
    Jose De Pena v. The State.
    No. 12815.
    Delivered December 18, 1929.
    Rehearing denied State March 19, 1930.
    Reported in 25 S. W. (2d) 1106.
    The opinion states the case.
    
      M. M. Winningham and M. V. Ward, both of El Paso, for appellant.
    
      
      W. S. Berkshire, Dist. Atty., and 7. L. Rasberry, Asst. Dist. Atty., both of El Paso, and A. A. Dawson of Canton, State’s Attorney, for the State.
   LATTIMORE, Judge.

Conviction for murder; punishment, death.

It is charged in the indictment herein that appellant “Did then and there voluntarily kill Alfredo Acuna by shooting him with a pistol, against the peace and dignity of the State.” An indictment for murder which does 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, No. 12792, opinion December 11, 1929. The indictment in the instant case fails to charge that the murder was committed with malice aforethought.

For the reason mentioned the judgment will be reversed and the cause remanded.

Reversed and remanded.

on motion for rehearing.

LATTIMORE, Judge.

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

The State’s motion for rehearing will be overruled.

Overruled.  