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.