1. When the action is by a widow for the homicide of her husband, the failure to allege a prosecution for the homicide as a crime is amendable; and if one of the defendant’s pleas, found in the record, admit the prosecution, there is no occasion for the plaintiff to prove it.
2. If in resisting a battery, the assailant be wilfully slain, his widow may recover damages, unless the homicide is justifiable. If it amount either to murder or voluntary manslaughter, it is a cause of action. The aggressive conduct of the deeased, and his unlawful violence, will go in mitigation of damages.
3. In charging the jury, the judge may state what either party admits or contends for ; and the statement, when insisted upon as error, will be taken to refer to what transpired *563at the trial in open court, and to be true, unless it be otherwise represented in the bill of exceptions — 56 Ga., 365.
4. The verdict is warranted by the evidence, as well in respect to the plaintiff’s being the widow of the deceased, as to all other material matters.
Judgment affirmed.