
    BROWN v. STATE.
    (No. 7888.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1923.)
    1. Indictment and information <&wkey;!9l(5) — Conviction of theft by false pretext under ordinary indictment for “theft” held proper.
    Under an' ordinary indictment for theft, a conviction may be had of theft by false pretext, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 772, subd. 6, providing that theft is an offense including different degrees, and includes qll unlawful acquisitions of personal property.
    [Ed. Note — For other definitions, see Words and Phrases; First and Second Series, Theft.]
    2. False pretenses <&wkey;il2 — Proof of theft by false pretense must show actual appropriation by thief.
    In'prosecuting one for theft by false pretense, under an indictment charging ordinary theft, the proof must show an actual appropriation by the alleged thief.
    3. False pretenses <§=>27, 34 — Indictment for theft by false pretense held fatally defective.
    An indictment for theft by false pretense which attempted to set out those acts constituting theft as defined in Vernon’s Ann. Pen. Code 1916, art. 1332, was fatally defective for failure to allege both the intent to deprive the owner of the alleged stolen property or its value, and that the property was appropriated by the taker.
    <gs>For other cases see same topic and KEY-N UMBER in all ICey-Numbered Digests and Indexes ’
    Appeal from District Court, Harrison County ; P. O. Beard, Judge.
    Caleb Brown was convicted of theft, and he appeals.
    Reversed and remanded.
    H. T. Lyttleton and Matt Cramer, both of Marshall, for appellant.
    . Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted, in the district court of Harrison county, of theft of the value of more than $50, and his punishment fixed at two years in the penitentiary.

The indictment contained four counts, the first three of which were expressly abandoned in the charge and the jury’s consideration limited to the fourth. Our Assistant Attorney General confesses error herein, because of the fact that said fourth count omits certain requisites of an indictment charging theft by means of false pretense; same being the character of the theft sought to be charged therein.

It is well settled that, under an ordinary indictment for theft, a conviction may be had of theft by false pretext. See authorities cited under article 772, Vernon’s C. C. P., subd. 6; and the proof in such case must show an actual appropriation by the alleged thief. Hernandez v. State, 20 Tex. App. 151; Porter v. State, 23 Tex. App. 295, 4 S. W. 889; Rundell v. State, 90 Tex. Cr. R. 410, 235 S. W. 908. But when, as in the instant case, there is an attempt to set out in the indictment those acts which would constitute theft as defined in article 1332, P. C., there should appear two allegations in order to make the indictment good, which are wanting in said fourth count of the indictment under consideration, viz. an allegation of an intent on the part of the accused to deprive the owner of the alleged stolen property or of the value of same (Williams v. State, 12 Tex. App. 397; Tallant v. State, 14 Tex. App. 234; Peralto v. State, 17 Tex. App. 578; Moore v. State, 74 Tex. Cr. R. 66, 166

S.W. 1153), and also an allegation that the property was appropriated by the taker (Price v. State, 49 Tex. Cr. R. 131, 91 S. W. 571). Our Assistant Attorney General is correct. The indictment is fatally defective.

The judgment is reversed, and the cause remanded.  