Weaver v. State, 18923.
| Decision Date | 07 April 1937 |
| Docket Number | No. 18923.,18923. |
| Citation | 103 S.W.2d 974 |
| Parties | WEAVER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Johnson County; O. B. McPherson, Judge.
D. C. Weaver was convicted of burglary, and he appeals.
Reversed and dismissed.
Penn J. Jackson, of Cleburne, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
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, 118 Tex.Cr.R. 71, 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. vol. 7, p. 820, § 68, and cases cited.
Because of the defect pointed out in the indictment, the judgment is reversed and the prosecution ordered dismissed.
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Ex parte Millard
...code. Alexander v. State, 126 Tex.Cr.R. 495, 72 S.W.2d 1073. See also, Ex parte Valdez, Tex.Cr.App., 550 S.W.2d 88; Weaver v. State, 132 Tex.Cr.R. 253, 103 S.W.2d 974; Rodriguez v. State, 128 Tex.Cr.R. 262, 80 S.W.2d 988. We hold that the indictment for attempted burglary in cause number C-......