In re Mutchler
55 Kan. 164
Kan.
1895
Check Treatment

The opinion of the court was delivered by

Hoeton, C. J. :

The petitioner alleges that he should be discharged from imprisonment because the evidence fails to show the commission of any offense on his part. (In re Eberle, 44 Kas. 472.). It appears that on Tues-dajl, the 5th of January, 1895, at Spring Hill, in Johnson county, M. S. Johns' obtained of S. B. Swarts, a liveryman, a team of horses, with harness, buggy and robe, saying he wanted the team to go to the Hutchinson schoolhouse. This place was a half a mile north and four miles east of Spring Hill.. Soon afterward F. H. Mutchler came to the barn and asked how much the team would cost if they were back at 1 o’clock on that day. Swarts answered $1.50. Mutchler made arrangements for the payment of that amount. Doctor Stevens, of Spring Hill, was present at the conversation. Thereupon the team was furnished, and Mutchler and Johns got into the buggy and drove away. Instead of going to the Hutchinson schoolhouse, the team was driven to Martin City, in Missouri, about 15 miles from Spring Hill. They reached there about noon of the day they left Spring Hill. Johns put the team in the stable, ordered the horses *166rubbed down and fed. He then wrote a letter to Doctor Stevens at Spring Hill, requesting him to inform Swarts his team was at Martin City. This letter was placed in an envelope addressed to Doctor Stevens at Spring Hill. It was properly stamped and mailed at the post-office at Martin City, Mo., about 1 o’clock of January 5. It was received at Spring Hill the same day. It was delivered to Mrs. Stevens on Monday evening, January 7. She turned it over to Swarts the same evening. The team was found at Martin City on Tuesday morning, the 7th of January, by William Mullinson, the son-in-law of Swarts, who brought them back 'to Spring Hill on the same day. While neither Johns nor the petitioner intended to go to the Hutchinson schoolhouse when they obtained the team, they had no purpose at that or any other time to steal the property, or to deprive the owner entirely of the same. They merely intended to take the team for a ride, and then leave the property for the owner to get again. They only had possession a few hours. When they had driven to Martin City, Johns put the team in the stable for the owner and notified Doctor Stevens at Spring Hill where the team was, and requested him to inform Swarts what they had done.

If the property had not been left at Martin City for the owner, and if no notice had been sent to him thereof, the making a different use of the property from that contemplated by the hiring.would furnish some evidence that the original intention was felonious and that the hiring was a mere device to obtain the possession from the owner and an opportunity to steal the property. (The State v. Woodruff, 47 Kas. 151.) The conduct of the parties at Martin City rebuts the presumption that Mutchler -meant to deprive *167Swarts of the property. “A felonious intent means to deprive tlie owner, not temporarily, but permanently, of his own property without color of right or excuse for the act, and to convert it to the taker’s use without the consent of the owner.” Upon the facts there was no felonious intent existing in the mind of Mutchler at the time of the original taking, nor was there any subsequently superadded felonious intent on his part.

The petitioner will be discharged.

All the Justices concurring.