Appellant was convicted of burglary, with intent to commit theft. Omitting the preceding portions of the indictment, it is averred that appellant "did then and there unlawfully, by force, threats and fraud, break and enter a house there situated, and occupied Win. Stonell, without the consent of the said Wm. Stonell," etc. The sufficiency of this indictment was attacked in the lower court, by motion in arrest of judgment, because it failed to ayer that the house was occupied "by" William Stonell. The contention is based upon the omission of the word "by" between the word "occupied" and the name "Wm. Stonell." In cases of burglary, it is necessary to allege the occupancy by some one, of the house broken into; and, unless this has been done, this offense is not averred. Words which are necessary to allege such occupancy, are essential to the certainty necessary in the description of the offense. Such words cannot be supplied by intendment; and, this being so, it necessarily follows that their omission would be fatal to the indictment. Such has been the uniform rule of decision in this State. In State v. Daugherty, 30 Tex. 360, it was held that "where an indictment omits a material word, although it be but a preposition or a helping verb, the court will not, from its knowledge of the language, supply the missing word, so as to supply the probable intention of the grand jury." In Jones v. State, 21 Tex.Crim. App., 349, it was held that the omitted preposition "to," preceding "kill and murder," was fatal to an indictment charging the offense of assault with intent to murder. See, State v. Hutchinson, 26 Tex. 111; Ewing v. State, 1 Tex.Crim. App., 362; Sparks v. State, 35 Tex. 349; Edmonson v. State, 41 Tex. 496; Moore v. State, 7 Tex.Crim. App., 42; State v. Huston, 12 Tex. 245; State v. Toney,13 Tex. 74; Thompson v. State, 15 Tex.Crim. App., 39, 168. Under this line of authorities, the judgment in this case is reversed, and the prosecution ordered dismissed.
Reversed and Dismissed.