majority"> Faircloth, C. J.:

The defendant was indicted for murder, was convicted of murder in the second degree and appealed, assigning several exceptions in apt time. We are required to order a new trial on one exception and that renders 'it unnecessary to consider the other exceptions. That exception was to his Honor’s charge to the jury. Several witnesses were examined as to the facts and to character. There was conflicting evidence as to the circumstances, the place, the manner of the killing and the mutual provocations. His Honor' told the jury what constituted murder, murder in the second degree, manslaughter and self defence in general terms; and, without committing ourselves to his definitions, in several respects we find the charge defective. It fails to state the contentions of the parties, and fails to tell the jury if they find the facts according to either of the contentions, what the law is applicable thereto. There is no array of the fact or facts, which the evidence tends to prove, if believed by the jury, and the jury is left to apply the law to the facts as they may find them without any aid from the Court. The charge deals in general expressions in technical language, without any array of the facts, or different parts of the evidence, and it is hardly possible for the jury to apply such language to the facts without assistance from the Court. The law does not leave them in such a helpless condition. The law requires that the Judge “shall state in plain and correct manner the *568 evidence given in the case, and declare and explain the law arising thereon” (Code, Section 413) and the defendant’s exception is that he failed to do so, and that he failed to state the issues arising out of the evidence, upon which they were compelled to pass; also that he failed to instruct them as to the law applicable to such facts as they might find to be true from the evidence.

In State v. Dunlop, 65 N. C., 288, it was held that when a prayer for instruction assumes facts to be in proof, and in 'the opinion of the Judge there is no evidence tending to prove them, he ought to say so and disembarrass the jury of the assumed facts and of the law predicated thereon. But if there be evidence tending to prove the assumed facts, the Judge should tell the jury distinctly what the law is, if they find the assumed state of facts to be true, and so as to every such state of facts arising out of the different aspects of the evidence.

The subject is so thoroughly discussed in the above case and in State v. Jones, 87 N. C., 547, a similar case, that we deem it useless to cite other authorities or to make further comment. It was agreed that his Honor “need not read over his notes of the testimony” and he did not do so. This does not change the matter. His Honor was not required to read over the details of the evidence, nor to repeat it in detail to the jury, but he must direct their attention to the principal questions they have to try and give them the law bearing thereon.

A defendant may plead guilty if ho likes, and waive many formalities in the course of the trial, but when he has plead ‘not guilty’ in a capital case, and is in the hands of the jury and Court, his consent that the Judge need not read over his notes cannot be taken as a waiver of his right to have the law applied to the facts in his case, as the law requires shall be done. The case goes back for trial denovo *569 for tbe offence charged in the hill of indictment. State v. Craine, 120 N. C., 601.

New trial.

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