
    FOX v. STATE.
    (Court of Criminal Appeals of Texas.
    March 15, 1911.)
    Burglary (§ 18*) — Indictment—Sufficiency —Consent of Owner.
    An indictment for burglary, alleging that the defendant broke and entered a house with fraudulent intent to take from said house corporeal property therein being and belonging to a designated owner, and to appropriate the same to her own use, is insufficient, as it contains no allegation that the stolen goods were taken without the consent of the owner.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 36; Dec. Dig. § 18.*]
    Appeal from District Court, Jackson County; John M. Green, Judge. '
    Alice Fox was convicted of burglary, and she appeals.
    Reversed and remanded.
    C. E. Lane, Asst* Atty. Gen., for the State.
   HARPER, J.

The appellant was placed on trial under an indictment ■ containing two counts; one charging burglary in the daytime, and the other burglary.at night. The court in his charge submitted the case on both counts. The jury returned a verdict of guilty, assessing the punishment at two years’ confinement in the state penitentiary. This penalty is applicable only to the count charging burglary in the daytime.

Upon an inspection of the indictment, we •find that this count does not contain an al- • legation that the stolen goods were taken •without the consent of the owner, only alleging that appellant did break and enter •the house “with the fraudulent intent of her, the said Alice Fox, to take from said house corporeal property therein being and belonging to the said George Green, the owner • of said property, of the value thereof, and to appropriate the same to the use and bene•fit of her, 'the said Alice Fox.” Theft is defined in the statute, and the indictment does -not allege the elements. Taylor v. State, 23 Tex. App. 640, 5 S. W. 141; and authorities there cited.

It is useless to discuss the other errors -assigned.

The judgment is reversed, and the cause .is remanded.  