Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 347
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1875.] AUSTIN v. THE STATE. 347
Opinion of the Court.
and carried away by the defendant, and that the indictment
does not state the character of the house, whether dwelling,
store or outhouse, from which the property was stolen, embrace
all the grounds relied on for a reversal. It is argued on
behalf of appellant, that the indictment does not charge an
asportation, or taking away of the property from the owner,
Smith. The indictment charged that the defendant " did
"then and there fraudulently take from the possession of
"Robert Smith, and from the house of said Smith, without
"the consent," we are satisfied this is a sufficient charging of
an offense of this character. Article 747 of the Criminal Code,
declares, that " To constitute taking,' it is not necessary that
"the property be removed any distance from the place of tak"
ing; it is sufficient it has been in the possession of the thief,
" though it may not have been out of the presence of the per"son
deprived of it." The omission of the word '" felonious"ly
" from the indictment is not a defect; it is not required
in charging the offense laid in tile indictment; the term
"fraudulently" is the equivalent for feloniously; the Code has
so made it. This point was raised and the question decided
in Calvin v. The State, 25 Texas, 793, where it was said,
" that since the adoption of our Penal Code, the word ' feloni"
onsly' is not indispensable to the validity of an indictment,
" even for a capital felony." In Prim v. The State, 32 Texas,
158, the court held that the word " feloniously " is not necessary
in an indictment for theft, the Code having substituted the
word "'fraudulently." In Cain v. The State, 18 Texas, 389,
where it was held that the word " feloniously" must be averred
the indictment was found and case decided before the
Penal Code went into effect, and in no way applies to the case
at bar. The objection that the indictment fails to allege the
character of house is shown by reference to the article under
which this indictment was found to be unimportant, the
Articles 728 and 729 of Chapter VI. of the Penal Code, respecting
burglary, define a house to be "any building or structure
erected for public or private use, whether property of the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/355/: accessed April 25, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .