OPINION ON STATE’S MOTION FOR REHEARING
ROBERTS, Judge.On original submission we held that the burglary indictment in this case was fundamentally defective. The indictment, which is set out in the majority opinion on original submission, failed to allege that the entry was made with the intent to commit a felony or theft, a necessary element of the offense of burglary under V.T.C.A., Penal Code, Sec. 30.02(a)(1) or (a)(2). Faulks v. State, 528 S.W.2d 607 (Tex.Cr.App.1975).
We again set out the indictment, as follows:
“IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS, the Grand Jurors, good and lawful men of the County of Dallas, duly elected, tried, empaneled sworn and charged to *272inquire of offenses committed within the body of said Dallas County, upon their oaths do present in and to the 203RD JUDICIAL District Court,_of Dallas, County, at the JANUARY Term, A.D., 1974, that one,
JAMES EARL CANNON
hereinafter styled Defendant, on or about the 23 day of April, in the year of our Lord One Thousand Nine Hundred and 74 in the County and State aforesaid, did unlawfully, then and there, with intent to exercise control over the property of Robert N. Smith, enter a habitation without the effective consent of Robert N. Smith, the said owner.”
Of course, an indictment for burglary need not allege that the entry was with the intent to commit theft or a named felony, provided that it alleges instead the elements of the felony or theft in the indictment. See Williams v. State, 505 S.W.2d 838 (Tex.Cr.App.1974); Mitchell v. State, 118 Tex.Cr.R. 77, 37 S.W.2d 1018 (1931). Similarly, it is not necessary to allege the elements of the felony or theft if the indictment states simply that the entry was with the intent to commit theft or a specifically named felony.1 Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975); Vaughn v. State, 530 S.W.2d 558, 562 (Tex.Cr.App.1976) (majority and dissenting opinions).
Since the indictment in this case does not allege that the entry was made with the intent to commit a named felony or theft, the question then becomes whether it sets out the necessary elements of a felony or of theft.
A comparison of the indictment to our theft statute (V.T.C.A., Penal Code, Sec. 31.03) leads to the conclusion that the indictment in this case was an attempt to allege burglary with intent to commit theft, as theft is defined in V.T.C.A., Penal Code, Sec. 31.03(a)(2). Section 31.03 provides in pertinent part as follows:
“(a) A person commits an offense if, with intent to deprive the owner of property:
(1) he obtains the property unlawfully; or
(2) he exercises control over the property, other than real property, unlawfully.
(b) Obtaining or exercising control over property is unlawful if:
(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”2
Our new Penal Code consolidated virtually all theft offenses into a single offense. Section 31.02 of the new Code provides for this consolidation, while subsections (a) and (b) of Section 31.03 define the different ways theft may be committed. A reading of these provisions of Section 31.03 makes it dear that there are four ways to commit theft: (1) by obtaining property without the owner’s effective consent under subsections (a)(1) and (b)(1); (2) by obtaining property from another knowing it to be stolen under subsections (a)(1) and (b)(2); (3) by exercising control over property, other than real property, without the owner’s effective consent under subsections (a)(2) and (b)(1); and (4) by exercising control over property, other than real property, obtained by another, knowing it to be stolen under subsections (a)(2) and (b)(2).
Thus, the offense of theft has four different sets of possible elements:
*273(1) a person
(2) with intent to deprive the owner of property
\o) obtains the property
(4)without the owner’s effective consent;
or
(1) a person
(2) with intent to deprive the owner of property
(3) obtains the property
(4) which is stolen property
(5) from another
(6) knowing it was stolen;
or
(1) a person
(2) with intent to deprive the owner of property
(3) exercises control over the property, other than real property
(4) without the owner’s effective consent;
or
(1) a person
(2) with intent to deprive the owner of property
(3) exercises control over the property, other than real property
(4) which is stolen property
(5) obtained by another
(6) knowing it was stolen.
An indictment for theft which does not allege all of the elements of one of these methods is fundamentally defective, since “Everything should be stated in an indictment which is necessary to be proved.” Art. 21.03, Vernon’s Ann.C.C.P. See also Art. 21.11, V.A.C.C.P., and the authorities cited in the majority and concurring opinions on original submission. It follows that an indictment for burglary with intent to commit theft which fails to state specifically that the entry was with such intent must allege all of the elements of one of these means of committing theft.
