Opinion
No. 14006.
Delivered February 25, 1931. State's Rehearing Granted April 1, 1931.
1. — Theft — Indictment.
The allegation in the indictment that appellant "did then and there unlawfully take one head of cattle," etc., omitting the word "fraudulently" rendered the indictment fatally defective.
ON MOTION FOR REHEARING.2. — Theft — Indictment.
By supplemental transcript, it is shown that the word "fraudulently" was by inadvertence left out of the indictment as reflected in the original transcript and the indictment is not subject to the objection originally presented.
3. — Evidence — Variance.
In prosecution for theft of cattle, there was no variance between the allegation and proof of possession of the animal alleged to have been stolen.
Appeal from the District Court of Hood County. Tried below before the Hon. Sam M. Russell, Judge.
Appeal from a conviction for theft of cattle; penalty, confinement in the penitentiary for two years.
The opinion states the case.
Will S. Payne, of Fort Worth, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.
The indictment alleges that appellant "did then and there unlawfully take one head of cattle," etc., omitting the word "fraudulently". The use of the word "fraudulently" is indispensable in charging theft under our statute. Byrd v. State, 89 Tex.Crim. Rep., 231 S.W. 399; Prim v. State, 32 Tex. 158; Conner v. State, 6 Texas App., 455; Young v. State, 12 Texas App., 614; Muldrew v. State, 12 Texas App., 617; Sloan v. State, 18 Texas App., 225; Ortis v. State, 18 Texas App., 282; Ware v. State, 19 Texas App., 13; Chance v. State, 27 Texas App., 441, 11 S.W. 457; Doxey v. State (Tex. Sup.), 12 S.W. 412; Watt v. State, 61 Tex.Crim. Rep., 136 S.W. 56; Baldwin v. State, 76 Tex.Crim. Rep., 175 S.W. 701; Newman v. State, 113 Tex.Crim. Rep., 23 S.W.2d 367. In Byrd 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 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.
ON STATE'S MOTION FOR REHEARING.
From the supplemental transcript filed in connection with the State's motion for rehearing, it is made to appear that in copying the indictment in the transcript the clerk, by inadvertance, omitted the word "fraudulently" which was, in fact, embraced in the indictment. The record, as corrected, eliminates the fault upon which the order reversing the case and ordering a dismissal was based. From the corrected record it is shown that the indictment in appropriate language charged that the appellant did "unlawfully and fraudulently take one head of cattle," etc.
No bills of exception are found in the record.
The contention is made that the proof fails to support the allegation in the indictment that the property was in the possession of Dr. A. Carmichael. Reference is made to the opinion in the case of Haney v. State, 117 Tex. Crim. 560, 36 S.W.2d 1033, (delivered Feb. 25, 1931) for a discussion of the question. The testimony touching the matter of variance is the same as that set forth in the opinion last mentioned.
The State's motion for rehearing is granted, the judgment of reversal and order of dismissal are set aside, and the judgment of the trial court is now affirmed.
Granted.