Jordt v. State
| Decision Date | 31 January 1869 |
| Citation | 31 Tex. 571 |
| Parties | CHARLES JORDT v. THE STATE. |
| Court | Texas Supreme Court |
Article 765 of the penal code reads as follows: “If any person shall steal any h??rse, gelding, mare, colt, ass or mule, he shall be punished by confinement in the penitentiary not less than five nor more than fifteen years.” Pas. Dig. art. 2409, note 686. A gelding is not a horse, but a eunuch; and an indictment for stealing a horse is not sustained by proof that the accused stole a gelding.
APPEAL from Colorado. The case was tried before Hon. I. B. MCFARLAND, one of the district judges.
The defendant was indicted for stealing “a certain sorrel horse,” etc. The judge charged the jury to determine from the evidence whether the animal stolen was a horse or not. The jury returned a verdict of guilty, and sentenced the defendant to five years' imprisonment in the penitentiary. The witnesses all swore that the animal was a horse, but that he had been gelded. It was assigned for error, that the court refused an instruction asked by the defendant; but no such instruction was in the record. There was a motion for a new trial overruled, and that was assigned for error.
W. J. Darden, for plaintiff in error. A gelding is not a horse. Penal Code, art. 765; Whart. Cr. Law, 136, 224; 4 Ohio, 350;Banks v. The State, 28 Tex. 644.
E. B. Turner, Attorney General, for the state. The only point in this case, whether under our statute an indictment for theft of a horse can sustain a verdict and judgment where the proof shows that the animal stolen was a gelding, as in this case. Pas. Dig. art. 2404.
This statute names both, and thereby seems to recognize a distinction, whether wisely or not, is not the inquiry.
My examination has resulted in finding cases sustaining the view of the appellant. Hooker v. The State, 4 Ohio, 348. The case is submitted upon the transcript.
The appellant in this case was indicted for stealing a horse. The proof showed that the property taken was a gelding, an animal which may be, like all eunuchs, of no sex. The criminal code provides that where words in the masculine gender are used in the penal statutes of the state, they shall include the feminine also. This case does not come within the category of that general provision, for a gelding is neither the one nor the other. The term is used in the statute upon which this indictment was founded distinctively from the word horse, and a conviction for the theft of a horse, upon the proof of...
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Bartley v. State
...since the statute of Texas did not employ the word "horse" in a generic sense. Of like purport are Turley v. State, 22 Tenn. 323; Jordt v. State, 31 Tex. 571. Commonwealth v. Howe, 132 Mass. 250, the indictment was for obtaining a certain sum of money by false pretenses, which charge, it wa......
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Bartley v. State
...the statute of Texas did not employ the word “horse” in a generic sense. Of like purport are Turley v. State, 3 Humph. (Tenn.) 323;Jordt v. State, 31 Tex. 571. In Com. v. Howe, 132 Mass. 250, the indictment was for obtaining a certain sum of money by false pretenses, which charge it was rul......
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Canterberry v. State
...... 300; Dick v. State, 30 Miss. 630; Commonwealth. v. McGowan, 1 Metcalf (Ky.), 368; Kinnard v. State, 35 Texas Crim. Rep., 276; State v. McDonald, 10 Mon., 21, 24 American St. Rep., 25;. Lunsford v. State, 1 Tex. Ct. App., 448; Brisco. v. State, 4 Tex. Ct. App., 219; Jordt v. State, . 31 Tex. 571; Lynch v. State, 89 Ala. 18. These. authorities demonstrate that the allegation must be supported. by the evidence, even where the allegation is a matter of. description that need not have been inserted. 1 Greenleaf. (15th ed.), secs. 65, 68; Gray v. State, 11 Tex. ......
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State v. Russell
...authority for the proposition that the variance between the pleading and proof would have been fatal in any event. See Jordt v. State, 31 Tex. 571, 98 Am.Dec. 550 (1869); Martinez v. Territory, 5 Ariz. 55, 44 P. 1089 (1896); Mobley v. State, 57 Fla. 22, 49 So. 941 (1909); and Clemons v. Sta......