Spain v. State ( 1885 )

Willson, Judge.

This conviction is for the theft of a colt, and the indictment fails to allege that the taking was fraudulent and is therefore substantially defective. (Sloan v. The State, 18 Texas Ct. App., 225.)

It is urged by defendant’s counsel that, as the evidence shows that' the animal was three years old when taken, it was- not a colt as alleged in the indictment, and that therefore there is a fatal variance between the allegation and the proof. This appeal has been prosecuted solely upon this supposed error. It is unnecessary that we should decide the question, but we will take occasion to remark that it is as easy, in charging this offense, to describe the animal as a horse as it is to describe it as a colt, and by so doing this question could not arise.

" Because the indictment is fatally defective the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

[Opinion delivered December 2, 1885.]