¶1The opinion of the court was delivered by
¶2This was a criminal prosecution for the larceny of “ one light bay horse.” The prosecution was had under §78 of the act relating to crimes and punishments. ( Comp. Laws 1879, p. 337.) Said section, so far as it is necessary to quote it, reads as follows :
¶3“Every person who shall be convicted of feloniously stealing, taking and carrying away . . . any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep, or hog, belonging to another, shall be deemed guilty of grand larceny.”
¶4This section was first enacted in 1855, and has been the law of Kansas ever since. On the trial of the case, it was proved and admitted that the animal alleged to have been stolen was in fact a gelding; and there was no evidence introduced tending to show that the animal was anything else but a gelding. The defendant asked the court below to instruct the jury among other things, as follows:
¶5“Proof that the property alleged to have been stolen was a ‘gelding’ does not support the information that the property stolen was a ‘ horse.’
¶6“If the jury find from the evidence that the defendant did not take, steal and carry away one light bay horse, the property of said Robert P. Johnson, in manner and form as alleged in the information, but that he did feloniously take, steal and carry away one light bay ‘gelding,’ the property of said Rob*241crt P. Johnson, such finding will not support the allegations of the information, or warrant a verdict of guilty.”
¶7But the court below refused to give these-instructions, and did not give any instructions embodying the propositions of law contained therein; to which refusal the defendant duly excepted. The jury found defendant guilty as charged in the information. The defendant then moved for a new trial, and in arrest of judgment, which motions the court below overruled, and then rendered judgment against the defendant, sentencing him to imprisonment in the penitentiary for the term of four years; to all of which the defendant duly excepted. The defendant now appeals to this court.
¶8Upon authority, and the statutes of this state, we think the judgment of the court below must be reversed. (Hooker v. The State, 4 Ohio, 348; Banks v. The State, 28 Tex. 644; Lunsford v. The State, 1 Tex. Ct. App. 448; The State v. Plunkett, 2 Stewart [Ala.], 11, 12; Bush v. The State, 18 Ala. 415, 416; Turley v. The State, 3 Humph. 323; The State v. Ingram, 16 Kas. 19; Whar. Cr. Ev., § 124; 1 Bish. Cr. Pro., §§365, 366; Chitty’s Cr. L., p. 283; 2 Arch. Cr. L., p. 399; and authorities cited in defendant’s brief.)
¶9It is true that the word “ horse ” is generally used as a generic term, including all animals of the horse kind — including stallions, mares, geldings, colts, and fillies; but it is not so used in the statute. In the statute it is simply used in the sense of stallion. An indictment or information, therefore, which merely charges the larceny of a horse, does not charge the larceny of any animal except a stallion, and therefore is not sustained by proof showing the larceny of a gelding. Where an indictment or information charges larceny of one of the specific animals mentioned in the statute, the charge is not sustained by proof of the larceny of any one of the other specific animals mentioned in the statute. If the statute had simply used the word “horse,” and not used the words “mare, gelding, colt and filly,” then we think that proof of the larceny of a gelding would be sufficient; but under the statute which specifically mentions the different kinds of animals of *242the horse kind, and under the authorities, we cannot say that proof of the larceny of a gelding will support a charge of the larceny of a horse.
¶10There are two authorities seemingly against this view,— one in Illinois, (Baldwin v. The People, 2 Ill. 304,) and one in Missouri, (The State v. Donnegan, 34 Mo. 67.) But we do-not think that the Illinois decision is, in fact, against the view we have expressed, for it does not appear that they had any statutes in Illinois, at the time that case was decided, (1836,) similar to ours; and it can hardly be said that the decision in Missouri is against the views we have expressed, for although they have a statute in Missouri the same as ours, yet it does-not appear that the attention of the court was called to the statute. The whole of the decision in the Missouri case with reference to this question, reads as follows; “At the-trial, evidence was given of the larceny of a gelding, and ob-, jection was made that it did not support the indictment for stealing a horse. There is no force in the objection.” It would seem that the Missouri case was decided with but)very little consideration; and while we think that the law ought to-be as it was decided to be in Missouri, yet we think the decision is against all authority.
¶11The judgment of the court below will be reversed, and the cause remanded for a new trial.