Fox v. State

HARPER, Judge.

—The appellant was placed on trial under an indictment containing two counts, one charging burglary in the daytime and the other burglary at night. The court in his charge submitted the case on both counts. The jury returned a verdict of guilty, assessing the punishment at two years confinement in the State peni-, tentiary. This penalty is applicable only to the count charging burglary in the daytime.

Upon an inspection of the indictment, we find that this count does not contain an allegation that the stolen goods were taken without the consent of the owner, only alleging that…