It is alleged in the indictment that the defendant “ did unlawfully and feloniously take,” etc., the horse. It is not alleged that the taking is fraudulent. This indictment would be sufficient under the decision .in Musquez v. The State, 41 Texas, 226, but that decision was discussed and its correctness questioned by this court in Muldrew v. The State, 12 Texas Ct. App., 617.
We are of the opinion that the reasoning in the Muldrew case, and the authorities cited in support of the opinion in that case, clearly show that in an indictment for theft the talcing must be alleged to have beenfraudulent. This word “fraudulent” is used in the statute in defining theft, and undér that statute there can be no theft unless there be a fraudulent taking. That is the very gist of the offense. The words “ unlawfully and feloniously ” cannot supply its place in the indictment.
At common law these words would have sufficed, but they are not used in our Code definition of theft, and when used in an indictment for theft signify nothing. We overrule the decision in Musquez v. The State, supra, upon this point, and hold that the indictment in this case is fatally defective because it does not allege that the taking of the horse was fraudulent; and because of this defect the judgment is reversed and the prosecution is dismissed.
Reversed and dismissed.
[Opinion delivered May 16, 1885.]