R. A. Jester v. The State, 26 Tex. Ct. App. 369

Willson, Judge. It appears from the record that the defendant was tried by a jury of six men. Such trial was not in accordance with law, and the conviction must be set aside. (Const., art. 5, sec. 13; Code Crim. Proc., art. 595; Rich v. The State, 1 Texas Ct. App., 206; Huebner v. The State, 3 Texas Ct. App., 458; Marks v. The State, 10 Texas Ct. App., 334.) This error in the conviction is confessed by the Assistant Attorney General. In the indictment, as it appears in the record, there is a fatal defect, in so far as it undertakes to charge burglary.

It alleges that the defendant “then and there, by force, break and enter a house,” etc., omitting the essential word “did.” If guch omission be in tbe original indictment, a conviction for said offense can not be sustained upon it. (Walker v. The State, 9 Texas Ct. App., 177; Moore v. The State, 7 Texas Ct. App., 42.) The indictment, however, is a good one for the offense of theft. The judgment is reversed and the cause is remanded. Opinion delivered November 3, 1888. Reversed and remanded,