¶1 There are at least two authoritative decisions in this State to the effect that, on the trial of a criminal prosecution in the Superior Court, the determinative facts must be found by the jury. They may not be referred to the decision of the judge, even by consent of defendant or his counsel. S. v. Holt, 90 N. C., 749; S. v. Stewart, 89 N. C., 563. These facts are sometimes presented in the form of a special verdict, but *267 when such procedure is had all the essential facts must be found by the jury; the guilt or innocence of the defendant must follow as a conclusion of the law from the facts found, and a special verdict which refers to the decision of the judge any fact or inference of fact necessary to the determination of the issue is insufficient in law and will be set aside. S. v. Fenner, ante, 247; S. v. McCloud, 151 N. C., 730; S. v. Watts, 32 N. C., 369; Clark’s Criminal Procedure, p. 488.
¶2 In the case before us, the defendant had been arrested and held without warrant. He had a right to resist and to use all the force which, in the judgment of the jury, was necessary to free himself, on the facts as they reasonably appeared to him. S. v. Belk, 76 N. C., 10.
¶3 According to the verdict, “the defendant suddenly cut the prosecuting witness with a. knife, in the back of the neck, as the latter leaned over to hold the bottles in the buggy,” and, in the fight which followed, “he cut the witness twice more, under the shoulder and in the back.” Whether the cutting was in the effort to free himself is an open question on the verdict, and whether it was necessary for such purpose is an inference of fact which may or may not have been properly determined; but, under our law, the decision was not for the court, but the jury. True, the defendant was afterwards choked into submission and tied and taken to jail; but this was in the struggle, after thé first cutting, and, while relevant to the issue, is not controlling thereon, as a conclusion of law.
¶4 For the error indicated, the. .judgment and verdict will be set aside, and this will be certified, that the question of defendant’s guilt or innocence may be submitted to another jury.
¶5 Error.