
    D. C. Weaver v. The State.
    No. 18923.
    Delivered April 7, 1937.
    The opinion states the case.
    
      Penn J. Jackson, of Cleburne, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   MORROW, Presiding Judge.

— The offense is burglary; penalty assessed at confinement in the penitentiary for two years.

The indictment contains an averment that the house belonged to one Cecil Logan. It also alleged that it was the intent of the appellant to fraudulently take, steal and carry away the property from said house belonging to the owner. The indictment is attacked upon the ground that it fails to contain an averment that the property was taken “from the possession of” the owner. It is subject to the same criticism that caused the reversal of the case of Garrett v. State, 43 S. W. (2d) 120. That is to say, the pleading did not charge that the property was taken from the possession of the owner. See Tex. Jur., Yol. 7, page 820, sec. 68, and cases cited.

Because of the defect pointed out in the indictment the judgment is reversed and the prosecution ordered dismissed.

Reversed and prosecution ordered dismissed.  