
    TODER v. STATE.
    (No. 9252.)
    (Court of Criminal Appeals of Texas.
    March 11, 1925.).
    1. Burglary &wkey;>!9 — Indictment, failing to allege intent to take from burglarized house corporeal personal property without consent of alleged owner held fatally defective.
    Indictment, failing to' allege intention of accused in burglary of house to take therefrom corporeal personal property without consent of alleged owner, held fatally defective.
    2. Criminal law <&wkey;1044 — Conviction on fundamentally defective indictment requires reversal, notwithstanding absence of motion to quash or In arrest of judgment.
    Court of Criminal Appeals will not approve judgment based upon fundamentally defective indictment, notwithstanding record shows no motion to quash or motion in arrest of judgment.
    
      Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Sam Toder was convicted of burglary, and be appeals.
    Reversed; and prosecution ordered dismissed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Harris county of burglary, and his punishment fixed at two years in the penitentiary.

The record is before us without statement of facts or bills of exception. An inspection of the indictment, however, reveals that it fails to allege that it was the intention of the appellant in the burglary of said house to take therefrom corporeal personal property “without the consent” of the alleged owner. This is held in Treadwell v. State, 16 Tex. App. 644, and Fox v. State, 61 Tex. Cr. R. 544, 135 S. W. 570, to be a necessary allegation. The indictment is fatally defective and, although no motion to quash or in arrest of judgment appears in the record, it is incumbent upon this court to decline to approve a judgment based upon a fundamentally defective indictment.

The judgment of the trial court will be reversed, and the prosecution ordered dismissed. 
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