Jenkins, P. J.
(After stating the foregoing facts.) Exception is taken to the following portion of the charge of the court: "The court instructs you as a matter of law that the effect of the admissions in the answer that the defendant did kill the plaintiff’s husband by shooting him with a pistol, as charged in paragraph 2 of the petition, and by the filing of the amendment to the answer, specifically pleading justification, is to establish prima facie that said killing was unlawful, and that, if the plaintiff has proved sufficient facts or data from which the jury can form a reasonable estimate as to the value of the life of the said deceased, then such proof, together with said admission and said *696plea, would make out a prima facie case. ” This instruction is alleged to be error and harmful to the defendant under the pleadings in the case, for two reasons: (1) that the admission in the answer to paragraph 2 of the petition, and the admission in his plea of justification, whether standing separately or taken together, did not in law have the effect of establishing prima facie that the killing was unlawful, nor did the statements contained in said plea in law constitute an admission that the killing was prima facie unlawful; and (2) “that the effect of such plea of justification, either standing alone or taken along with the answer, when considered with the testimony of the plaintiff as to the amount of damages, did not amount to a prima facie case, for the plaintiff in the sense that the term prima facie’ case is used in the law. ” The defenderá contends that “ mere proof of damages by the plaintiff, without more, would have made out no [prima facie] ease, and that it was harmful error for the court to have coupled this proof of damage with a statement in the defendant’s plea of justification, and thereupon charged the jury as a matter of law that the admission of the unlawful killing by the defendant in his plea, considered with the proof of damage, would make out a prima facie case for the plaintiff; that, “ without proof in this case from which an unlawful killing would arise, the plaintiff would in no event have been entitled to have recovery; and that, therefore, the court supplied the proof that the plaintiff should have made, by telling the jury that the defendant had admitted that the killing was prima facie unlawful. ”
It cannot be said, nor did the judge charge, that the admission in the defendant’s plea had the effect of establishing what could be strictly called a complete prima facie case in favor of the plaintiff. The admission did not cover the amount of the damage. Under the provisions of section 4488 of the Civil Code (1910) this was not necessary, however, in order for the defendant to obtain the opening and conclusion by assuming the affirmative of the main issue under a plea of justification. This section of the code provides as follows: “In every case of tort, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification; by such plea ho admits the act to be done, and shall be entitled to all the privileges of one hold*697ing the affirmative of tlie issue; but'such plea shall not give to the defendant the right to open and conclude the argument before the jury, unless it is filed before the plaintiff submits any evidence to the jury trying the case. ” In actions ex contractu and in cases arising ex delicto; where the act complained of is not such as could be justified under the law, in order to obtain the opening and conclusion the defendant must admit a complete prima facie ease, and to do that lie must make such admissions as would, without more, prima facie entitle the plaintiff to recover in the amount sued for. Brunswick & Western R. Co. v. Wiggins, 113 Ga. 842 (2) (39 S. E. 551, 61 L. R. A. 513). In the instant case the judge did not state to the jury that the defendant had made such an admission as would, without more, prima facie entitle the plaintiff to recover in the amount sued for, but in substance he instructed them that the plaintiff would be entitled to recover such damages as she had proved, unless the defendant had carried Ms portion of the burden by showing that the admitted homicide, though presumed by law to be unlawful, was in fact justifiable. This, we think, is in clear accord with the recent ruling in Darby v. Moore, 144 Ga. 758 (5), 759 (87 S. E. 1067), in which the Supreme Court upheld as sound the following charge: “I charge you, gentlemen, that defendant having admitted by his pleadings the killing of O. G. Moore, and that the plaintiff is the widow of O. G. Moore, I charge you that the plaintiff would be entitled "bo recover damages for the slaying of her husband, unless it is shown to you that such killing was justifiable, or excusable, under the rules of law which will be hereafter given to you in charge. ”
Where the act which the defendant admits is one which as a matter of law is presumed to be unlawful, a prima facie presumption of its unlawfulness follows, not as an additional admission, but as a legal consequence;, and this result the defendant cannot escape by attaching to his admission of the act a plea of justification. This presumption of law is the thing which by his plea he proposes and assumes to disprove, and this it is incumbent upon him to do. He must show that, contrary to the legal presumption, the admitted act was in fact lawful. By his ¿dmission of the act charged, coupled with a plea of justification, he does not *698place himself out of court by himself admitting the unlawfulness of the act. This he in fact denies. The law raises the presumption, the actual truth of which the defendant denies.. The resulting legal inference is something which he cannot be heard to dispute; but since it is prima facie only, it is his privilege to deny and disprove its truth. It cannot be disputed that when the homicide is shown or admitted the law presumes malice, and it devolves upon the defendant to show justification. This the counsel for defendant do not, in their exceptionally able arguments, undertake to controvert. They do not deny that the defendant by his plea voluntarily assumed the burden of showing that the killing was justifiable. What they object to is the statement by the judge that, upon the admission of the act of killing, the law raised a mere prima facie presumption that it was unlawful. Their contention is that “no presumption or inference of the law will arise against him from such a plea, nor will he be held to have admitted even prima facie that the act, which he has voluntarily assumed to prove was a lawful act, was an unlawful act. This would be to put upon him the additional burden, not only of proving by his evidence that the alleged act was lawful, but of going to the jury handicapped by a solemn admission that his act, which he has assumed to show was lawful, was unlawful.” They argue that the rights of the defendant, under the quoted section of the code (§ 4488) are nullified by the charge that the 'effect of admitting the act of killing raises a prima facie presumption that the killing was unlawful, when the admission is coupled with the plea of justification. As we see it, there would be no burden for the defendant to assume, if, after admitting the killing, the law did not prima facie establish that such act was unlawful. The legal presumption is the very thing which the defendant finds it necessary to deny and disprove. It is not the existence, but the truth, of this presumption which the defendant under his plea of justification seeks to dispute. Nor, as we see it, does his plea of justification burden him with any admission that his act was unlawful. This he" denies. It is the law, not the defendant, which says that the admitted act shall be deemed unlawful until the contrary shall be shown; and this, under his plea, it is his privilege to disprove. The only burden which the defendant has assumed is the one which he seems to ad*699mit lie lias .assumed, to wit, the burden of showing that the killing was lawful. It is true that the provisions of section 4488, supra, give to a defendant pleading justification in an action of tort the right to the opening and conclusion by assuming the affirmative of the main issue, without admitting a complete prima facie case; but they do not give him such a privilege stripped of the attendant burden of carrying the onus which he thus actually assumes.
Judgment affirmed.
Stephens and Hill, JJ., concur.