
    ALLEN v. STATE.
    No. 12770.
    Court of Criminal Appeals of Texas.
    April 2, 1930.
    Vickers & Campbell, of Lubbock, and Williams & Bell, of Childress, for appellant.
    G. E. Hamilton, Sp. Counsel, of Matador, and A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, fifteen years in the-penitentiary.

The indictment in this case failed to allege that the killing was upon malice aforethought. Punishment assessed was for more than five years. A conviction for a penalty greater than five years cannot be sustained under such indictment. Swilley v. State (Tex. Cr. App.) 25 S.W.(2d) 1098, opinion December 11, 1929.

The judgment will be reversed and the cause remanded, and, if the state desires to inflict a penalty greater than five years, the necessity for a new indictment is suggested.  