Toder v. State
| Decision Date | 11 March 1925 |
| Docket Number | (No. 9252.) |
| Citation | 269 S.W. 1043 |
| Parties | TODER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
Sam Toder was convicted of burglary, and he appeals. Reversed, and prosecution ordered dismissed.
Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.
Appellant was convicted in the criminal district court of Harris county of burglary, and his punishment fixed at two years in the penitentiary.
The record is before us without statement of facts or bills of exception. An inspection of the indictment, however, reveals that it fails to allege that it was the intention of the appellant in the burglary of said house to take therefrom corporeal personal property "without the consent" of the alleged owner. This is held in Treadwell v. State, 16 Tex. App. 644, and Fox v. State, 61 Tex. Cr. R. 544, 135 S. W. 570, to be a necessary allegation. The indictment is fatally defective and, although no motion to quash or in arrest of judgment appears in the record, it is incumbent upon this court to decline to approve a judgment based upon a fundamentally defective indictment.
The judgment of the trial court will be reversed, and the prosecution ordered dismissed.
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Ex parte Valdez, 54737
...of the owner. See Treadwell v. State, 16 Tex.Cr. 643 (1884); Fox v. State, 61 Tex.Cr.R. 544, 135 S.W. 570 (1911); Toder v. State, 99 Tex.Cr.R. 337, 269 S.W. 1043 (1925); cf. Martini v. State, 116 Tex.Cr.R. 58, 32 S.W.2d 654 (1930); Mitchell v. State, 118 Tex.Cr.R. 77, 37 S.W.2d 1018 (1931);......
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Culpepper v. State
...indictment that he intended to take the property in the alleged burglarized house "without the consent of" the owner. Toder v. State, 99 Tex. Cr. R. 337, 269 S. W. 1043. Also the indictment should have alleged that appellant intended to take such property "from the possession such owner. Ro......