The indictment in this case fails to allege an element necessary to every theft allegation: That the appellant acted “with intent to deprive the owner of property.” Without this element the indictment is fundamentally defective under our new Penal Code, and the trial court was without power to proceed to trial. See the majority and concurring opinions on original submission, as well as Art. 21.05, Vernon’s Ann.C.C.P.; see also Martini v. State, 116 Tex.Cr.R. 58, 32 S.W.2d 654 (1930); Rodriguez v. State, 128 Tex.Cr.R. 262, 80 S.W.2d 988 (1935); McCann v. State, 168 Tex.Cr.R. 383, 328 S.W.2d 298 (1959); Worthington v. State, 469 S.W.2d 182 (Tex.Cr.App.1971).
The indictment is also fundamentally defective because it fails to allege how the intended taking was unlawful. As we held on original submission, it does not allege that the intended exercise of control was without the owner’s effective consent, V.T. C.A., Penal Code, Sec. 31.03(b)(1), and it is not enough to allege that the entry was without such consent. As this Court said in Musick v. State, 121 Tex.Cr.R. 616, 618, 51 S.W.2d 715, 716 (1932):
“It is elementary, as well as statutory, that the essential element of theft is that the property be taken not only fraudulently but without the consent of the owner, with the intent to deprive the owner of the value and appropriate the property to the benefit of the taker . In Wharton’s Crim. Law (11th Ed.) vol. 2, p. 1311, Sec. 1094, it is said that the definition of larceny which omits ‘without the consent of the owner’ is now universally conceded to be defective.” (Emphasis added).
We recently reaffirmed this rule in Martinez v. State, 494 S.W.2d 182 (Tex.Cr.App.1973), and see no reason why it should not apply to our new Penal Code. The indictment before us, plainly read, did allege that the entry was without the owner’s effective consent, see V.T.C.A., Penal Code, Sec. 30.-02(a), but failed to allege that the intended exercise of control was without the owner’s consent.
Nor did the indictment allege that the property was stolen or that the appellant knew the property was stolen. Moreover, the indictment did not allege either that the appellant obtained the property from an*274other or that he exercised control over the property, other than real property, obtained by another. These are essential elements of theft under subsection (b)(2), see Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975), and are required to be alleged in an indictment alleging either of the methods of committing theft under this subsection. Art. 21.03, supra.3
Since the indictment failed to allege either method of unlawful taking under V.T. C.A., Penal Code, Sec. 31.03(b), it is fundamentally defective.4 Nor can we agree that the use of the general term “unlawfully” was sufficient to overcome the deficiency. See V.T.C.A., Penal Code, Sec. 1.07(a)(36), and Ham v. State, 118 Tex.Cr.R. 271, 40 S.W.2d 152 (1931).
The State’s motion for rehearing is overruled.
. We again observe that the better practice is to set forth the constituent elements of the intended felony or theft. See Faulks v. State, 528 S.W.2d 607, 609, n. 1 (Tex.Cr.App.1975).
. We observe that subsections (a) and (b) of Section 31.03 were amended by Acts 1975, 64th Leg., p. 914, ch. 342, Sec. 10, eff. Sept. 1, 1975, as follows:
“(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
“(b) Appropriation of property is unlawful if: (1) it is without the owner’s effective consent; or
(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.”
. Compare Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976); delivered November 3, 1976; 2 TCR 57.
. The dissent’s reliance upon Ex Parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1974), is misplaced. This writer wrote for a unanimous Court that although the indictment was “fatally” defective, it was not “void ab initio.” The writer concedes that use of the word “fatally” was not precisely correct; ordinarily, an indictment which is fatally defective is “fundamentally” defective, or void from the outset, and can be attacked at any time. This was not true in Roberts. However, the meaning of Roberts should be clear: An indictment which is defective but not fundamentally so cannot be attacked by means of habeas corpus. Unlike the indictment in Roberts, the indictment in this case utterly fails to allege an offense, is therefore fundamentally defective, and may be attacked on habeas corpus.
The dissent also relies upon Ex Parte Spencer, 171 Tex.Cr.R. 339, 349 S.W.2d 727 (1961), and Ex Parte Merriell, 163 Tex.Cr.R. 534, 294 S.W.2d 400 (1956). Those cases are distinguishable for the reasons stated so cogently by the late Presiding Judge Woodley in Ex Parte Miller, 172 Tex.Cr.R. 590, 360 S.W.2d 879 (1962). There the Court unanimously held that where a charging instrument is void (rather than merely voidable), it may be attacked by habeas corpus. See also American Plant Food Corp. v. State, 508 S.W.2d 598, 603 (Tex.Cr.App.1974).