31 Tex. 571 | Tex. | 1869
—The appellant in this case was indicted for stealing a horse. The proof showed that the property taken was a gelding, an animal- which may be, like all eunuchs, of no sex. The Criminal Code provides that where words in the masculine gender are used in the penal statutes of the State, they shall include the feminine also. This case does not come within the category of that general, provision, for a gelding is neither the one nor the other. The term is used in the statute upon which this indictment was founded distinctively from the word horse, and a conviction for the theft of a horse, upon the proof of taking feloniously a gelding, would be as incongruous as that of stealing a mule or an ass upon a similar indictment.
If the theft of a specific domestic animal was committed, it should have been correctly charged in the indictment. For the error of the court in refusing a new trial the judgment is reversed, and the cause remanded.
Reversed and remanded.