Opinion
No. 13885.
Delivered November 19, 1930.
1. — Burglary — Indictment.
Where burglary is charged to have been committed with intent to commit the offence of theft, each element or ingredient of the theft intended to be committed must be alleged.
2. — Same.
One of the requisites of an indictment for theft is an allegation that the accused took the property with intent to deprive the owner of the value thereof.
Appeal from the District Court of Archer County. Tried below before the Hon. Vincent Stine, Judge.
Appeal from a conviction for burglary; penalty, confinement in the penitentiary for two years.
The opinion states the case.
E. S. Weldon of Archer City, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is burglary; the punishment, confinement in the penitentiary for two years.
The burglary was charged with intent to commit theft. It was not averred in the indictment that appellant intended to deprive the owner of the value of the property.
Where burglary is charged to have been committed with intent to commit the offense of theft, each element or ingredient of the theft intended to be committed must be alleged. Branch's Annotated Penal Code, Section 2329; Robinson v. State, 160 S.W. 456; Reed v. State, 14 Tex. Ct. of App. 662; Treadwell v. State, 16 Tex. Ct. of App. 643. One of the requisites of an indictment for theft is an allegation that the accused took the property "with intent to deprive the owner of the value thereof." Moore v. State, 166 S.W. 1153; Branch's Annotated Penal Code, Section 2456.
The indictment is fatally defective.
The judgment is reversed and the prosecution ordered dismissed.
Judgment reversed and prosecution dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
HAWKINS, J., absent.