State v. Plunket , 2 Stew. 11 ( 1829 )

By JUDGE COLLIER.

The question reserved for the consideration of this Courtis, “can a defendant, on an indictment for stealing a horse, and it is proved to be a gelding, be convicted?”

The statute which directs the punishment for such an of-fence is in these words, “That if any person do feloniously take or steal any horse, mare or gelding, foal or filly, ass or mule; the person so offending shall, &c. ”^a When a generic term employed in a statute is succeeded by one more definite in its meaning, it is necessary in an indictment predicated upon such statute, that the latter term should be used. Let this principle be applied: the word gelding being used after a term more general in its import, and the proof shewing a gelding to have been the subject matter of the theft, it results from this discrepancy between the allegation and the proof, that the defendant cannot be punished for the offence charged. Again, when a statute describes more objects of larceny than one, the legislature are to be understood as mentioning them in contradistinction to each other, and an indictment must be framed according to the particular facts, even though one of the descriptive terms may be sufficiently comprehensive to include all. Hence it follows, that before a defendant receives the statutory punishment, he must be found guilty on an indictment charging the particular offence which he has committed.^b

If the descriptive term “horse” alone, had been used, evidence that a gelding was stolen would have been adkut as the legislature have thought proper to particularize and define other objects, the conclusion is obvious, from the reasoning employed, that in an indictment upon the statute it is necessary to be equally specific.

With this view of the question, the Court are unanimous in the opinion that the judgment below should be reversed.

Judgment reversed.

a Law of Ala. 208‘

b Stark.Crim. Plead. 214, 249, 2 Hale, I82-3. 2 Hawk. 480, 486, 615, 616 3 Chit. Crim. Law 737. 2. East. 576