The evidence for the defendant at the trial of this action, if believed by the jury, showed that the defendant did not enter into a fight with the deceased willingly and unlawfully, either at the time the defendant struck the deceased with the lightwood knot which he had picked up from the ground as the deceased was advancing upon him, in a threatening attitude, or, subsequently, when the defendant shot and killed the deceased, who was again advancing upon the defendant, with an open knife in his right hand. On each occasion the deceased, and not the defendant, was the aggressor. The defendant had not provoked the assault upon him by the deceased, and was free from fault. All the evidence showed that at the time of the homicide the defendant was at a place where he had a right and where it was his duty as an employee to be. The deceased, after he had left the filling station, in compliance with the repeated requests of the owner and of the defendant, returned and, as the defendant was about to sit down on a bench at the filling station, assaulted him, with a knife. The defendant did not shoot the deceased until he had warned him that he would do so if he continued to advance upon him with the knife in his hand.
An examination of the charge of the court to the jury fails to disclose any instruction as to the law applicable to the facts as shown by the evidence for the defendant. The instructions as to the law of self-defense, while correct as general propositions, were not in compliance with the mandatory provisions of the statute. C. S., 564.
In S. v. Blevins, 138 N. C., 668, 50 S. E., 763, it is said: “It has been established in this State by several well considered decisions that where a man is without fault, and a murderous assault is made upon him — an assault with intent to kill' — he is not required to retreat, but may stand his ground, and if he kill his assailant and it is necessary to do so in order to save his own life or protect his person from great bodily harm, it is excusable homicide, and will be so held. (S. v. Harris, 46 N. C., 190; S. v. Dixon, 75 N. C., 275; S. v. Hough, 138 N. C., 663); this necessity, real or apparent, to be determined by the jury on the facts as they reasonably appeared to him.”
*419The failure of the court to instruct the jury in accordance with this well settled principle (S. v. Bost, 192 N. C., 1, 133 S. E., 176) was error, for which the defendant is entitled to a new trial. It is so ordered.
New trial.