(dissenting).
The majority holds that the indictment for theft is fundamentally defective because it does not allege that Reynolds exercised control over the property “without the owner’s effective consent.” There was no exception or motion to quash the indictment. Appellant and his attorney knew he was charged with theft and neither has to this day claimed they did not have notice of what he had to defend against.
The indictment is drafted in broader language than the statute but without consent is included in the allegations. It alleges that Reynolds did unlawfully exercise control over the property of the owner and that the “Defendant” stole the property “from the complainant (the owner).” A layman or anyone else can readily see from the reading of the charging part of the indictment that Reynolds stole the property which includes lack of consent. One cannot steal with the consent of the owner.
The new Penal Code was drafted with the intent to eliminate many of the archaic practices which had become entrenched in our law and which served no useful legal purpose. In Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975), this Court recognized that the new Penal Code altered in some way the pleading requirements in burglary. There the Court stated:
“ . . . Under the definitions of burglary and theft contained in the V.T. C.A., Penal Code, effective January 1, 1974, supra, although the proof will involve the necessity of establishing the intent to commit the offense of theft (Sections 31.02 and 31.03, V.T.C.A., Penal Code), the constituent elements of the particular theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft.”
Both the “technical” meaning and “common usage” of the term “steal” carry with their use “without the owner’s effective consent.” See Baldwin v. State, 538 S.W.2d 109 (T’ex.Cr.App.1976), where this Court held that the indictment which charged the accused “ . . . did then and there unlawfully, knowingly and intentionally steal a Master Charge credit card belonging to and from Brenda White” was sufficient to charge an offense of credit card abuse and that theft did not have to be defined. In the Baldwin case as in the present case there was no motion to quash the indictment.
This Court should not hold the indictment fundamentally defective.
OPINION