Haymond, Judge:
At the September term, 1968, of the Circuit Court of Mingo County, West Virginia, the defendant, Kester Collins, was indicted for the murder of Robert Evans and on October 1, 1968, upon his arraignment entered his plea of not guilty. Upon the trial of the case the jury returned a verdict of guilty of voluntary manslaughter on October 4, 1968. The court overruled the motion of the defendant to set aside the verdict and grant him a new trial and by its final judgment rendered October 28, 1968, sentenced the defendant to confinement in the state penitentiary for a term of from one year to five years. To that judgment this Court granted this writ of error and supersedeas upon the petition of the defendant and on January 26, 1971 the case was submitted for decision upon the record and the printed briefs and the oral arguments of the attorneys in behalf of the respective parties.
On and prior to May 18,1968, the defendant, Kester Collins, a married man forty-five years of age at the time of the trial and the father of two teen-age children, was the owner and operator of a beer tavern in a remote section of Mingo County near the village of Breeden. The building in which the tavern was located consisted of a large room with adjoining living quarters in which the defendant and his family made their home. The large room in which the trouble occurred which resulted in the death of Robert Evans and his brother Riley Evans during the night of May 18, 1968, was approximately 23 feet in length and approximately 17 feet in width. At one [773]*773end of the room near the adjoining living quarters was a bar 11 feet in length and 2 feet and 3 inches in width, the top of which was “chest high” above the floor. The room also contained a juke box, a pop machine, tables and several seats used in serving patrons and there was a window located some distance from the juke box.
Some time between eight and ten o’clock on the night of May 18, 1968, Robert Evans and Riley Evans, accompanied by their friend Tiny Spaulding, came into the tavern and ordered and drank a quantity of beer and mingled with about one-half dozen other persons who were in the tavern at that time. Robert Evans and Riley Evans had formerly lived in Mingo County but for several years had made their residence in Columbus, Ohio, and at intervals they returned to Mingo County for short visits. They had come to Mingo County to assist in the burial of a cousin who had been killed in a recent automobile accident. The exact age of the Evans brothers does not appear in the record, but they were younger than the defendant, who testified that he had known them during all their lives.
About forty-five minutes or an hour after the Evans brothers had arrived at the tavern, John L. Marcum, Jr., also known as Junior Marcum, a former law enforcement officer of Mingo County, accompanied by James Spry and three women, Loretta Workman, Florence Vance, and Laura Thompson, came into the tavern and Marcum ordered four beers and a soft drink for himself and his companions. At the time Mar-cum ordered the beer the defendant was at or behind the bar. Immediately before Marcum entered the tavern, Robert Evans went to the bar and told the defendant that he was “going to whip” Marcum and that the defendant “had better stay out of it”. While Marcum was at the bar and was about to receive the change from his purchase, Robert Evans, according to the testimony of Marcum, walked up to Marcum and asked him if he knew Robert Evans to which Marcum replied that he did and at that time Robert Evans knocked Marcum to the floor. Marcum grabbed Robert Evans by his waist and “pulled myself up”. Robert Evans began to choke him and when [774]*774Marcum tried to break tbe grip he was beaten about the head with a pop bottle and was temporarily rendered unconscious.
The defendant’s version of the fight was that after Robert Evans had told him that he was going to whip Marcum and had asked Marcum if he wanted to fight and if he knew Robert Evans and after the defendant had told Robert Evans not to start any trouble if he could keep from it and not to bother “nobody” and “to stay out of it”, Robert Evans struck Marcum in the eye and then “got a choke hold around his neck” and they grappled and fell to the floor.
While the fight was in progress Riley Evans beat Marcum about the head with bottles that he apparently had taken from a nearby container. Marcum was severely beaten, was bleeding about the head, was rendered unconscious for a short time and finally, when the fight ended, crawled away from the place where the fight had occurred. Robert Evans who wore a white shirt but no coat was smaller than his brother Riley Evans who wore a blue shirt but also wore no coat.
The defendant testified that while the fight was in progress he unsuccessfully called upon the participants to stop the fight; that he tried “to get a hold of them, with no success, and every time I would start in on them, why, Riley would draw back with a bottle like he was going to smack me with it, and I kept circling around and trying to get a hold of them, and nobody made no effort to help me break it up, and everybody hollowing ‘Stop, stop, stop it, stop it’ ”. He also testified that Robert Evans kicked him back into the nearby juke box and that at that time, fearing that if the fight were not immediately stopped the Evans brothers would kill Marcum, he ran to the living quarters in the rear of the tavern building, got a forty-five automatic pistol from under the mattress of his bed, returned to the tavern from the living quarters and fired a warning shot through the juke box and a second warning shot through the window.
