* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 262, n. 20; Indictments and Informations, 31CJ, p. 866, n. 96. The appellant was indicted for murder, and convicted and sentenced for an assault with intent to kill and murder. The indictment is in the form prescribed by section 1431, Code 1906 (section 1248, Hemingway's 1927 Code), and alleges that the appellant "did feloniously, willfully, and of his malice aforethought, kill and murder the deceased." The verdict of the jury was pursuant to an instruction which authorized them to convict the defendant of assault with intent to kill and murder. A motion by the appellant in arrest of judgment was overruled. An assault and battery with intent to *Page 749 kill and murder is not included in the allegations of this indictment. Moore v. State, 59 Miss. 27; Scott v. State,60 Miss. 268. Consequently, section 1499, Code 1906 (section 1320, Hemingway's 1927 Code), cannot be here invoked. The judgment of the court below will be reversed; and since, underJones v. State, 144 Miss. 52, 109 So. 265, the appellant may again be tried for murder, the cause will be remanded.
Reversed and remanded.