the larceny at a meeting to be held between them at another place as soon as convenient. Having given to their conspiracy that extent, neither of them, when indicted, has the right to call upon the court to diminish its extent for the purpose of relieving him from any of its consequences." See, also, State v. Grant, 76 Mo. 245; Miller v. Dayton, 57 Iowa, 429; S. C. 10 N. W. Rep. 814; State v. Brown, 7 Or. 207.

The court did not err in admitting Hennessy's declaration.

5. After appellant had testified that he and Hennessy took the property merely for the purpose of riding it three or four days to enable him to leave the state, but that they did not intend to steal; that they expected Thomas would come and return the property to Gibbs; that he told Brown they were getting away from trouble at Wells, etc., he was asked by his attorney "why it was he did not leave Wells on the train." The state objected to the question, and appellant's attorney stated that—

"In connection with said question he proposed to prove that defendant had contracted a number of debts, aggregating a large sum of money; that he had paid out all the money he had, and had nothing wherewith to pay the debts; that he had been told and believed his creditors at Wells intended to attach and take away from him every cent he could make; that he intended to go out of the state, and secure employment, and thereby make sufficient money to pay the just claims against him; that he did not believe he could ever pay his creditors if continually sued and harassed by them; that he intended to leave on the east-bound train, but when the train arrived at Wells he saw the constable and justice watching the train, and thought he would be arrested, and brought back as an absconding debtor, if he boarded the train; that he knew of several instances where parties owing money had attempted to leave the state, and had been arrested and brought back; that he concluded he could not safely leave Wells on the train, and he and Hennessy agreed to get horses, and ride them to some point near the eastern border of the state, where they could safely take the train and depart."

It is admitted that the reasons offered were no excuse for taking the property, but it is said that since his defense was that he took it, not intending to steal it, but only to use it in getting out of the state, he had the right to explain why he did not go away in the usual manner, on the cars. A man may be guilty of larceny without intending to appropriate the property permanently to his own use. Appellant was guilty if he intended, at the time of the taking, to deprive the owner of it permanently. If the jury had believed that he was afraid of being arrested and brought back, although from the proposed showing his fear was groundless, his testimony would have shown why he went over the country on horseback instead of traveling by rail; just as it would if he had said he did not go on the cars because he had no money to buy a ticket, or because car-riding made him sick, or because he was afraid the cars would run off the track; but whether in taking the horses, no matter why, he was guilty of larceny, would still have depended upon whether he intended to deprive the owner of them permanently, although he would not have taken them at all if he had not feared arrest; and in deciding upon his intent the jury would have been obliged to judge from facts and cir

cumstances outside of the reason why he did not go by rail. A belief by the jury that he would have gone away on the cars, and would not have taken the horses, if he had not feared arrest, would not have tended to show that, since he could not go by rail, he did not intend to deprive the owner permanently of his property and also to depart from the state.

The record discloses no reversible error, and the order and judgment appealed from are affirmed.

NOTE.

Every person is presumed to have intended that which his acts indicate his intention to have been. People v. Langton, (Cal.) 7 Pac. Rep. 843.

When the intent is the gist of the crime, the presumption that every sane man contemplates and intends the necessary, natural, and probable consequences of his own acts, though a very important circumstance in making the proof necessary upon this point, is not conclusive, nor alone sufficient to convict, and should be supplemented by other testimony to avoid a reasonable doubt. People v. Sweeney, (Mich.) 22 N. W. Rep. 50.

No man is to be punished as a criminal unless his intent is wrong, and such wrong intent must be followed by a wicked act to give it force and effect. If one intends to do what he is conscious the law forbids no other evil intent need be shown. In such case the law infers the intent to defraud from the act. U. S. v. Houghton, 14 Fed. Rep. 544. When the proof shows that an unlawful act was done, the law presumes the intent, and proof of the act being a violation of law is proof of the intent. U. S. v. Baldridge, 11 Fed. Rep. 552.

The intent with which a criminal act is committed need not be shown by direct proof, but it may be inferred from what the party does, and also from all the facts and circumstances under which the act complained of was committed, as disclosed by the evidence. State v. Williams, (Iowa.) 24 N. W. Rep. 52.

Evidence of the acts and doings of the person accused, of a kindred character to those charged, are admissible to show intent. U. S. v. Snyder, 14 Fed. Rep. 554.

