
    DE PENA v. STATE.
    No. 12815.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1929.
    State’s Rehearing Denied March 19, 1930.
    . M. M: Winningham and M. Y. Ward, both, of El Paso, for appellant.
    
      W. S. Berkshire, Dist. Atty., and J. D. Ras-berry, Asst. Dist. Atty., both, of El Paso, and A. A. Dawson, State’s Atty., of Austin, for the State.
   LATT1MORE, J.

Conviction for murder;' punishment, death.

It is charged in the indictment herein that appellant “did then and there voluntarily kill Alfred o Acana by shooting him with a pistol, against the peace and dignity of the State.” An indictment for murder which does not not charge that same was committed with malice aforethought will not sustain a judgment of conviction carrying with it a penalty greater than five years in the penitentiary. Swilley v. State (Tex. Or. App.) 25 S.W.(2d) 1098, opinion December 11, 1929. The indictment in the instant case fails to charge that the murder was committed with malice afores-thought.

Eor the reason mentioned, the judgment will be reversed and the cause remanded.

On Motion for Rehearing.

We have carefully examined the able brief of the district attorney of El Paso county, and regret oim inability to agree with the contentions, therein set forth. The matter has been investigated further, and our views will he found expressed in the majority opinion on rehearing in the ease of Swilley v. State, this day handed down.

The state’s motion for rehearing will be overruled.  