Garrett v. State , 118 Tex. Crim. 71 ( 1931 )

HAWKINS, Judge.

Conviction is for burglary; punishment, two years in the penitentiary.

The indictment undertook to charge appellant with the burglarious entry of a housfe occupied by J. E. Carden with the intent to commit the offense of theft. Nowhere in the indictment is it alleged that the entry was made with the intent to take property from the “possession” of anybody. This is a necessary element of the offense of theft which must be averred in charging burglary with intent to commit that offense. The indictment in the present case is exactly like that in Mitchell v. State, 118 Texas Crim. Rep., 77, 37 S. W. (2d) 1018. See authorities cited in the opinion in the Mitchell case; see also, Culpepper v. State, 112 Texas Crim. Rep., 350, 16 S. W. (2d) 1095.

For the defect pointed out, the judgment must be reversed and the prosecution ordered dismissed under the present indictment.

Reversed and prosecution ordered dismissed.