
    [No. 1894.]
    Riley Ware v. The State.
    Theft.— Indictment for theft must allege that the property was fraudulently taken. Allegation that it was feloniously taken will not suffice.
    Appeal from the District Court of Kerr. Tried below before the Hon. T. M. Paschal.
    The indictment charged the appellant, jointly with one Lawrence Hobbs, with the theft of a horse, the property of Wesley Yivion, in Kerr county, Texas, on the 15th day of April, 1884. The appellant being alone upon trial, he was found guilty, and his punishment was assessed at a term of five years in the penitentiary.
    
      Ho brief for the appellant.
    
      J. H. Burts, Assistant Attorney-General, for the State.
   Willson, Judge.

An indictment for theft, to be sufficient, must allege that the property was fraudulently taken. The allegation that it w as feloniously taken is insufficient. (Sloan v. The State, 18 Texas Ct. App., 225.) In this case, wherein the defendant has been convicted of the theft of a horse, the indictment is fatally defective because it does not allege that the defendant fraudulently took the horse.

The judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

[Opinion delivered October 10, 1885.]  