Wilson was convicted of murder of the second degree, his punishment being assessed at confinement in the penitentiary for sixty-seven years. The learned judge below charged the jury that the punishment for murder of the second degree was not less than five years confinement in the penitentiary.
It appears from the record that the jury came into court and propounded to the court the following question: “Judge Aldredge: Your honor will please notify us the highest punishment the law allows for murder in the second degree.” To this his honor replied: “Gentlemen of the jury: In answer to the inquiry propounded by you, you are instructed that the highest *528punishment for murder to the second degree is confinement in the State penitentiary for life.”
Under the authority of the following cases this was error: Burford v. The State, 44 Texas, 525; Searcy v. The State, 1 Texas Court of Appeals, 440; Allen v. The State, Id., 514; Garrett v. The State, Id., 605; Robinson v. The State, 2 Texas Court of Appeals, 390; Hamilton v. The State, Id., 494; Jones v. The State, 7 Texas Court of Appeals, 338; Collins v. The State, 5 Texas Court of Appeals, 38.
From our knowledge of the learned judge who tried this case, we are satisfied that this was.purely an oversight; for since he has occupied the bench, he has exhibited great familiarity with the provisions of the Codes.
For the error in the charge the judgment is reversed and the cause is remanded.
Beversed and remanded.
Opinion delivered June 28, 1883.