By some means we overlooked appellant's motion in arrest of judgment which is now called to our attention on this rehearing. It appears therefrom that appellant urged, in arrest of judgment, the insufficiency of the complaint and information against him herein, in that same failed to allege that the property charged to have been stolen was "fraudulently" taken. An examination of said complaint and information makes it evident that the complaint is well founded. This is a matter of substance and not mere form, and may be raised by motion in arrest of judgment, or in this court for the first time. Baldwin v. State,76 Tex. Crim. 499, 175 S.W. Rep., 701; Branch's Ann. P.C., Sec. 2425; Vernon's P.C., p. 832.
Because of the failure of said pleadings to contain this necessary allegation, the motion for rehearing must be granted, the judgment reversed and the prosecution ordered dismissed.
Dismissed.