
    RYAN v. STATE.
    (No. 3528.)
    (Court of Criminal Appeals of Texas.
    April 28, 1915.)
    Larceny <®^-33 — Elements oe Offense — Indictment — Requisites.
    An indictment for larceny which does not allege from whose possession the stolen property was taken is fatally defective.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 93; Dee. Dig. <®=^33.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Cleveland Ryan was convicted of theft, and he appeals.
    Reversed and prosecution ordered dismissed.
    Campbell & Campbell, of Livingston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of hogs, and his punishment assessed at two years’ confinement in the state xieniten-tiary.

The indictment in this case charged that;

Appellant “did unlawfully and fraudulently take two head of hogs, the same being the corporeal personal property of Guy Sutton, without the consent of the said Guy Sutton, and with the intent to deprive the said Guy Sutton of the value of the same, and to appropriate it to the use and benefit of him, the said Cleveland Ryan, against the peace and dignity of the state.’’

No motion was made to quash the indictment in the trial court, and the question of the sufficiency of the indictment is raised for the first time in this court; it being contended that the indictment alleges possession in no one, and does not allege that the hogs were taken from the possession of Guy Sutton or any other person. It appears to be the. unbroken rule of decision in this court that an allegation of the possession from whom the stolen property was taken is necessary ; the statutory definition of theft makes it a necessary ingredient, and such allegation must be proved as made. Littleton v. State, 20 Tex. App. 168; Case v. State, 12 Tex. App. 228; Hall v. State, 22 Tex. App. 632, 3 S. W. 338; Watts v. State, 6 Tex. App. 263; Gadson v. State, 36 Tex. 350; and other cases cited in section 1483, White’s Ann. renal Code, and section 785, Branch’s Grim. Law.

There being no allegation of possession in any one the indictment is invalid, and the judgment is reversed, and the prosecution is ordered dismissed.  