#### Gates *v.*The State.

While it is necessary to allege in an indictment for murder that *the*homicide was committed with *malice aforethought,*yet the omission to use that exact expression may be supplied by the employment instead thereof of any language which may be its legal equivalent. The use of the words “ malice aforesaid ” in lieu of the words “ malice aforethought,” is not such a defect of substance affecting the real merits of the case as will, after verdict, support a motion in arrest of judgment.

January 28, 1895.

Indictment for murder. Before Judge Harris. Troup superior court. November term, 1894.

The indictment charged that Gates, “ with force and arms did unlawfully and with malice aforesaid kill and *341murder one Lee Sledge, by then and there'shooting said Lee Sledge with a certain loaded pistol.” Defendant was found guilty, and his motion in arrest of judgment was overruled. The motion was upon the grounds; (1) The crime of murder is insufficiently charged or described. (2) The necessary element of malice, a legal ingredient, is not properly, legally or sufficiently alleged in said indictment, and thus murder is not alleged in the terms or language of the code. (3) Murder is not fully set out in the indictment, for that the malice required to constitute murder, to wit “malice aforethought,” is not alleged in said indictment, or that there was a deliberate intention unlawfully to kill or shoot Lee Sledge, the alleged deceased. (4) The death of Lee Sledge, who is alleged to have been shot, is not alleged in said indictment.

F. M. Longley and T. H. Whitaker, for plaintiff in error. J. M. Terrell, attorney-general, and T. A. Atkinson, solicitor-general, *contra.*

Atkinson, Justice.

Upon an indictment for murder, it is necessary to allege and prove that the homicide upon which the prosecution is based was committed with malice which was operating upon the mind of the slayer at the time the fatal blow was given. This maybe proven by direct testimony or it may be shown by circumstances, but the fact must, nevertheless, be established. Upon a motion in arrest of judgment after a conviction for the offense of murder, if the allegations of the indictment be sufficient to authorize its admission, this court is bound to presume that the evidence submitted was in accordance with and sufficient to establish the allegations in the indictment. The motion in arrest of judgment in this case is based upon four grounds, the only two (the third and fourth, the first and second being included in the *342third) necessary for consideration being, that the offense of murder is not fully set out in the indictment, for that the malice required to constitute murder, that is to say malice aforethought, is not alleged in the indictment, or that there was a deliberate intention unlawfully to kill or shoot the deceased; and the fourth is that the death of the person alleged to have been slain is not laid in the indictment. While ordinarily it is proper, and perfectly accurate pleading would seem to require, that each constituent element of an offense should be in the indictment stated in the language of the code, yet upon motion in arrest of judgment’ this is not essential, if the language employed is a fair legal equivalent of the terms employed by the code. The term malice aforethought in the code means that the homicide must be committed upon premeditated design, and that term necessarily includes malice both express and implied, either of which is sufficient, if proven, to sustain a conviction. Where the indictment alleges that the homicide was committed with malice, and instead of the word *aforethought,*employs the word *aforesaid,*the effect of the use of this latter expression might be to limit the State in its introduction of testimony to the showing of that malice which had theretofore by the slayer been expressed. It might limit the range of judicial inquiry to the existence of that particular kind of malice alleged in the indictment; that is to say, malice *aforesaid.*But if it be true as alleged in this indictment that the defendant slew the deceased unlawfully and with malice aforesaid, the jury would be authorized, indeed required, to convict him; because to say that he slew him with malice is an allegation that at the time the deceased was slain malice was the preponderating motive in the mind of the slayer. After a conviction, the presumption being that the evidence was in accord with the exact allegations as made in the indictment, it will be pre*343sumed that this defendant slew the deceased with malice aforesaid, that is to say, with malice which had previously been declared by the accused. *We*do not think the fourth ground of the motion in arrest of judgment is sustained by the record, as will be apparent from a perusal of the indictment. The allegation is, thát the defendant, with- malice aforesaid, did kill and murder the deceased. *We*think it may be fairly implied from the use of this language, it being alleged that the deceased was both killed and murdered, that he is in fact dead. The court committed no error in overruling the motion in arrest of judgment. *Judgment affirmed.*