendant was tried in another; and the only evidence connecting the defendant with the property alleged to have been stolen, was the fact that he went from the county, where he was tried to the county where the property was found, held, that there was no completed offense committed in the county in which the defendant was tried and convicted, and that such conviction was erroneous.
    
      Appeal from Grant District Court.
    
    The opinion states the case.
    
      S. N. Wood, and A. M. Mackey, for appellant.
    
      B. B. Kellogg, attorney general, and Win. Easton Hutchison, county attorney, for The State.
   Opinion by

Green, C.:

The information in this case charged the defendant with feloniously buying and receiving one mare, of the value of $100, the property of Carl Gall, jr., “then lately before feloniously stolen, taken and carried away,” knowing the same to have been so stolen. The part of § 92 of the crimes act which is applicable to this case is as follows:

“Every person who shall buy or in any way receive any goods, money, i ights in action, personal property, or any valuable security or effects whatsoever, . . . that shall have been stolen from another, knowing the same to have been so stolen, shall upon conviction be punished in the same manner and to the same extent as for stealing the money, property or other thing so bought or received.”

The defendant was tried and convicted in the district court of Grant county, on the 21st day of July, 1890, and sentenced to imprisonment in the penitentiary for two years. He appeals to this court.

The evidence in this case shows that the mare alleged to have been stolen, was taken by John Stoffel from the place of Carl Gall, in Grant county, about 3 o’clock in the afternoon, on Wednesday, March 5,1890, and led to his place in Kearny county. The claim was made by Stoffel that the animal had been given to him for one of bis, which Gall had been charged with shooting. There is no evidence to indicate that the defendant ever received or purchased the mare in Grant county. If he ever received the mare at all, it was in Kearny county. There is no evidence to connect the defendant with the reception or possession of the mare in Grant county, and the only theory upon which the conviction can be upheld is, that the offense charged to have been committed was begun in Grant county and completed in Kearny. In accordance with this theory, the court instructed the jury that if there were any overt acts committed in Grant county, and if there were a series of such overt acts continuing into Kearny county, up to the time of receiving the mare, then such reception would be in Grant county. The overt acts in Grant county, if any, consisted in the defendant being present at Hornaday’s printing office, in Ulysses, in Grant county, on the 14th day of March, 1890, where a consultation was had between Stoffel and his attorney in regard to his retaining possession of the mare, and the giving of a redelivery bond, in ease the animal should be replevied from him; that the attorney for Stoffel wrote something on a piece of paper which he gave to the defendant, and told him to “get that or that mare;” that in pursuance with the advice, the defendant left town and went to Surprise, in Grant county, and from there to Stoffel’s place, in Kearny county. We do not think the evidence warranted a conviction in Grant county. There was no evidence that the defendant commenced the commission of the offense charged against him in the county in which he was tried. The language of § 23 of the criminal code is:

“ When a public offense has been committed, partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offense occur in one or more counties, the jurisdiction is in either county.”

Now, can it be said that the act of the defendant in going from one county to another, under the advice of counsel, to aid a person' in maintaining what he regarded as his legal rights, constituted any element of the crime alleged? The defendant was charged with buying and receiving stolen property in Grant county. It is conceded that he did not buy or receive the mare in Grant county, but it is insisted that the overt act which led to the commission of the offense had its inception in this county. Can this be true? The elementary principle is so firmly established, that there must be some act coupled with an evil intent to constitute, in law, a crime, that it is but necessary to state it. Suppose it should appear that the defendant started from Ulysses for the purpose of obtaining the mare in Kearny county: it might be said that the evil intent existed in his mind, but unless that evil intent was combined with some act in Grant county, the offense would not be complete. We do not think the fact that the defendant traveled from one county to another was such an overt act as would constitute an offense. The evil intent might have existed in the mind of the defendant while in Grant county, yet if no act was committed there, one necessary element of the crime would be lacking. There must be a concurrence, in point of time, of the act and intent, to constitute an offense. If the evil intent existed in the defendant’s mind in Grant county, to receive the animal charged to have been stolen, there was no act coupled with such intent, and hence there was no completed crime committed in Grant county by the defendant.

It is recommended that the judgment of the district court be reversed.

By the Court: It is so ordered.

All the Justices concurring.  