After the second warning shot, Riley Evans, who was standing facing the defendant with a pop bottle in his raised [775]*775hand, moved his other hand toward his pocket and took a step toward the defendant who was a short distance away and behind the bar which was between him and the Evans brothers, and Robert Evans, who was on the floor beating Marcum, turned from Marcum, got up from the floor, turned toward the defendant and put one hand toward his pocket. At that time the defendant fired five shots in rapid succession at the Evans brothers all of which struck them and caused their death. Robert Evans was killed almost instantly and Riley Evans died within a few minutes after he was shot. After firing the shots the defendant told the other persons in the tavern not to say or do anything and he held the pistol in his hand'facing them for several minutes. Some time later, he took the pistol, reloaded it, and placed it in a refrigerator in the living quarters and told his son to call the police. The nearest officer who could be reached by telephone was located about two and one-half miles from the tavern. Several police officers began to arrive at the tavern about one o’clock on the morning of May 19, and they conducted or participated in an investigation of the tragedy.
When the shooting occurred, in addition to the defendant, the Evans brothers and Junior Marcum, at least eight other persons were present. They were: Florence Vance, Loretta Workman, Laura Thompson and James Spry, who had come to the tavern with Marcum; Tiny Spaulding, a cousin and companion of the Evans brothers and a brother-in-law of the defendant; Charles Clay, who before the shooting had played some tunes on a guitar; and Ott Baisden and Josephine Baisden, husband and wife, who were close friends of the defendant. Five eye witnesses, Vance, Workman, Spaulding, Clay and Thompson testified as witnesses in behalf of the State, and Marcum, the Baisdens, who were also eye witnesses, and some character witnesses testified in behalf of the defendant.
The Baisdens testified that the defendant came from behind the bar and tried to stop the fight between the Evans brothers and Marcum before he went for the pistol; but none of the five eye witnesses in behalf of the State testified that the defendant did anything to stop the fight before he fired [776]*776the two warning shots and none of them gave any evidence of any threat or hostile act by Robert Evans or Riley Evans against the defendant. Vance, Workman, Spaulding and Clay each testified that the defendant refused to permit any of the persons present in the tavern to render any assistance to the Evans brothers before their death.
Though some testimony of the defendant and the testimony of other witnesses varies as to the number of shots, the evidence, including the testimony of the defendant, establishes clearly that the defendant, while the fight was in progress, fired two warning shots with a short interval between them, and that after another short interval and after the fight had ended, and Riley Evans had turned from Marcum and faced the defendant and Robert Evans had also turned from Mar-cum and rose to his feet also facing the defendant, the defendant fired five shots in rapid succession from the automatic pistol and that all five shots entered the bodies of Robert Evans and Riley Evans and killed them. The evidence also shows clearly that Marcum was the victim of an unprovoked and vicious attack by Robert Evans, in which Riley Evans joined.
The defendant, Junior Marcum, Ott Baisden, Pinkney Dent, James Marcum, Tom Marcum and Virgil Marcum testified that the general reputation of Robert Evans and Riley Evans as peaceable law-abiding citizens in the community in which the shooting occurred, was bad, but the court refused to permit the defendant to show that Robert Evans and Riley Evans were men of known dangerous and violent character or reputation.
The defendant assigns as error the action of the trial court (1) in refusing to permit the defendant to offer proof that Robert Evans and Riley Evans were men of known dangerous and violent character or reputation; and (2) in refusing to give defendant’s Instructions Numbers 7 and 8.
In behalf of the first assignment of error, the defendant contends that inasmuch as he relies upon self-defense to excuse the homicide and as there was evidence which showed [777]*777or tended to show that Robert Evans, the deceased, at the time of the killing, was making a murderous attack upon the defendant, the defendant was entitled to prove the character or reputation of the deceased as a dangerous and quarrelsome man. When self-defense is relied upon to excuse homicide, the burden is upon the defendant to prove that defense by a preponderance of the evidence and it may be established by evidence introduced by the defendant or by the State or by both and by all the facts and circumstances shown by the evidence. State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330; State v. Zannino, 129 W.Va. 775, 41 S.E.2d 641; State v. McMillion, 104 W.Va. 1, 138 S.E. 732; State v. Banks, 99 W.Va. 711, 129 S.E. 715; State v. Coontz, 94 W.Va. 59, 117 S.E. 701; State v. Hardin, 91 W.Va. 149, 112 S.E. 401; State v. Panetta, 85 W.Va. 212, 101 S.E. 360; State v. Johnson, 49 W.Va. 684, 39 S.E. 665; State v. Hatfield, 48 W.Va. 561, 37 S.E. 626; State v. Manns, 48 W.Va. 480, 37 S.E. 613; State v. Greer, 22 W.Va. 800; State v. Jones, 20 W.Va. 764.
