¶1The judgment rendered in this case must be reversed on account of error in the charge of court, below to the jury.
¶2The first portion of the charge is simply intended as at definition of the crime of theft of personal property generally, and is inapplicable to this case as made by the indictment and the evidence. What is said in Articles 756 and 757 of the Penal Code (Pasc. Dig., Arts. 2394, 2395) has no applicability to this case, because by the succeeding Article it is provided that “the two preceding Articles do not-apply to theft of property from a house or from the person, nor to cases of theft of a particular kind of property, where the punishment is specially prescribed.” Pasc. Dig., Art. 2396.
¶3By the 765th Article of the Penal Code the offense here charged—theft of a gelding—is by law a case of theft of a particular kind of property, where the punishment is spe*299cially provided, namely, confinement in the penitentiary not. less than five years nor more than fifteen years. Pase. Dig.,. Art. !2409.
¶4But the particularly objectionable feature of the charge is that portion which fixes the punishment. The indictment is for the theft of a gelding, and the evidence shows that the animal was a gelding. This is made a separate and distinct offense, having its proper punishment affixed; yet the-charge does not instruct the jury as to the punishment affixed to the crime of theft of a gelding, but charges as to-the punishment for theft of a mare, which is also a separate- and distinct offense from that óf theft of a gelding. See-Art. 2409, above referred to.
¶5It has been held that the word “horse,” not being used1 in its generic sense in the Article above referred to, did not. include “gelding, mare, or colt.” This being true, we must, hold, and for equally as good reason, the word “mare” was not intended to include “gelding.” Banks v. The State, 28 Texas, 647.
¶6It must not be amiss to state further that from our understanding of the evidence, as shown by the record, the judge might with propriety have given the accused the benefit of' an instruction on the subject of reasonable doubt.
¶7Because of error in the charge of the court, the judgment, is reversed and cause remanded.
¶8jReversed and remanded.