Opinion
No. 15917.
Delivered March 29, 1933.
Attempt at Burglary — Indictment.
Indictment for attempt at burglary failing to allege that appellant attempted to break and enter the house with intent to fraudulently take therefrom corporeal personal property from another's possession, held defective.
Appeal from the District Court of Taylor County. Tried below before the Hon. M. S. Long, Judge.
Appeal from a conviction for attempt at burglary; penalty, confinement in the penitentiary for two years.
Reversed, and prosecution dismissed.
The opinion states the case.
Martin Shipman, of Abilene, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for attempt at burglary; punishment, two years in the penitentiary.
For two reasons we are compelled to hold the indictment in this case bad. Same contains no averment of the fact that appellant attempted to enter the store with the fraudulent intent to take therefrom, etc. That an indictment charging the offense herein involved must contain the allegation of such fraudulent intent is affirmed in Newman v. State, 113 Tex. Crim. 517.
We further note that said indictment does not allege that appellant attempted to break and enter the house with the intent to fraudulently take therefrom corporeal personal property therein being and belonging to J. T. Leeson, — from the possession of said Leeson, etc. There should be an allegation in the indictment that the property was then in the possession of Leeson and that appellant intended to take it from such possession.
For the defects mentioned, the judgment must be reversed and the prosecution ordered dismissed.
Judgment reversed and prosecution dismissed.