Powell v. State

243 S.W.2d 586, 156 Tex. Crim. 451, 1951 Tex. Crim. App. LEXIS 1636

Opinion

MORRISON, Judge.

The offense is wilfully burning grass not his own, as denounced by Article 1388b, Penal Code; the punishment, a fine of $500.00.

Our able State’s Attorney has confessed error herein because the indictment fails to allege the requisite elements of the offense. Nowhere in the indictment do we find the allegation that the grass in question was “on lands of which he is not in possession or control at the time of setting such fire.”

We are cited Barker v. State, 140 Tex. Crim. R. 580, 146 S. W. (2d) 761, involving the same offense, wherein we dismissed the prosecution because of the absence in the indictment of the allegation that the crime was committed “so as to cause loss or injury to another”.

All requisite elements of an offense denounced by the legislature must appear in the indictment.

Because of the defect in the indictment, the judgment is reversed and the prosecution ordered dismissed.