The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.
The indictment alleges that appellant "did then and there unlawfully take one head of cattle," etc., omitting the word "fraudulently". The use of the word "fraudulently" is indispensable in charging theft under our statute. Byrd v. State, 89 Tex.Crim. Rep., 231 S.W. 399; Prim v. State,32 Tex. 158; Conner v. State, 6 Texas App., 455; Young v. State, 12 Texas App., 614; Muldrew v. State, 12 Texas App., 617; Sloan v. State, 18 Texas App., 225; Ortis v. State, 18 Texas App., 282; Ware v. State, 19 Texas App., 13; Chance v. State, 27 Texas App., 441, 11 S.W. 457; Doxey v. State (Tex. Sup.), 12 S.W. 412; Watt v. State, 61 Tex.Crim. Rep.,136 S.W. 56; Baldwin v. State, 76 Tex.Crim. Rep.,175 S.W. 701; Newman v. State, 113 Tex.Crim. Rep., 23 S.W.2d 367. In Byrd v. State, supra, it was held that an allegation that the appellant "did unlawfully take, steal and carry away" was not equivalent to an averment that he "did then and there fraudulently take," etc. *Page 565
The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON STATE'S MOTION FOR REHEARING.