Treadwell v. State , 1884 Tex. Crim. App. LEXIS 160 ( 1884 )

Willson, Judge.

In affirming the judgment in this case we overlooked a fatal defect in the indictment. It fails to allege that the entry of the house was with the intent to take the property therein being without the consent of the owner of said property. In other words, in charging the intended theft, the essential allegation “without the consent of the owner” is omitted.

It is well séttled that in an indictment for burglary “the particular felony or theft intended to be committed must be described with all its statutory ingredients.” (Webster v. The State, 9 Texas Ct. App., 75; Rodrigues v. The State, 12 Texas Ct. App., 552; Reed v. The State, 14 Texas Ct. App., 662.) One of the statutory ingredients of theft is that the property must be taken “without the consent” of the owner thereof, and this want of consent must be alleged and proved in order to sustain a conviction for the offense. (Penal Code, Art. 724; Williams v. The State, 12 Texas Ct. App., 394.)

Because of this fatal defect in the indictment, the motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of conviction is reversed and the prosecution is dismissed.

Ordered accordingly.

Opinion delivered June 27, 1884.