The appellant was placed on trial under an indictment containing two counts, one charging burglary in the daytime and the other burglary at night. The court in his charge submitted the case on both counts. The jury returned a verdict of guilty, assessing the punishment at two years confinement in the State penitentiary. This penalty is applicable only to the count charging burglary in the daytime.
Upon an inspection of the indictment, we find that this count does not contain an allegation that the stolen goods were taken without the consent of the owner, only alleging that appellant did break and enter the house "with the fraudulent intent of her, the said Alice Fox, to take from said house corporeal property therein being and belonging to the said George Green, the owner of said property, of the value thereof, and to appropriate the same to the use and benefit of her, the said Alice Fox." Theft is defined in the statute, and the indictment does not allege the elements. Taylor v. State, 23 Texas Crim. App., 639, and authorities there cited.
It is useless to discuss the other errors assigned.
The judgment is reversed and the cause is remanded.
Reversed and remanded.