Alexander v. State

• Decision Date: 20 June 1934
• Docket Number: No. 16739.,16739.
• Parties: ALEXANDER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1073

72 S.W.2d 1073

ALEXANDER v. STATE.

No. 16739.

Court of Criminal Appeals of Texas.

June 20, 1934.

Appeal from District Court, Brown County; E. J. Miller, Judge.

Dee Alexander was convicted of burglary, and he appeals.

Reversed and remanded.

E. M. Davis, of Brownwood, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

Burglary is the offense; penalty assessed at confinement in the penitentiary for five years.

The indictment contains two counts, the first of which is based upon article 1391, and the second count upon article 1390, P. C., 1925. The conviction is upon the first count, in which it is charged in effect that appellant unlawfully entered the house of J. A. Graham, "the same being the private residence of J. A. Graham, the same then and there being a house occupied and actually used by the said J. A. Graham as a place of residence, with the intent then and there to take from the said house corporeal personal property therein being and belonging to the said J. A. Graham, without his consent and with the intent to deprive the said J. A. Graham, the owner of said corporeal personal property, of the value thereof and to appropriate the same to the use and benefit of * * * the said Dee Alexander."

The count mentioned obviously is an intent to charge the accused with making the entry for the purpose of committing the crime of theft.

There was filed in the trial court a motion in arrest of judgment based upon the claim that the count in the indictment upon which the conviction rests was inadequate to charge the offense of which appellant was convicted, namely, of breaking into and entering a private residence at night with the intent to commit theft. The motion calls specific attention to the fact that in describing the offense in the first count, of the indictment, there was a failure to set out the elements of the crime of theft. To render an indictment for the crime of theft sufficient, it is essential that it charge that the intent of the offender was to fraudulently take the property. Likewise, in charging the offense of burglary where the entry is alleged to have been for the purpose of committing the crime of theft, the use of the word "fraudulent" or "fraudulently" as descriptive of the intent of the offender has, throughout the history of the jurisprudence of this state, been regarded as essential. See Treadwell v. State, 16 Tex. App. 644; Fox v. State, 61 Tex. Cr. R. 544, 135 S. W. 570; Reed v. State, 14 Tex. App. 662; Taylor v. State, 23 Tex. App. 639, 5 S. W. 141. See, also, Tex. Jur. vol. 7, p. 811, § 60, and precedents cited. From section 60, supra, we quote as follows: "The essential element of the crime of theft, as defined by statute, is the fraudulent taking of corporeal personal property, and an allegation of a fraudulent taking is indispensable."

Under the statute, the offense of burglary consists of committing a felony or the crime of theft. All...