Baldwin, J. concurring.

The defendant was indicted for murder and convicted of manslaughter. On the trial, the Court instructed the jury that if they believed from the evidence that the defendant killed the deceased without malice, either express or implied, and without any mixture of deliberation, this was manslaughter, and they should find a ver*324diet to that effect. The statute says, that “ manslaughter is the unlawful killing of a human being,” etc. We do not see that the instruction is in conflict with the statute. Every killing is presumed to be unlawful; and this presumption obtains in manslaughter as well as in murder. The absence of malice and deliberation distinguishes the former from the latter, but does not alter the presumption as to the unlawful character of the killing. We think the objections to the first and second instructions given at the request of the District Attorney are also untenable. “ It may be observed,” says Russell, “ that a man cannot in any case justify killing another by a pretense of necessity, unless he were wholly without fault in bringing that necessity upon himself; for if he kill any person in defense of an injury done by himself, he is guilty of manslaughter at least.” (1 Russ, on Crimes, 669.) This doctrine is also laid down in other authorities, and we do not understand that the statute establishes a different rule upon the subject. (1 Hale, 482 ; 1 Hawk. 172.)

We see no error in the record, and the judgment is therefore affirmed.