54 S.W.2d 119


RHODES
v.
STATE.


No. 15635.


Court of Criminal Appeals of Texas.


November 9, 1932.

        Commissioner's Decision.

        Appeal from District Court, Freestone County; Lex Smith, Judge.

        Fred Rhodes was convicted of theft of hogs, and he appeals.

        Reversed and prosecution ordered dismissed.

        P. O. French, of Fairfield, for appellant.

        Lloyd W. Davidson, State's Atty., of Austin, for the State.

        CHRISTIAN, J.

        The offense is theft of hogs; the punishment, confinement in the penitentiary for two 
years.

        The indictment alleges that appellant "did then and there unlawfully take nine hogs," 
etc., omitting the word "fraudulently." The use of the word "fraudulently" is 
indispensable in charging theft under our statute (Pen. Code 1925, art. 1410). Haney v. 
State, 117 Tex. Cr. R. 564, 37 S.W.(2d) 746; Phillips v. State, 89 Tex. Cr. R. 483, 231 S. 
W. 400, 401, and authorities cited. In Phillips v. State, supra, it was held that an 
allegation that the appellant "did unlawfully take, steal, and carry away" was not 
equivalent to an averment that he "did then and there fraudulently take," etc.

        The judgment is reversed and the prosecution ordered dismissed.

        PER CURIAM.

        The foregoing opinion of the Commission of Appeals has been examined by the 
judges of the Court of Criminal Appeals and approved by the court.

        HAWKINS, J., not sitting.