State v. McDonald, 10 Mont. 21

State v. McDonald

10 Mont. 21 | Mont. | 1890

De Witt, J.

A horse is “a neighing quadruped used in war, draught, and carriage.” (Johns. Diet.) Webster uses the term in two senses: (1) Generically, as the animal simply, including all variations of age, sex, and condition; (2) specially, as indicating the male in distinction to the female. We believe that the term has a third sense, a popular sense, as denoting a castrated male in distinction to a stallion. The indictment is carelessly drawn. It describes the animal as “an iron-gray horse, a gelding.” A “gelding” is a fully castrated horse, in distinction to a “stallion,” who is possessed of all his parts, and a “ridgling,” which is deprived of half of them. How the pleader used the word “horse” in the indictment we can determine only from the context. If he employed it in' the first sense, generically, then the word “gelding” following, defined and specialized the general term, and indicated the variety of “horse” intended, to wit, a gelding, and the allegation amounts to a charge of stealing a gelding. If the word “horse” were used in the second sense, it is equivalent to alleging that the animal was a male, and then by adding the word “gelding,” describing the kind of a male, that is, a “gelding,” in distinction to a “ stallion.” Again, if the word “horse” be employed in its most restricted sense, as meaning a castrated animal of the species, we have simply the description of a gelding. We conclude that the indictment describes the larceny of a gelding. Is the charge proved by evidence of the stealing of a “colt” or “horse”?

The statute is a special one, making the taking of certain *23animals grand larceny, without regard to the amount of the value. Statutes similar to this one use the descriptive terms “horse, mare, gelding, colt, filly, ass,” etc. Our statute omits the word “horse.” In the statutes employing this word, as a description of one of the subjects of larceny, “horse” means the unaltered male animal. (See cases infra.) Our statute supplies that term so used by the word “stallion.” In the States having the statutes referred to, it is held that an indictment for stealing a horse is not supported by evidence of larceny of a gelding, and vice versa. (Hooker v. State, 4 Ohio, 348; State v. Buckles, 26 Kan. 237; Turley v. State, 3 Humph. 323; Jordt v. State, 31 Tex. 571; 98 Am. Dec. 550; Banks v. State, 28 Tex. 644; Brisco v. State, 4 Tex. App. 219; 30 Am. Rep. 162; and Texas cases cited in Bishop on Statutory Crimes, § 248, n. 5; Wharton’s Criminal Evidence, § 124; Wharton’s Precedents on Indictments, 415, n. a; State v. Royster, 65 N. C. 539; State v. Plunket, 2 Stew. 569.) Applying the doctrines of those cases to the descriptive words used in our statute, an indictment for the larceny of a stallion would fail on proof of the taking of a gelding, and vice versa. In the case at bar the larceny alleged.is of a “gelding.” The proof is of a “horse,” — something not included in the special statute describing the subjects of larceny within the purview of its special provisions. When the witnesses testified about a horse, they meant to describe something, but what was in their minds their words do not disclose. If they used the word in the first sense indicated above they meant “ a neighing quadruped used in war, draught, and carriage,” including not only males and females, but males possessed of all of the gifts of nature, or deprived of such endowments by the art of man, and stallions, geldings, ridglings, and mares, old and young, grown and colts. If the witnesses confined the term to the second definition of “horse,” which we have shown obtains, they testified about a “stallion.” If they employed the word in the third and most restricted sense, they may have intended a “gelding.” But there is nothing to indicate that such was the signification. Thus, in the indictment, we have the description of one definite well-known object; in the proof, a term which may be applied to a half-dozen different objects. The matter is not aided if *24we take the testimony that the animal was simply a “colt.” “Colt” is separately named in the statute, and proof of stealing a “colt” does not support an indictment for taking a “gelding,” under this specially descriptive statute. Not only is the weight of authority with these distinctions, but we are of opinion that they are well taken, and not technical. A defendant is not proven guilty if it be shown that he took not the article charged in the indictment, but may have taken one of several others, when the statute specially distinguishes between the objects. The judgment is reversed, and the cause remanded for a new trial.

Blake, C. J., and Harwood, J., concur.