—Adolph DeGaultie was indicted, tried, and convicted, in the criminal court of Harris county, upon a charge of stealing $460, in Hnited States currency, from the person of one M. Brady. The proof shows that the money was placed by said Brady in the possession of the wife of DeGaultie, in his presence, and with his assent, in the city of Hew Orleans, to be brought to Houston, Texas, and there delivered to a Mr. Kaumheimer. The money was never delivered to Mr. Kaumheimer, and when DeGaultie was called upon by Kaumheimer for the money he admitted he had spent it.
By the common law this would be nothing but a breach of trust, for which the party would only be liable in a civil action. But by our criminal statutes such conduct is declared to be something more than a civil injury. It is made a felony. The facts proved upon the trial establish beyond all reasonable doubt, by testimony perfectly legal and competent, that the accused was guilty of a violation of the criminal laws of the country, and he is amenable to the penalties of those laws. The proof shows that, in the acts done by him, he violated article 2423 of the Criminal Code, (Paschal’s Dig., p. 468,) for which he is justly obnoxious to the penalty denounced against the offense therein described. But a question is presented in this case which must be determined by the court according to the law. The common law made no distinctions in larceny, except by its classification into petit and grand, and simple and mixed, or compound larceny. This classification has the advantage of simplicity, and certainly facilitates the administration of criminal *35justice. But our criminal code makes a variety of distinctive differences in the crime of larceny or theft, depending upon the subjects and manner of its commission, annexing different penalties to the crime, which complicate, in no small degree, the application of the law to the undefined methods of pleading tolerated in our system. Our code has theft in general, which may be said to find its classification into petit and grand larceny, in affixing different penalties to the offense, according to the value of the personal property feloniously taken, stolen, and carried away. Then, specially, we have theft from the person, theft from the house, and theft of particular animals; to the offenses for which different penalties are annexed, and, consequently, to secure a conviction for these specific kinds of theft, appropriate allegations must be made in the prosecution or the charge by indictment. To charge a man with the theft of a horse, the indictment is not sustained by proof that he stole neat cattle, though each may be the felonious taking and carrying away of property in animals. To accuse a party of stealing from a house, is not responded to by proving that he stole from a carpet-bag while lying by the road-side. This certainly is not allowable, although the penalties attached to the offenses enumerated were all precisely identical. The statute itself has made them different offenses, and a party must be prosecuted for the offense he has actually committed. It is entirely incongruous with all system-— and both the law and its administration in every civilized country is recognized as a system — to charge a party with one offense, and on trial convict him of another. The verdict of the jury in this case was not responsive to the indictment. It was not a true saying. The charge is, that the accused feloniously took the money from the person of M. Brady. The verdict responds, it is true. The proof does not warrant the finding. The view of the law which we have here presented we do not think militates against article 3096 of *36Paschal’s Digest, enumerating degrees of offenses. If the charge in the indictment had been the commission of theft in general, without making the charge for a specific kind of theft, the jury might have found the defendant not guilty of the higher offense, but guilty of the specific offense which may have been proved upon the trial. If a party is indicted for manslaughter, a culpable degree of homicide, he cannot be convicted of murder. The judgment of the criminal court is therefore reversed, with directions to award a new trial.
Reversed and remanded.