Appellant renews his complaint brought forward in bills numbers one, two, three and four. They have been re-examined. As drawn the bills are not thought to present error. Appellant also urges that we did not discuss his claim that the evidence was not sufficient to support a conviction for a killing upon malice. The punishment was confinement in the penitentiary for five years, a penalty which might be assessed for murder either with or without malice. The verdict does not state that the jury found the killing to have been upon malice. The judgment likewise condemned appellant to be guilty of "murder" only. Under the record we are not apprised that the jury found appellant guilty of murder with malice, and the question suggested by appellant seems not to arise.
The motion for rehearing is overruled.
Overruled. *Page 529