On an indictment for the larceny of lost goods, evidence may be admitted to show what the defendant said and did about the property and his possession of it, subsequently to the original finding and taking, for the purpose of proving the intent with which the accused originally took the property into his possession at the time of finding it. Com. v. Titus, 116 Mass. 42.

It was held in Dunaway v. People, 110 Ill. 333, that where one person shoots at another, and kills a third, that he may be convicted of an assault with intent to kill such third person. The court cite, as to the same effect, Walker v. State, 8 Ind. 290; Callahan v. State, 21 Ohio St. 306; Perry v. People, 14 Iil. 496; and Vandermark v. People, 47 Ill. 122.

(35 Kan. 15)

SUPREME COURT OF KANSAS.

NOBLE V. BOWMAN and others.

Filed March 5, 1886.

GARNISHMENT-SURETIES-LIABILITY OF GARNISHEE.

M. owed $165 either to A. or to N.; and O., in an action against A., claiming that the debt was due to A., garnished M., and the court ordered M. to pay the money into court. N., however, claimed the money as the creditor of M., and M., not knowing to whom he was liable, and wishing to leave the state, entered into an agreement with A. and N. and B. and others that he should pay the money to B., and that B. should retain the same until the question should be finally decided by a judicial determination whether the money belonged to N. or to A. or to O., and that after such determination B. should pay the money to whom it belonged, and the money was in fact paid to B., and he, as principal, and others, as sureties, executed to M. and A. and N. an obligation to secure the faithful fulfillment of the agreement; and nothing has transpired since to render B. and his sureties liable to an action on the obligation. Held, in an action by N. against the obligors on their obligation, that they are not liable; or, in other words, that the obligors are not liable to N. until it is at least settled that the garnishee is not liable in the garnishment proceedings.

Error from Harvey county.

This was an action brought in the district court of Harvey county, Kansas, on August 26, 1881, by Sarah A. Noble against C. S. Bowman, James H. Anderson, William H. Bean, and B. C. Arnold, upon the following instrument in writing, to-wit:

"State of Kansas, Harvey County-ss.: Know all men by these presents that we, the undersigned, are held and firmly bound unto A. B. Noble, Sarah A. Noble, and M. A. Myers in the sum of two hundred dollars. The condition of this obligation is that whereas, in the case of O. J. M. Borden v. A. B. Noble, on the docket now in the possession of T. C. CUTLER, J. P., of Newton township, in said county and state, the said M. A. Myers was garnished, and ordered by said justice's court to pay into said court, on or before September 15, 1879, the sum of one hundred and sixty-five dollars, ($165;) and whereas, the said Sarah A. Noble claims to be the owner of said money, and intends to institute proceedings for a final judicial determination of her claim; and whereas, the said M. A. Myers has delivered to C. S. Bowman said sum of $165, to be by him held until such final adjudication is had, and until September 15, 1879, and then pay the same over to the person or authority adjudged to be entitled thereto; and whereas, the said C. S. Bowman agrees to pay to Sarah A. Noble annually 12 per cent. interest thereon: Now, therefore, if all these things herein required of the said C. S. Bowman are fully done and performed, then the above obligation to be void; otherwise it shall remain in full force and effect.

"Executed in duplicate this twenty-seventh day of October, 1877.

"C. S. BowMAN.
"JAS. H. ANDERSON.
"WM. H. BEAN.

"B. C. ARNOLD."

The plaintiff, after giving a copy of the foregoing instrument in writing in her petition, alleged, among other things, that she had instituted legal proceedings in the district court of Harvey county for

the purpose of having the question of the ownership of the aforesaid money determined as between herself and the said O. J. M. Borden, and that in such proceedings it had finally been determined that the money belonged to her, and that she was entitled to the same; and that afterwards she demanded the same of the defendants, but that they refused to pay it to her, or any part thereof. The defendants answered, admitting the execution of the foregoing instrument, and the prosecution of the aforesaid legal proceedings between the plaintiff and Borden; but setting up, in substance, that while the question of the ownership of said money had, in said legal proceedings and in the district court, been determined in favor of the plaintiff, yet that the judgment and decision of the district court had been reversed in the supreme court, and that it was held and decided by the supreme court that the question whether the plaintiff was entitled to said money or not could not be determined in that action, and that since the decision of the supreme court the defendants had paid over the money in controversy to Borden. Before the trial of the present action, the subject-matter of the controversy was assigned by Sarah A. Noble to Louis Noble, and he became the plaintiff in the action. Afterwards the case was tried by the court without a jury, and the court made a general finding in favor of the defendants and against the plaintiff, and rendered judgment accordingly, and to reverse this judgment the plaintiff, as plaintiff in error, now brings the case to this

court.

