Conviction for murder; punishment, seven years in the penitentiary.

In this case the indictment failed to allege that the killing was upon malice aforethought. In such condition of the record,- the trial court was in error in submitting to the jury the question of awarding to the accused a penalty greater than five years. When the indictment does not allege a killing upon malice aforethought, it is an error for the court to submit to the jury a greater penalty than that allowed as punishment for a killing without malice. If the state desires to secure a conviction with a penalty greater than five years, the indictment must allege and the facts show that the killing was with malice aforethought.

The judgment is reversed, and the cause remanded.