Conviction for murder; punishment, death.

The indictment herein contains four counts, counts one and three charging that the accused killed deceased with malice aforethought. Counts two and four charge that the accused killed deceased voluntarily, — there being therein no allegation that the killing was upon malice aforethought. The verdict of the jury specifically finds appellant guilty under the second count in the indictment. Said count having failed to charge that the murder was with malice aforethought, can not be made the basis for a judgment of conviction carrying with it a penalty greater than five years’ imprisonment in the penitentiary. Swilley v. State, No. 12792, opinion December 11, 1929.

The judgment is reversed and the cause remanded.

Reversed and remanded.

on state’s motion for rehearing.

The same question is involved as in Swilley v. State, No. 12792, in which motion for rehearing is overruled this date. For the same reasons set out in the opinions, both originally and on rehearing in that case, the state’s motion for rehearing in the present case must be overruled and it is so ordered.

Overruled.