28 Tex. 644 | Tex. | 1866
—The appellant was indicted for the theft of a horse. Upon the trial it was proved that the animal stolen was a mare. The court instructed the jury that the proof of the theft of a mare was sufficient to support the indictment. The defendant was convicted, and he has appealed to this court.
Art. 765, O. & W. Dig., Penal Code, under which he was indicted, reads as follows, to wit: “If any person shall steal any horse, gelding, mare, colt, ass, or mule, he shall be punished by confinement in the penitentiary, not less than five nor more than fifteen years.”
The word “horse” is a generic term, including ordinarily in its signification the different species of that kind of animals, however diversified by age, sex, use, or artificial means; and if the word “horse” had been used in this article, without specifying the species, we would have been entirely satisfied with the ruling of the court, because the word “horse” in its generic sense would include a mare, and there would be no variance between the averment and evidence. It could not be contended successfully that the defendant had been indicted for stealing one thing and convicted for stealing another and different thing.
But from precedent and authority we feel constrained to hold, that the word “horse,” in the article cited, was not intended to be used in its comprehensive and generic sense, and that it was used as synonymous with
If this rule has been departed from apparently, it has been where the statute has used the generic term in respect to the animals, as is done in O. & W. Dig., Penal Code, Art. 766, in respect to neat cattle, sheep, goats, and hogs.
A different rule would govern under this article, for the reason that the generic terms are only used which include the species; such as “ sheep” includes “ ewe, wether, and lamb,” &c. And the fact that the species are not named in this article is an argument in favpr of the views we have taken in respect to the one next preceding it. (1 Scam., 304; 20 Vt., 537; 22 Tex., 591.)
Other authorities might be cited, but we deem these
Reversed and remanded.