Madison Banks, a Freedman v. The State, 28 Tex. 644

Smith, J. —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 the word “ stallion,” or at least it was not in that connection intended to include “gelding, mare, or colt.” It is our duty to give to the

article such a construction as will give effect and meaning to each word as nearly as can he consistently done with the object and purpose of the legislature. The statute itself, in creating and providing for the punishment of the offense, appears to fix its own meaning to the words used.

It specifically describes the different species of property by the use of the words “horse, gelding, mare, colt, ass, or mule,” evidently discriminating between them as different species of property, and as much between horse and mare as between horse and ass or mule-The averments of the indictment must be equally specific, and the proof must correspond with the averment. This construction of similar statutes has been adopted in England. (Whart. Amer. Crim. Law; Roscoe Crim. Ev.; 2 East, P. C., 616; Leach, 123; 1 Moody C. C., 24; Arch. Crim. Plead, and Prac., p. 399 and notes; 2 Russ. on Crim.

Law, 133.) And the same rule, under like statutes, has been adopted in the United States, so far as we have been enabled to examine the authorities. (Hooker v. The State, Ohio, 349; Turly v. The State, 3 Humph., 324.) 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 sufficient, and for the errors apparent the judgment is reversed, and cause remanded for further proceedings. Reversed and remanded.