The offense is murder; the punishment confinement in the penitentiary for fifty years.

It was not alleged in the indictment that the killing was done with malice aforethought. Hence the state was not authorized to' seek a penalty in excess of five years. Swilley vs. State, Opinion 12,792, delivered December 11, 1929, not yet reported. The jury assessed the penalty at imprisonment in the penitentiary for fifty years. 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.