delivered tbe opinion of the court.

Tbe indictment charging appellant with stealing a horse was returned on January 9,1909. Tbe evidence for tbe state clearly and definitely showed that tbe ,Jiorse *505was stolen in April, 1900, some three months after the indictment was filed. We fail to find any evidence in the proof from which we can decide that the state’s witnesses made a mistake in their testimony fixing the date when the horse was taken in April, 1000. As the proof shows that the crime was committed on a date subsequent to the filing of the indictment, we cannot uphold the conviction of appellant.

Reversed cmd remanded.