All the evidence in the case, both in behalf of the defendant and in behalf of the State, does not establish the defense of self-defense on which the defendant relied for acquittal, and by its verdict of guilty of voluntary manslaughter, the jury found that self-defense had not been established by the evidence.
This Court has said that even though the State, upon a trial for murder, introduces evidence which tends to show extenuating circumstances, such evidence does not relieve the defendant of the burden of establishing self-defense upon which he relies, that it is the peculiar province of the jury to weigh the evidence on the question of self-defense, and that a verdict of a jury adverse to that defense will not be set aside unless it is manifestly against the weight of the evidence. State v. Banks, 99 W.Va. 711, 129 S.E. 715.
Neither Robert Evans nor Riley Evans was armed with a deadly or dangerous weapon. Neither of them at any time made any threats against the defendant or committed any overt act which justified any belief that either of them was about to commit or intended to commit any attack upon the [778]*778defendant which would endanger his life or inflict grave bodily injury upon him. According to the testimony of the defendant himself, before he fired any of the five shots, Robert Evans who had been on the floor choking Junior Marcum, had “let go of him”, had got to his feet and had taken a step “sort of in the direction of me”. He also testified that after Robert Evans had “let go” of Junior Marcum, Robert Evans “made a step kindly like he was going for his pocket and reaching into his pocket or something, and, therefore, I thought they both had guns and they was standing real close together” and that “I thought they was about ready to both let into shooting”. When asked to tell the jury why he fired the shots that killed Robert Evans and Riley Evans, the defendant gave this testimony: “When Rile raised up there, he had a pop bottle in his hand. Q. Now, when was that? A. When I fired the second shot, he raised up with a pop bottle in his hand, and he had it— Q. Stand up there and show the jury so they see your waist and your body. A. Sort of had it, sort of in a motion like this. Q. Stand up so you can show the jury. A. And had it in motion, sort of like that. It looked like he was reaching to his belt or his pocket one. Q. And what did you think he was about to do if anything? A. Two things. I thought he was going to throw the bottle and I thought he was going to go for a gun.”
The belief expressed by the defendant that Riley Evans was going to throw the bottle and that he was “going to go for a gun” was not a reasonable belief and the jury so found. It was unreasonable to conclude that Riley Evans, armed with only a pop bottle, would throw it at the defendant or strike the defendant with it while the defendant, facing him within a few feet, had a loaded pistol in his hand from which he had already fired two shots. It was likewise unreasonable to believe that either Robert Evans or Riley Evans, neither of whom was wearing a coat or a jacket, was armed with any dangerous or deadly weapon. Though one of the investigating officers who came to the tavern some time after the shooting had occurred, found a blackjack in the jacket of Robert Evans, he did not wear his jacket during the fight or when he was shot. The evidence does not indicate that the defendant [779]*779knew of the presence of the blackjack in Robert Evans’ jacket or that Evans made any use of the blackjack at any time during his presence at the tavern.
In a trial of a homicide where the accused relies on self-defense and there is appreciable evidence to support his theory, the accused may prove the reputation of the deceased as a dangerous and quarrelsome man, State v. Walker, 92 W. Va. 499, 115 S.E. 443; and in a prosecution for murder where self-defense is relied upon to excuse the homicide and there is evidence showing or tending to show that the deceased at the time of the killing was making a murderous attack upon the defendant, it is competent for the defendant to prove the character or reputation of the deceased as a dangerous and quarrelsome man. State v. Hardin, 91 W.Va. 149, 112 S.E. 401. As already indicated, there was no appreciable evidence to support the defense of self-defense and no evidence showing or tending to show that either Robert Evans or Riley Evans was at the time of the killing making a murderous attack upon the defendant. Because of the absence of such evidence the defendant was not entitled to show that either Robert Evans or Riley Evans was a man of dangerous and violent character and reputation. The action of the court in refusing to admit evidence of that nature did not constitute error.
