
    Otho Buchanan v. State of Mississippi.
    [53 South. 399.]
    Cbiminal Law and Bkoceduee. Murder. Indictment,
    
    An indictment charging that defendant “did then and there wilfully, feloniously, and of his aforethought kill and murder” the decedent, is fatally defective, since it fails to allege malice, the essence of murder.
    From the Circuit court of Covington, county.
    Hon. Bo bert L. Bullard, Judge.
    Buchanan, appellant, was indicted and tried for and convicted of murder and appealed to the supreme court. The indictment, omitting formal parts, charged that defendant “did then and there wilfully, feloniously and of his aforethought hill and murder Bed Hays, a human being.”
    
      JE. L. Dent and G. H. Merrill, for appellant.
    The motion made by the defendant after the state rested to exclude all the evidence offered by the state and for the discharge of appellant should have been sustained. The indictment does not charge murder for the reason that the word “malice” is left out which is always an essential element of the crime. Without malice and premeditation there is no murder, for there is no deliberate design to, effect the death of the person hilled or-of any human being, except as defined by subdivisions (b) and (c), section 1227, Code 1906, and certainly the indictment does not ■charge either one of those. Except as defined by subdivisions (b) and (c), supra,, to constitute murder, the act must be wicked and malicious to constitute the deliberate design, there must be a wiched or bad motive in the mind of the person charged. The manner in which or the means by which the death of the deceased was caused is not set out in the indictment and as this is not done we deem it necessary to charge in the indictment that the defendant did feloniously, wilfully and of his malice aforethought, kill and murder the deceased. See Code 1906, § 1431. If appellant had wilfully, feloniously and of his aforethought killed the deceased as is charged in the indictment, it could only have been manslaughter because he could have done that without malice. Without malice being charged in the indictment none could be proved.
    
      James B. McDowell, assistant attorney-general, for appellee.
    For the first time, in the supreme court, the defendant contends that the indictment is defective, and that in as much as the word “malice” is omitted, only a verdict for manslaughter could have been rendered, and, therefore, asks for a reversal.
    The defendant has had two opportunities; First, under Code 1906, § 1423, he could have demurred to the indictment, when the court would have then required the district attorney to, amend. Nest, he had another opportunity on his motion for a new trial. I submit, that he ought not to be permitted now to raise the question, when he could so easily have raised it when the opportunities presented themselves.
    
      Oorley & McIntyre, on same side.
    The fact that the word “malice” is not contained in the indictment is now immaterial. The defendant appeared and answered the charge of murder, and was represented by able counsel, and now for the first time seeks to take advantage of this defect.
   Mayes, O. T.,

delivered the opinion of the court.

In every indictment for murder it is essential to the validity of the indictment that it contain the allegation that the killing was done “willfully, feloniously, and of malice aforethought;” else the indictment does not charge the crime. The indictment on which Buchanan was tried left out the word “malice,” and is on that account fatally defective. This has been the consistent holding of this court since the case of Jesse v. State, 28 Miss. 100. The case of Jesse v. State, 28 Miss. 100, has too long been the settled law of this state for this court to disturb it now. It has been followed and approved in the cases of Sullivan v. State, 67 Miss. 350, 7 South. 275; Maxwell v. State, 68 Miss. 340, 8 South. 546; Cook v. State, 72 Miss. 520, 17 South. 228; State v. Bardwell, 72 Miss. 538, 18 South. 377; Taylor v. State, 74 Miss. 548, 21 South. 129; and Hall v. State, 44 South. 810.

The judgment is reversed and cause remanded, and prisoner held to await proper indictment.

•Reversed.  