Green & Shaver, for plaintiff in error.

Bowman & Bucher, for defendants in error.

VALENTINE, J. The motion of the defendants in error to dismiss this petition in error must be overruled, and the judgment of the court below must be affirmed. We shall not discuss the motion, however, but will pass at once to the merits of the case. It appears that M. A. Myers owed $165, either to A. B. Noble or to Sarah A. Noble, and to which he owed this sum is the main question involved in this case. The question arises as follows: O. J. M. Borden commenced an action against A. B. Noble before a justice of the peace. of Harvey county, and garnished Myers as the debtor of A. B. Noble, and Myers answered, and was ordered by the justice of the peace to pay the aforesaid $165 into the justice's court as a debt due from Myers to A. B. Noble. Mrs. Noble, however, claims this money; and Myers, not knowing to whom it belonged, or to whom he should pay it, or to whom he was bound, and wishing to leave the state, entered into an agreement with the Nobles and the defendants in this action. that he should pay it to C. S. Bowman, and that Bowman should retain it until the question should be finally decided by a judicial determination whether the money belonged to Mrs. Noble or to A. B. Noble or to O. J. M. Borden, the plaintiff in the garnishment proceedings. The money was in fact paid to Bowman, and he, as prin

cipal, and James H. Anderson, William H. Bean, and B. C. Arnold, as sureties, executed to Myers and the Nobles the obligation sued on in this action, to insure the faithful fulfillment of the foregoing agreement. Borden was not a party to this agreement or to the obligation aforesaid, nor did be agree to release Myers as garnishee, or to look to the fund in Bowman's hands as security for his claim against A. B. Noble; and, of course, unless Borden's claim against A. B. Noble has been satisfied, or Myers in some way released by Borden, Myers is still liable to Borden as garnishee, if he ever was so liable, and nothing has been shown in this case that would in any manner have the slightest tendency to release Myers. It is true, the defendants offered to prove that Bowman paid the money into the justice's court for Borden, but the plaintiff objected, and the evidence was excluded by the court. It is also true that the plaintiff commenced an action in the district court of Harvey county against Borden and others, to have the question determined as to whom the fund in Bowman's hands belonged or should be paid, and the district court decided that it belonged to Mrs. Noble; but it is also admitted that that case was brought to the supreme court, and that the judgment of the district court was reversed, (Borden v. Noble, 26 Kan. 599;) and what has become of that case since it was decided in the supreme court, we are not informed; and no party now makes any claim under it; and there is no claim now that any final adjudication with regard to the money in Bowman's hands, or with regard to the liability of Myers to Borden or to A. B. Noble or to Mrs. Noble for that amount has ever been had.-therefore, so far as anything is shown in this case, Bowman still has the possession of the aforesaid money; Myers is still liable to Borden as garnishee for that amount, if he ever was so liable; and the status of the parties, and their relations towards each. other, still remain precisely the same as they were on the twentyseventh day of October, 1877, when the obligation sued on in this action was first executed, and on the day when the fund now in litigation was first paid by Myers to Bowman. We therefore think it follows that the rights and interests of the parties still remain the same as they were on the first day.

The obligation sued on in this action was executed by the present defendants, as obligors, to Myers and A. B. Noble and Mrs. Noble, as obligees, to secure the payment of the fund deposited by Myers with Bowman to the person to whom it might finally be decided to belong; and Myers certainly has as much right to claim that the fund shall be applied in such a manner as best to protect his rights and interests as either A. B. Noble or Mrs. Noble has to claim that the money shall be paid to him or her; and so long as Myers is liable to Borden as garnishee, and presumably he is still liable, this fund, which he placed in Bowman's hands, should not be paid to either A. B. Noble or Mrs. Noble until it shall be finally settled or determined in some manner that Myers is no longer bound to pay the same v.10p.no.2-10