Taylor v. State , 23 Tex. Ct. App. 639 ( 1887 )

Willson, Judge.

It is usual but not essential in an indictment for burglary to allege that the breaking and entering was without the consent of the owner or occupant of the house. (Smith v. The State, 22 Texas Ct. App., 350; Buntain v. The State, 15 Id., 485.) In this particular the indictment before us is not bad; but in another particular we think the indictment is fatally defective.

Opinion delivered June 18, 1887.

It is well settled that an indictment for this offense must allege the felony or theft intended to be committed, with same particularity as would be required in an indictment directly charging such félony or theft. Such intended felony or theft must be described with all its statutory ingredients. (Reed v. The State, 14 Texas Ct. App., 662; Treadwell v. The State, 16 Id., 643). In this case, therefore, in alleging the intended theft it was essential to properly negative the consent of the owners of the property intended to be taken. The pleader has attempted to do this by alleging that the defendant intended to fraudulently take the personal property of J. W. Bilgen and R. Y. Holman without their consent. Such allegation is insufficient. When there are more owners than one, an indictment for theft must allege that the taking was without the consent of either of said owners. (McIntosh v. The State, 18 Texas Ct. App., 284; Taylor v. The State, Id., 489.)

When a separate possession and ownership of the property in two or more persons is charged, as was the case in Smith v. The State, 21 Texas Court of Appeals, 96, this rule does not obtain; but the indictment before us charges a joint possession and ownership of the property intended to be stolen, in two persons, and, such being the case, it did not charge an intended theft, because it did not exclude the conclusion that one of the joint owners might have consented to the taking, but only that they did not jointly consent to it. If but one of the owners had consented to the taking, there would have been no theft, notwithstanding they might not jointly have consented thereto.

Because, in our opinion, the indictment is fatally defective, the judgment is reversed and the prosecution dismissed.

Reversed and dismissed.