HARALSON, J.¶11. The evidence tends ■ to show without conflict, that the defendant, without fault in bringing on the difficulty, did what he could to avoid it when precipitated on him by deceased, and retreated in the face of apparent peril. That part of the general charge of the court to the jury first excepted to, states generally, a correct proposition of law on the doctrine of retreat. If abstract when applied to the facts of this case, adhering to the rule in respect to the giving or refusing to give abstract charges, we would not reverse on account of this charge.
¶22. The second part of the oral charge is fatally erroneous. It was for the jury to find, under all the evidence in the cause, whether the defendant was guilty of any offense or not, and if guilty, to ascertain the degree of his guilt, — whether of murder in the first or sec*44ond degree, or of manslaughter in the first degree, which this charge took away from them. The fact that defendant was found- guilty of murder in the second degree does not cure, as urged, this vice of the charge.— Brown v. The State, 109 Ala. 76; Cobia v. The State, 16 Ala. 781.
¶3What is said -as to this charge, goes in -condemnation, also, of charge A requested by and given for the State.
¶4Charge B did not hypothesize that defendant at the time he shot deceased knew that he was unarmed. Besides, there is no proof to show that deceased had been disarmed of the knife, the evidence tended to show he had, and was using at the time on defendant. It should have been refused.
¶5The charge numbered 1 requested by the defendant should have been given. The evidence shows without conflict, as we have before -stated, that the fact hypothesized in this charge was true. If so, it should have been given.
¶63. The verdict of the jury was: “We the jury find the defendant guilty of murder in the second degree.” The court received the verdict and sentenced the defendant to ten years imprisonment in the penitentiary. Sections 4857, 4858 of the Code,- require the jury, if they find the defendant guilty under an indictment for murder, to ascertain by their verdict, whether it is murder in the first or second degree, and if they find him guilty of murder in the -second degree, the duty is imposed on them, to affix the punishment, at not less than ten years. The court has no discretion in affixing the punishment in such case, and it transcended its authority in so doing. The defect in the verdict and the.sentence of the court thereon do not entitle the defendant to his discharge as for having been once in jeopardy, as contended by defendant’s counsel, but constitute -simply reversible error. The verdict was incomplete -or irregular, and not void. This court has heretofore fully considered and decided this question, relieving us from its further consideration.- — Cobia v. The State, supra; Dover v. The State, 75 Ala. 40; Gunter v. The State, 83 Ala. 96, 104; Foster *45v. The State, 88 Ala. 182; Zaner v. The State, 90 Ala. 651.
¶7The judgment and sentence of the lower court are reversed and the cause remanded.