When in a prosecution for murder the defendant relies upon self-defense to excuse the homicide and the evidence does not show or tend to show that the defendant was acting in self-defense when he shot and killed the deceased, the defendant will not be permitted to prove that the deceased was of dangerous, violent and quarrelsome character or reputation. In the opinion in State v. Madison, 49 W.Va. 96, 38 S.E. 492, this Court used this language: “It is only where the right of self-defense is involved under the evidence that the bad character of the deceased as to peaceableness is competent. Whart. Crim. Ev., s. 68; Gardner v. State, 35 Am. St. R. 202 and note. Even when one threatened another, it was held that the dangerous character of the deceased was not admissible ‘where it is shown that the prisoner sought him out and shot him, without attempt on his part to execute his threat.’ ”
[780]*780Nor did the trial court commit error in refusing to give Instruction Number 7 and Instruction Number 8 offered by the defendant.
Defendant’s Instruction Number 7 would have told the jury that the proprietor of a beer tavern licensed under the laws of this State acts unlawfully if he permits disorderly conduct of any kind upon the premises covered by his beer license or permits any act whatsoever to be done which constitutes a crime under the laws of this State and that the defendant in the circumstances in evidence at the time Robert Evans and Riley Evans attacked Junior Marcum, was required by law to take such steps as were reasonably necessary in the light of the existing circumstances to interfere for the purpose of stopping the altercation and restoring order in the licensed beer tavern. It is clear that the foregoing instruction is based on the theory advanced by the defendant that in the existing circumstances he was required by law to interfere and take such action as was reasonably necessary to stop the fight in which the Evans brothers and Marcum were engaged.
Manifestly, the statute, Paragraphs (m) and (p), Section 13, Article 16, Chapter 11, Code, 1931, as amended, which to the extent here pertinent provides that it shall be unlawful (m) for any licensee to permit loud, boisterous or disorderly conduct of any kind upon his premises or to permit the use of loud musical instruments if either or any of them may disturb the peace and quietude of the community in which such business is located * * * and (p) for any licensee to permit any act to be done upon the licensed premises, the commission of which constitutes a crime under the laws of this State, may not be given the force and effect of requiring such licensee to resort to whatever force may be necessary, whether he be armed or unarmed, to quell the disturbance or to subdue the persons engaged in the commission of an unlawful or felonious assault. The word “permit” as used in the statute may not be given that meaning, force or effect. On the contrary, it is clear that the Legislature used that word for the purpose of preventing the licensee from engaging in any of the foregoing acts or permitting persons under his control or other [781]*781persons from engaging in such acts upon the premises but was not intended to authorize or require him to use such force as may be necessary to prevent or stop such acts. Clearly it is one thing to refuse to permit certain acts to be done and a totally different thing to require the use of force to prevent and stop such acts. The instruction misstates the law and is misleading and is not supported by the evidence which shows clearly that before the defendant fired any of the final five shots the fight between the Evans brothers and Junior Mar-cum and the attack upon him had ended and that there was no necessity for the defendant to fire any shots other than the two warning shots to put an end to the disturbance.
Defendant’s Instruction Number 8 would have told the jury that a person who sees a serious crime being committed or carried out against another person upon his premises need not stand idly by, but is entitled under the law to take such steps as are reasonably necessary to prevent those engaged in the commission of such crime from carrying their criminal activity any further and that if the jury should find from the evidence that while in the beer tavern of the defendant Robert Evans and Riley Evans made an unprovoked assault upon Junior Marcum in the presence of the defendant and engaged in carrying out such assault so as to cause a reasonable person to believe that serious bodily harm was being inflicted upon Marcum or that the nature of the assault was such as to put him in danger of losing his life, the defendant had the right to interfere and to take all steps reasonably necessary to bring the assault to an end and to arm himself for that purpose but that the defendant acted at his peril and that it is for the jury to determine whether his conduct in the circumstances shown by the evidence was reasonable and necessary. This instruction, like Instruction Number 7, is not sustained by the evidence and tends to mislead the jury and for that reason it was properly refused. The evidence shows clearly that the fight between the Evans brothers and Marcum had ended before the defendant fired the shots which caused their death and that after the fight had ended there was no necessity for him to act as he did to protect Marcum from danger of death or serious injury. As the instruction was properly [782]*782refused because not supported by evidence and because it tends to mislead the jury it is unnecessary to consider or determine whether the instruction correctly states the law as to the right of a person to intervene to protect another person whose life is in danger and as to the degree of force he may use to repel the attack of the assailant; and those questions are not discussed, considered or determined.
