dissenting: The evidence in this case was insufficient as a matter of law to support a conviction. It was not shown that Mae McLaughlin knowingly participated in planning or carrying out the crime. She was convicted of stealing cattle. The evidence of the state established the crime was planned and carried out by her husband and two other men, who were later convicted.
Under K. S. A. 21-105 a principal in the second degree (accessory before the fact) may be charged and punished as a principal in the first degree. (State v. Yohe, 203 Kan. 855, 457 P. 2d 12.) However, it must be shown that a principal in the second degree knowingly participated in the crime by doing or saying something to show a consent to the felonious purpose and to contribute to its execution.
The defendant was charged as a principal in this case and convicted of stealing three steers on the basis of Pope’s testimony. Accepting that testimony as true, what did this lady do or say to show a consent to the felonious purpose and to contribute to its execution?
The morning the crime was committed she fixed breakfast for her husband and his two friends. She accompanied the three men and participated in searching for antique bottles around vacant farmsteads. When they arrived at the Pike farmstead she looked around in the farmyard and then returned to the car.
Pope testified that defendant’s husband discovered three steers in the barn and the three men had a conversation about stealing the cattle, “out of Mae’s presence.” That evening Mrs. McLaughlin was with her husband in his car when they returned to the Pike Farm. The men had borrowed a trailer which was hitched to Pope’s pickup. The pickup was driven by Wyss. The men loaded the steers into the trailer and Pope and Wyss hauled them to the Frisbie farm for safekeeping. The defendant remained in her husband’s car and returned home with him. The next morning *591the men loaded the steers into the trailer and hauled them to a locker plant for slaughter. The men picked up the hides and disposed of them later.
Carefully sifting through the state’s evidence, I find nothing to establish a knowing participation in the crime by Mrs. McLaughlin. The only thing from which a consent to the felonious purpose can be inferred is her presence in her husband’s car at or near the scene of the crime.
In State v. Douglass, 44 Kan. 618, 26 Pac. 476 it was said:
“. . . [N]or have we any statute making the consenting to even the commission of a crime an offense, unless the consent amounts to the counseling, aiding, or abetting in the commission of such crime. Hence, where a thing is not an offense at all, a party cannot be guilty of committing an offense by merely consenting thereto; and even where the thing is an offense, a party can be guilty of committing an offense by consenting thereto only where his consent is of that affirmative and expressed character which amounts to a counseling, aiding, or abetting in the commission of the offense. ‘He must do or say something showing consent to the felonious purpose, and must contribute to its execution.’ (1 Am. & Eng. Encyc. of Law, 63, 64.)
“. . . And that mental consent to a crime, where no expressed consent is given by any word or act, does not make the person consenting guilty of an offense, see the following authorities: Clem v. The State, 33 Ind. 418; The State v. Cox, 65 Mo. 29; White v. The People, 81 Ill. 333; The State v. Hildreth, 9 Ired. Law, 440; same case, 51 Am. Dec. 369; 1 Whar. Cr. Law, §§ 211, 211a, 211d. . . .
“In the case of The State v. Cox, ante, it was held that ‘The mere mental approval by a bystander of a murder committed in his presence, does not make an accomplice in the murder.’ . . .” (pp. 625, 626.)
The state failed to prove a felonious intent on the part of Mrs. McLaughlin. This failure is highlighted in the majority opinion where the evidence on that necessary element is collected in one short paragraph at page 589 of the opinion. It read:
“The evidence clearly establishes that the appellant was present at the time the crime was committed. By her own admission, she was present when the beeves were picked up at the packing plant. Likewise, there was testimony showing she altered the check after it had been cashed in an attempt to make it appear the check was given to Pope in payment for a portion of the beef, which alteration would serve to substantiate her story.”
Clearly the state’s case rests solely upon the presence of Mrs. McLaughlin in her husband’s car at the scene of the crime.
The balance of the evidence recited refers to matters occurring after the steers were processed and after the crime of stealing the steers had been accomplished.
*592Mrs. McLaughlin was not charged with concealing the crime or with assisting the others in avoiding arrest. Under K. S. A. 21-106 an accessory after the fact is guilty of a separate and distinct offense. This offense must be separately charged and carries a distinct penalty. The testimony concerning the change made on the check cannot supply evidence of a felonious intent to steal the steers. It might indicate a desire to assist her husband in avoiding arrest but she was not charged as an accessory after the fact. It should be noted the check was signed by her husband, drawn on his personal checking account and not on a joint account in which the wife had an interest.
Mrs. McLaughlin’s presence when the meat was picked up from the locker does not support or prove a felonious intent to steal the steers from the Pike farm. Any inference to be drawn from her presence must depend upon evidence of a knowing participation in the crime, which is absent.
What was said in State v. Doyle, 201 Kan. 469, 441 P. 2d 846 is applicable to the present case. There it was held:
“Presumption and inferences may be drawn only from facts established, and presumption may not rest upon presumption or inference on inference, and the rule is doubly applicable in criminal cases.” (Syl. ¶ 8.)
One last matter deserves mention. Hearsay testimony was admitted during the trial over objection. The testimony was that of Pope concerning conversations of the three men in the barn when they planned the larceny of the cattle. These were conversations outside the hearing and presence of the defendant.
The majority justify the admission of this hearsay testimony on the basis of a special rule applicable in conspiracy cases, where third party witnesses are permitted to testify to conversations with one or more of the conspirators. State v. Borserine, 184 Kan. 405, 337 P. 2d 697 is quoted by the majority in support thereof. It is not applicable in the present case. The general rule requires the conspiracy to be first established prima facie. It is only when proof of the conspiracy depends upon a vast amount of circumstantial evidence that the requirement of a prima facie case may be disregarded. It should be noted the theory of admissibility upon which the exception is based is wholly inapplicable to the present case. There was no conspiracy. Mae McLaughlin took no part in the planning. There was no vast amount of circumstantial evidence and no vast number of isolated and independent facts. Additionally, *593in Borserine it was pointed out the declarations must be such as promote and further the common criminal design previously formed. In the present case this hearsay conversation did not promote and further a common criminal design previously formed, for it was only by reason of this conversation that a common criminal design among the three men was formed.
In State v. Johnson, 40 Kan. 266, 19 Pac. 749 as quoted in Borserine it was said that mere admissions or narrations of that which took place which have no tendency to promote the common criminal intent are inadmissible against anyone but him who made it.
The eventual admonition to the jury to disregard the conversation came after three prior conversations of the same objectionable nature were admitted. It was impossible for the jury to know which of these, if any, were to be disregarded. In my opinion the Borserine case does not support the admissibility of this testimony and the testimony was highly prejudicial. The case should, on this point alone, be reversed and sent back for a new trial.
However, even with this prejudicial hearsay testimony, the evidence was insufficient as a matter of law to support a conviction. Therefore, I respectfully dissent.
Fontron, J., joins in the foregoing dissent.