
    AROCHA v. STATE.
    (No. 5678.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1920.)
    Larceny <&wkey;2&wkey;lNDicTMENT charging taking WITH INTENT TO APPROPRIATE TO “OWNER’S” USE BAD.
    Taking with intent to appropriate to use or benefit of taker being, under Penal Code 1911, art. 1329, an essential element of theft, and such intent therefore being required by Code Cr. Proc. 1911, art. 454, to be stated in the indictment, it, not doing so, but stating that taking was with intent to'appropriate to use and benefit of the owner, was bad.
    Appeal from District Court, Bexar County; W. W. Walling, Special Judge.
    ' Thomas Arocha was convicted of theft, and appeals.
    Reversed and dismissed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

• The appeal is from a judgment -convicting the appellant of theft. The cow charged to have been stolen belonged to C. E. Williams. In the indictment it is charged that the appellant took the property “with the intent to appropriate said cow to the use and benefit of him, the said C. E. Williams.” An essential element of the crime of theft is that the taking must be “to appropriate it to the use -or benefit of the' person taking.” Penal Code, art. 1329. We have a statute which says:

“Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment.” Code Or. Proc., art. 454.

Construing this statute, this court has held that the intent to appropriate the property to the use or benefit of the taker is an essential allegation in the indictment. Jones v. State, 25 Tex. App. 621, 8 S. W. 801, 8 Am. St. Rep. 449. The case of Lawless v. State, 19 S. W. 677, was one in which the indictment was affected with the identical fault that appears in this one. On the appeal the only question raised was the sufficiency of the indictment. It was correctly held to charge no offense, and the judgment was reversed, and the prosecution ordered dismissed, a result which must befall the instant case. See Branch’s Annotated Texas Penal Code, §§ 2456 and 2457.

The judgment is reversed, and the prosecution dismissed.  