Johnson v. State , 1884 Tex. Crim. App. LEXIS 127 ( 1884 )

White, Presiding Judge.

This prosecution was commenced by indictment presented and filed November 25, 1876, and the charge preferred in said indictment was “that Anderson N. Johnson, on the twenty-first day of August, 1876, in the county of Houston aforesaid, one gelding of the value of seventy-five dollars, the corporeal personal property then and there of Amanda Brown, fraudulently and feloniously did take, steal and carry away,” etc. At the time this offense was alleged to have been committed, theft of a gelding, as distinguished from theft of a horse, was a specific offense, made so by the statute of 1858, which provided that, “If any person shall steal any horse, gelding, mare, colt, ass, or mule, he shall be punished,” etc. (Pas. Dig., Art. 2409.)

Construing this statute, our Supreme Court, in Banks v. The State, 28 Texas, 644, say: “The word ‘horse,’ in the Article cited, was not intended to be used in its comprehensive and generic sense, and 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 construction as will give effect and meaning to each word, as nearly as can be 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, ass, or mule. The averments of the indictment must be equally specific, and the proof must correspond with the averment.” Many subsequent decisions to the same effect have since been made. (Keese v. The State, 1 Texas Ct. App., 298; Lunsford v. The State, Id., 448; Parsons v. The State, 3 Texas Ct. App., 240; Brisco v. The State, 4 Texas Ct. App., 219, and authorities cited.)

Under Article 746 of our Code, adopted as part of our Revised Statutes in 1879, the generic word “horse” is used as embracing all the horse species as distinguished from “ass or mule,” and this is the statute now in force. It repealed the previous statute, it is true, so far as the distinction between the different members of the horse family had theretofore existed: but by express provision of the “Final Title” to the Revised Statutes, a rule was prescribed for pending cases both civil and criminal, to the effect “that no offense committed, and no liability, penalty or forfeiture, either civil or criminal, incurred prior to the **~ when any statute, or part thereof, shall be by the Revised Statutes, shall be discharged repeal or alteration; but prosecutions and sui liabilities, penalties or forfeitures shall be insf ed with in all respects as if such prior statute, not been repealed or altered, except that when cedure or matters of practice have been changed by the Revised Statutes, the procedure had, after the Revised Statutes shall have taken effect, in such prosecution, or suit shall be as far as practicable in accordance with the Revised Statutes.”

In the case before us the charge in the indictment being “ theft of a gelding,” and that being a descriptive allegation of a specific offense under the law at the time in force, the proof should have corresponded with the allegation, and being descriptive of the identity of the offense, the prosecution was bound to sustain it by the proofs. This was not done. Nowhere in the proofs do we find any evidence that “the horse” proven to have been stolen was “a gelding.”

This identical question was decided by this court in Velasco v. The State, 9 Texas Court of Appeals, 76, in which it was held that to apply the new provision, Article 746 of the Revised Penal Code, in a trial for horse theft committed before the Revised Codes took effect, would be ex post facto (citing Calloway v. The State, 7 Texas Ct. App., 585), and that a variance between the allegation and the proof is fatal to the conviction, notwithstanding that the trial was had since the Revised Codes took effect. On the ground of variance thus manifest, the judgment must be reversed.

On the sufficiency of the evidence, in addition to the fact that defendant raised a serious question as to his personal identity, it is made to appear that on the night the horse was stolen one “ Mr. Parker stole defendant’s wife,” or the wife of the man defendant was supposed to be. And whilst defendant disappeared himself that night, and his saddle bags and saddle also disappeared, it is not improbable, and not altogether unreasonable in the absence of proof, that Mr. Parker wanted a horse to carry the woman off on, and, being so wholly regardless of defendant’s domestic rights, he might have concluded further not to respect his property rights in the saddle and saddle bags, which articles he could perhaps utilize to advantage with the horse in his purposes and intent to rob the man of his wife.

We would not do intentional injustice to Mr. Parker, but these suggestions are thrown out because the disappearance of the saddle and saddle bags on the night the horse and woman were stolen are the principal inculpatory facts in the record against defendant, and whilst they may be pertinent and strong circumstances if his identity be established, they do not of themselves exclude every other reasonable hypothesis but that of his guilt, as we have endeavored to show.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered June 11, 1884.