
    Wilbur Brian v. The State.
    No. 13258.
    Delivered April 16, 1930.
    Reported in 27 S. W. (2d) 197.
    The opinion states the case.
    
      Harris, Harris & Sedberry of San Angelo, for appellant.
    
      A. A. Dawson, State’s Attorney, of Austin, for the State.
   LATTIMORE, Judge.

Conviction is for misdemeanor theft; punishment fixed at a fine of twenty-five dollars.

Without giving consideration to the facts, we note that the complaint herein is fatally defective in two particulars, viz.: That it does not allege that the property was fraudulently taken from the possession of the owner; nor does it allege that the property was taken without the consent of said owner. Both of these are material averments. It might be further observed that the information as originally filed was regarded apparently as insufficient, and thereafter an amended information was filed. Neither the original information nor the amendment allege that the property was fraudulently taken from the possession of the owner; nor is there an averment therein that the property was taken in the county of the forum. We might, in this connection, also call attention to the fact that the punishment inflicted is not one allowed by law. One convicted for a misdemeanor theft, where the value of the property taken exceeds $5.00, Acts Reg. Ses. 40th Leg., p. 232, Chap. 157, must be punished by imprisonment in the county jail in any event for some period of time. The punishment attempted to be given in this case was by a fine only.

For the errors above noted the judgment will be reversed and the prosecution ordered dismissed.

Reversed and dismissed.  