Opinion
No. 15635.
Delivered November 9, 1932.
1. — Theft — Indictment — "Fraudulently."
The use of the word "fraudulently" is indispensable in charging theft.
2. — Same.
In prosecution for theft, the allegation that appellant "did unlawfully take, steal and carry away" is not equivalent to an averment that he "did then and there fraudulently take," etc.
Appeal from the District Court of Freestone County. Tried below before the Hon. Lex Smith, Judge.
Appeal from a conviction for theft of hogs; penalty, confinement in the penitentiary for two years.
Reversed and prosecution ordered dismissed.
The opinion states the case.
P. O. French, of Fairfield, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is theft of hogs; the punishment, confinement in the penitentiary for two years.
The indictment alleges that appellant "did then and there unlawfully take nine hogs," etc., omitting the word "fraudulently." The use of the word "fraudulently" is indispensable in charging theft under our statute (Pen. Code, 1925, art. 1410). Haney v. State, 117 Tex.Crim. Rep., 37 S.W.2d 746; Phillips v. State, 89 Tex.Crim. Rep., 231 S.W. 400, 401, and authorities cited. In Phillips v. State, supra, it was held that an allegation that the appellant "did unlawfully take, steal and carry away" was not equivalent to an averment that he "did then and there fraudulently take," etc.
The judgment is reversed and the prosecution ordered dismissed.
Reversed and prosecution ordered 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., not sitting.