
    W. F. Allen v. The State.
    No. 12770.
    Delivered April 2, 1930.
    Reported in 26 S. W. (2d) 919.
    The opinion states the case.
    
      Vickers & Campbell of Lubbock, and Williams & Bell of Childress, for appellant.
    
      G. E. Hamilton of Matador, Special Counsel, and A. A. Dawson of Canton, State’s Attorney, for the State.
   LATTIMORE, Judge.

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 can not be sustained under such indictment. Swilley v. State, No. 12792, 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.

Reversed and remanded.  