I. The statute expressly gives a defendant in criminal, as well as in civil cases, the entire term wherein to file his bill of exceptions, so that it makes no difference if the affidavit, for the appeal is filed previously or subsequently to the tiling of the bill of exceptions.
II. If there was any irregularity in the affidavit for taking the cause from the regular judge, bj7 reason of such affidavit lacking the oath of two or more reputable persons, this did not oust the jurisdiction of the special judge. Any objections on the score of irregularity should have been taken at the time, and cannot be listened to here. State v. Knight, 61 Mo. 373.
III. The indictment, which was for embezzling three horses, was framed under the first clause of section 35, page 458,1 Wagner’s Statutes. The agency of the defendant is -distinctly set forth. The indictment is sufficient. State v. Meyers, 68 Mo. 266.
IV. As the indictment charged the embezzlement of the horses, any evidence respecting the embezzlement of the proceeds of the horses, was clearly inadmissible, and any instructions based upon such evideuce, erroneous. Judgment reversed and cause remanded.