De Pena v. State

25 S.W.2d 1106, 114 Tex. Crim. 314, 1929 Tex. Crim. App. LEXIS 812

Opinions

LATTIMORE, Judge.

Conviction for murder; punishment, death.

It is charged in the indictment herein that appellant “Did then and there voluntarily kill Alfredo Acuna by shooting him with a pistol, against the peace and dignity of the State.” An indictment for murder which does not charge that same was committed with malice aforethought, will not sustain a judgment of conviction carrying with it a penalty greater than five years in the penitentiary. Swilley v. State, No. 12792, opinion December 11, 1929. The indictment in the instant case fails to charge that the murder was committed with malice aforethought.

For the reason mentioned the judgment will be reversed and the cause remanded.

Reversed and remanded.