The offense is murder, and the penalty twenty-five years in the penitentiary.

The court in his charge authorized a conviction for murder upon malice aforethought and the infliction of a penalty in excess of five years, though the indictment failed to state the accusatory facts upon which such a charge could be based. A penalty of twenty-five years could not be assessed under the present indictment. If the state desires to ask for a penalty in excess of five years, a new indictment should be returned containing the averment that the killing was upon malice aforethought.

Because of this error, the judgment is reversed, and cause remanded.

PER CURIAM.

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.