French v. State , 531 S.W.2d 613 ( 1975 )

531 S.W.2d 613 (1975)

Oscar FRENCH, Jr., Appellant,
v.
The STATE of Texas, Appellee.

No. 50475.

Court of Criminal Appeals of Texas.

November 5, 1975.

Gerald K. Payte, Houston, for appellant.

Carol S. Vance, Dist. Atty. and James C. Brough, Henry Oncken, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of robbery by assault with firearms. The punishment was assessed at ten (10) years.

An examination of the indictment in the instant case reveals that it contains the same fundamental defect as that found in Lucero v. State, 502 S.W.2d 128 (Tex.Cr. App.1973) (Case One) and Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App., delivered July 9, 1975), in that it fails to allege "to whom the property allegedly taken belonged."

For this reason, the judgment is reversed and the prosecution ordered dismissed.

DOUGLAS, Judge (dissenting).

The indictment has been held fundamentally defective because ownership was not alleged. Ownership was not an element of the offense of robbery under Article 1408, V.A.P.C. (1925), which provides that robbery is committed by taking property from the possession of the injured person. Possession was alleged in this. See the dissenting opinion in Bouie v. State, 528 S.W.2d 587 (1975).

The judgment should be affirmed.