Beavers was charged by indictment with the theft of a steer.

Upon the trial the learned judge charged the jury that the evidence would not authorize them in finding the defendant'guilty of theft; but that, if they believed from the evidence that defendant did unlawfully kill the steer mentioned in the indictment, without the consent of the owner * * * under such circumstances as not to constitute theft, they should find the defendant guilty of a misdemeanor, and assess his punishment at a fine not to exceed one thousand dollars. Defendant, by his counsel, requested the court to charge the jury that under the indictment they could not find the defendant guilty of this misdemeanor. This charge of course was refused, and defendant was convicted of the misdemeanor, a fine of ten dollars being the punishment assessed by the jury. From this judgment the defendant appeals.

Under an indictment for the theft of the steer, could defendant be legally convicted for unlawfully killing, etc., the steer mentioned in the indictment? Does theft include this offense? Most clearly it does not.

For the error in the charge, the judgment is reversed and the cause remanded.

Beversed and remanded.

Opinion delivered June 29, 1883.