Taylor v. State , 18 Tex. Ct. App. 489 ( 1885 )

Wills on, Judge.

When an indictment for theft alleges the ownership of the property in two or more persons, it must negative the consent to the taking of each alleged owner. An allegation negativing their joint consent will not be sufficient, because if either of the owners consented to the taking there would be no theft. In such case the taking would not be wrongful. (Penal Code, art. 727; Powell v. The State, 11 Texas Ct. App., 401; Morrison v. The State, 17 Texas Ct. App., 34.)

In this case the indictment alleges that E. S. Wood and Poley Reed were the owners of the property taken, and that it was taken “ without the consent of the said E. S. Wood and the said Poley Reed.” The ownership alleged is a joint one, and the want of consent, as alleged, is the want of the joint consent only of the owners. It should have expressly negatived the consent of each of the owners. While the State under this allegation would be permitted to prove that the owners jointly did not consent to the taking of the property, it would not be permitted to prove that separately they did not so consent, because it is not so alleged; and yet without such proof the crime of theft could not be established.

We think the indictment is fatally defective, and because the court erred in overruling the exceptions to it, the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

[Opinion delivered June 20, 1885.]