¶1Conviction for murder; punishment, thirty-five years in the penitentiary.
¶2The learned trial judge in this case instructed the jury that if they believed the accused was actuated by malice aforethought, they might punish him by death or imprisonment in the penitentiary for any term of years not less than two. The indictment in the case did not justify or warrant such a charge. There was no allegation therein that the killing was upon malice aforethought. The penalty inflicted is very much in excess of the maximum allowed, where the killing was not upon malice aforethought. Unless there be such allegation in the indictment, a penalty such as this would be unwarranted, and an instruction to the jury as above outlined would be submitting to them a penalty greatly in excess of that pei'mitted by law where there was no malice aforethought. If a greater penalty than five years be desired, a new indictment should be returned.
¶3The judgment will be reversed, and the cause remanded.