Cunningham v. State

249 S.W.2d 203

Opinion

MORRISON, Judge.

The offense is burglary; the punishment, 5 years.

Our able State’s Attorney has called our attention to two fatal defects in the indictment herein.

Judge Davidson, in Robinson v. State, 71 Tex.Cr.R. 561, 160 S.W. 456, 457, said:

“It is a familiar rule laid down by the authorities that where the burglary is charged to have been committed with the intent to commit some specific crime — and it must be a felony or theft — the allegations of the crime intended to be committed, or actually committed, must be charged in all of its elements.”

The instant indictment charges that the burglary was committed with the intent to commit the crime of theft, yet it fails to give the name of the person from whose possession the property was taken, and further fails to allege the lack of consent of such person.

The judgment is reversed and the prosecution dismissed.