In his motion for rehearing appellant raises a matter not heretofore raised nor called to our attention, and which escaped us. The indictment herein charging an attempt to commit burglary, fails to allege that appellant intended, in attempting to break and enter the house in question, to "fraudulently" take therefrom corporeal personal property therein belonging, etc. In other words, that the indictment omits the necessary allegation that appellant intended to fraudulently take the property in the house. The matter has been recently before this court and there discussed, and an indictment of this kind held bad. See Newman v. State,113 Tex. Crim. 517, 23 S.W.2d 367.
The indictment being fatally defective, appellant's motion must be sustained, and the judgment of affirmance will be set aside, and the cause will now be reversed, and because of the fault of the indictment ordered dismissed.
Reversed, and indictment ordered dismissed.