dissenting.
I cannot agree to the affirmance of this case for two reasons: (a) The indictment is fatally defective in that it fails to charge a violation of the statute under which the prosecution was brought and (b) the statute is so vague, uncertain, and ambiguous as not to create a criminal offense and is therefore void.
The statute under which this prosecution is brought is as follows:
“Any person who shall enter upon any premises or gas pipe-line right of ways with the intent to steal or carry away without the consent of the owner, or with intent to aid or assist in stealing or so carrying away any mercury from and out of any gas meter or any device by or through which the flow, movement, or pressure of gas is measured or regulated, or which is capable of being used to measure, regulate or control the movement of gas, shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for not less than one (1) year nor more than five (5) years, or by confinement in the county jail for not less than ninety (90) days nor more than two hundred (200) days, or shall be fined not less than One Hundred ($100) nor more than Five Hundred Dollars ($500), or by both such fine and imprisonment.
“ ‘Gas’ as that term is used herein means natural gas or artificial gas or a combination or mixture of any such gases.”
The indictment in this case, in the charging portion thereof, reads as follows:
“ * * * did then and there unlawfully enter upon premises then and there occupied and controlled by Charles W. Ward with the intent then and there to take mercury from and out of a gas meter then and there located upon said premises without the consent of the said Charles W. Ward and with the intent then and there to deprive the said Charles W. Ward of the *565value of said mercury and to appropriate the same to the use and benefit of him, the said Roy Lee Sellers * * * .” (Emphasis, supplied.)
Nowhere therein is it alleged that the entry upon the premises was with the fraudulent intent to steal or commit the crime of theft of the mercury. Nowhere therein is it alleged that the mercury intended to be taken was the property of or in the possession of Ward or any other person. There is an entire absence of any allegation that Ward could give or withhold consent to the taking of the mercury or how he might or would be injured by being deprived of the mercury.
If the state was relying upon the statute as making it unlawful for one to enter upon the premises of another for the purpose of committing theft of mercury from a gas meter, then, of necessity, the indictment must allege the essentials which constituted the unlawful act intended, among which essentials would be the fraudulent taking, the possession and ownership of the mercury, and the want of consent of the owner to the taking.
The indictment contains none of these essentials and cannot therefore be held to be sufficient to allege that theft of the mercury was intended by the entry. Branch’s P.C., Sections 2425, 2433, and 2451.
The indictment alleges only that the entry was made with the intent to “take” — and this, without regard to whether such taking was or would be lawful or unlawful. The indictment not' only fails to charge a violation of the statute mentioned but it also fails to charge a violation of any other law.
Being fatally defective, the indictment does not and can not support this conviction.
A valid indictment is necessary to a valid conviction, without which the latter cannot exist.
Now, as to the statute, itself, the first peculiar and outstanding feature thereof is that it punishes and makes unlawful the intent to do a lawful act — or, at least, an act not unlawful under the law. In this connection it will be noted that the act attempted to be made unlawful by the statute consists of two elements. These are: (a) the entry on the premises, and (b) the intent to steal mercury from a gas meter.
*566The concurrence of these two elements must exist in order for the statute to be violated.
The word “steal,” as used in the act, does not and cannot have the meaning given to that term under the law of theft (Art. 1425, P.C.), wherein it is provided that the word “steal,” as used in the Penal Code, includes the acquiring of property by theft, because, under the instant statute, the legislature saw fit to give to the word “steal” a special meaning and one quite different from that given under the general laws of theft.
As applicable to the prosecution, here, the word “steal” means “to take wrongfully and without just claim of authority.”
The fraudulent intent necessary to constitute the crime of theft is absent in this case, as are, also, all the other essentials constituting the crime of theft.
So, then, there is no escape from the conclusion that neither by the act, itself, nor by any other law of this state is it made unlawful “to take wrongfully and without just claim of authority” any mercury from a gas meter. If the taking was rightful as distinguished from wrongful, or under a just claim of authority as distinguished from without just claim of authority —whatever be the meaning of those words as used in the statute —no unlawful act has been committed.
It is apparent, therefore, that the act does not prohibit the taking of the mercury but, to the contrary, the only limitation upon the taking of the mercury is whether it was done rightfully or wrongfully, or with or without just claim of authority.
Therefore, for the act of taking the mercury to be unlawful it is and would be necessary to adjudicate the title to the mercury as in a civil action and not a criminal case.
So we have a criminal statute which makes unlawful the intent to do an act which is not unlawful, itself, and which becomes so only after the title to the property has been adjudicated.
The statute is absolutely void for uncertainty and ambiguity.
My brethren pass over the sufficiency of the indictment and the validity of the statute because the appellant’s counsel did not raise these matters in the trial court or in this court.
*567If the time has come when this court, by its judgment, permits an accused to go to the penitentiary upon an invalid indictment and a void statute because his counsel did not so contend in the trial court or in this court, I want no part of it.
It is the appellant who is going to the penitentiary under the mandate of this court, and no one else.
If the indictment is invalid, or the statute void, we ought to say so, without hesitation.
I respectfully dissent.