George Baldwin, plaintiff in error v. The People of the State of Illinois, defendants in error, 1 Scam. 304

Smith, Justice, delivered the opinion of the Court : The plaintiff in" error was indicted and convicted of larceny, at the October term of the Cook Circuit Court, 1836. The indictment charged him with feloniously stealing and carrying away one horse, the proper goods and chattels of one Ashbel Steele. On the trial, the prisoner’s counsel asked the Court to instruct the jury, “That if they believed from the evidence that the property stolen was a gelding or a mare, that in point of law the indictment was not sustained,” which the Court refused to do. This is alleged for error.

There can be no doubt that the refusal was proper. The term horse, used in the indictment, is descriptive of the genus of the animal, and not of the sex or character changed by artificial means. The animal was still a “ horse,” no matter what the sex, and so was it still a horse, although it might be a gelding. The second ground of objection raised, that the Court refused to instruct the jury “ That if they believed the animal was riden, driven, or led away, the proof did not sustain the indictment,” is without reason to sustain it, and cannot be entitled "to consideration.

It cannot be expected that the proof is to correspond with the literal

interpretation of the words, and that the party, because he did not literally carry away the animal, is not guilty. The judgment of the Circuit Court of Cook county is hereby affirmed, and the said Court are directed to cause the execution of the judgment and sentence of the said Court to be carried into effect without delay. The defendants in error are also to recover costs in this Court attending the prosecution of the writ of error, and have execution therefor. Judgment affirmed.