27 Ga. App. 693 | Ga. Ct. App. | 1921
(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
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
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
Judgment affirmed.