Opinion
No. 13131.
Delivered March 19, 1930.
Murder — Indictment — Malice Aforethought.
The indictment failing to allege that the killing was done with malice aforethought, a penalty in excess of five years in the penitentiary was not authorized.
Appeal from the District Court of Caldwell County. Tried below before the Hon. M. C. Jeffrey, Judge.
Appeal from a conviction for murder; penalty, confinement in the penitentiary for life.
The opinion states the case.
G. N. Brubaker of San Marcos, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
The offense is murder; the punishment confinement in the penitentiary for life.
The indictment charged that appellant "did then and there unlawfully and voluntarily kill Florencio Castillo by shooting him with a gun." There being no allegation that the killing was upon malice aforethought, the state was not authorized to seek a penalty in excess of five years. Swilley vs. State, Opinion 12,792, delivered December 11, 1929, and not yet reported. The jury assessed the penalty at life imprisonment in the penitentiary. If a penalty in excess of five years is to be sought a new indictment should be returned.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.