Moore v. State

• Decision Date: 06 May 1914
• Docket Number: (No. 3123.)
• Citation: 166 S.W. 1153
• Parties: MOORE v. STATE.
• Court: Texas Court of Criminal Appeals

166 S.W. 1153

MOORE v. STATE.

(No. 3123.)

Court of Criminal Appeals of Texas.

May 6, 1914.

Appeal from District Court, Hall County; J. A. Nabers, Judge.

Woodward Moore was convicted of theft, and he appeals. Reversed, and cause dismissed.

J. M. Elliott, of Memphis, and Fires & Diggs, of Childress, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted for the theft of $210.

On this appeal he presents but one single question — the validity of the indictment. Our statute is: "Theft is the fraudulent taking of corporeal personal property belonging to another from his possession * * * without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking." Pen. Code 1911, art. 1329. The indictment in this case, after the necessary preliminary allegations, avers that Woodward Moore, "did then and there fraudulently take $210, * * * the same being the corporeal personal property of and belonging to Homer Blum, from the possession of the said Homer Blum, without the consent of the said Homer Blum, with the intent to appropriate it to the use and benefit of him, the said Woodward Moore." It will be seen by this that the indictment omits one of the requisites of this offense, and one of the requisites of the indictment, to wit, "With intent to deprive the owner of the value of the same." There can be no question, from the statute above quoted, and the many decisions of this court uniformly so holding, that the indictment is fatally defective because of the omission above shown. We take it that this must have been an inadvertency by the pleader. There are no other words in the indictment supplying this necessary requisite, which was left out.

We must therefore reverse and dismiss this cause.