The indictment in this case describes the stolen animal as “ a certain horse,” the property of Antonio Luna, and alleges the theft to have occurred on the tenth day of June, 1879. The testimony of Juan Luna, the owner of the horses stolen (Antonio Luna being the special owner), establishes the fact that both animals were geldings, and the entire testimony leaves it free from doubt that the theft was perpetrated about the time laid down in the indictment, and anterior to the time the Revised Penal Code went into operation. Under the laws in force at the date of the offence, the discrepancy between the allegation and proof, as respects the character of the animal stolen, was fatal. Banks v. The State, 28 Texas, 644, and many decisions since.
The change in the Revised Penal Code, art. 746, cannot be held to affect offences committed prior to the time it took effect, because such a construction would authorize a conviction upon different testimony than the law required at the time the act was done, and would therefore come within the inhibition of our Constitutions, State and Federal, as in ex post facto enactments. Calloway v. The State, 7 Texas Ct. App. 583.
*78Because of a variance between the allegation and proof, as indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.