delivered the opinion of the court.

The court did not err in declining to charge the jury with reference to the homicide as one which under any phase of the evidence could be considered as falling within those which, by sect. 2879 of the Code of 1880, are made excusable ; it cannot be said that the killing was by “ accident or misfortune ” in the sense in which these words are used in said section. The weapon used by the' accused was a dangerous weapon, used with such violence as would ordinarily result in the infliction of serious injury, and was intentionally used b}' him. Under such circumstances where death follows it cannot be said to have been the result of “ accident or misfortune.” As it was not error for the court to refuse to give this section in charge to the jury as the law which did or might govern them in their deliberations, neither was it error to refuse to permit it to be read to the jury by the counsel for the- accused in his speech, either as a part of his argument, or as the law of the case. The court refused to give this section in charge to the jury, not because it was not correct as an abstract proposition of. law, but because it was not applicable to the facts developed, and counsel must in all cases be governed in such matters by the opiuiou of the court. .If .error is committed in refusing the charge, that may be corrected by appeal, but the effect of a refusal by the court to charge the jury as desired by the accused cannot be obviated or avoided by the action of counsel-in reading to the jury as a part of his argument any statute, decision, or text-book announcing the law to be as stated in the charges which have been refused by the court. The court erred in giving the eighth instruction on behalf of the State.

The evidence does not disclose any intention on the part of the accused to “ seek a difficulty, with the' deceased,” nor any facts from which the jury coiild rightly infer such intention.

It cannot be said that a man on his own premises seeks a difficulty with a trespasser whom he attempts to evict therefrom, or to restrain from an unwarrantable injury, to or *714control over his property. The accused, under the circumstances shown by the evidence, had the right in law to interpose by force to prevent the commission of the trespass by Boon; he was authorized to arm- himself with whatever weapon he desired, and to use it to the extent of slaying the trespasser if it should become necessary, iu the progress of the difficulty, to protect his own life or person against a felonious assault. No man is required by law to yield possession of his property to the unlawful claim of another. He may defend his possession; and while he may not kill to prevent the trespass, he may kill to protect his own person against a deadly assault made by the trespasser on him. In other words, one who assaults a trespasser to prevent the injury threatened is the actor but not the aggressor in the difficulty, and he does not lose the right of self-defence because he makes the attack.

Reversed and new trial awarded.