An instruction which does not correctly state the law is erroneous and should be refused. Point 6, Syllabus, Sydenstricker v. Vannoy, 151 W.Va. 177, 150 S.E.2d 905; Preston County Coke Company v. Preston County Light and Power Company, 146 W.Va. 231, 119 S.E.2d 420; Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598; Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164; Moore v. Turner, 137 W.Va. 299, 71 S.E.2d 342, 32 A.L.R.2d 713; Gilkerson v. Baltimore and Ohio Railroad Company, 129 W.Va. 649, 41 S.E.2d 188; Parrish v. City of Huntington, 57 W.Va. 286, 50 S.E. 416; Dorr v. Camden, 55 W.Va. 226, 46 S.E. 1014, 65 L.R.A. 348; State v. Morrison, 49 W.Va. 210, 38 S.E. 481.
It is reversible error to give an instruction which tends to mislead and confuse the jury. Yates v. Mancari, 153 W.Va. 350, 168 S.E.2d 746; Sydenstricker v. Vannoy, 151 W.Va. 177, 150 S.E.2d 905; Preston County Coke Company v. Preston County Light and Power Company, 146 W.Va. 231, 119 S.E.2d 420; Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598; Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672; Matthews v. Cumberland and Allegheny Gas Company, 138 W.Va. 639, 77 S.E.2d 180; Morrison v. Roush, 110 W.Va. 398, 158 S.E. 514; Chaney v. Moore, 101 W.Va. 621, 134 S.E. 204, 47 A.L.R. 800; Frank v. Monongahela Valley Traction Company, 75 W.Va. 364, 83 S.E. 1009; Parker v. The National Mutual Building and Loan Association, 55 W.Va. 134, 46 S.E. 811; State v. Morrison, 49 W.Va. 210, 38 S.E. 481.
Instructions must be based upon the evidence and an instruction which is not sustained by evidence should not be given. Point 1, Syllabus, Hollen v. Linger, 151 W.Va. 255, 151 S.E.2d 330; Frye v. Norton, 148 W.Va. 500, 135 S.E.2d 603; Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726; Maynard v. [783]*783National Fire Insurance Company of Hartford, 147 W.Va. 539, 129 S.E.2d 443; State v. Vance, 146 W.Va. 925, 124 S.E.2d 252; Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186; State ex rel. Shatzer v. Freeport Coal Company, 144 W.Va. 178, 107 S.E.2d 503; State v. Morris, 142 W.Va. 303, 95 S.E.2d 401; State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526; Mulroy v. Co-Operative Transit Company, 142 W.Va. 165, 95 S.E.2d 63; Rees Electric Company, Inc. v. Mullens Smokeless Coal Company, 141 W. Va. 244, 89 S.E.2d 619; Ward v. Smith, 140 W.Va. 791, 86 S.E.2d 539; Higgs v. Watkins, 138 W.Va. 844, 78 S.E.2d 230; Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164; Thrasher v. Amere Gas Utilities Company, 138 W.Va. 166, 75 S.E.2d 376; Ballengee v. Whitlock, 138 W.Va. 58, 74 S.E.2d 780; Cato v. Silling, 137 W.Va. 694, 73 S.E.2d 731, certiorari denied, 348 U.S. 981, 75 S. Ct. 572, 99 L. Ed. 764, rehearing denied, 349 U.S. 924, 75 S. Ct. 659, 99 L. Ed. 1256; Chesapeake and Ohio Railway Company v. Johnson, 134 W.Va. 619, 60 S.E.2d 203; Davis v. Pugh, 133 W.Va. 569, 57 S.E.2d 9; State v. Humphreys, 128 W.Va. 370, 36 S.E.2d 469; Neal v. City of Bluefield, 105 W.Va. 201, 141 S.E. 779; Morgan Lumber and Manufacturing Company v. Surber, 104 W.Va. 308, 140 S.E. 12; Roberts v. Lykins, 102 W.Va. 409, 135 S.E. 388; Wilson v. McCoy, 93 W.Va. 667, 117 S.E. 473; Williams v. County Court of Lincoln County, 90 W.Va. 67, 110 S.E. 486; Penix v. Grafton, 86 W.Va. 278, 103 S.E. 106; Bond v. National Fire Insurance Company, 77 W.Va. 736, 88 S.E. 389.
The judgment of the Circuit Court of Mingo County is affirmed.
Affirmed.