Stern v. The State Of Ga.
| Decision Date | 31 July 1874 |
| Citation | 53 Ga. 229 |
| Parties | MyERS Stern, plaintiff in error. v. The State of Georgia, defendant in error. |
| Court | Georgia Supreme Court |
Criminal law. Mistake. Minors. Before Judge Rice. Clarke Superior Court. February Term, 1874.
Myers Stern was tried at the November term, 1873, of the county court of Clarke county for the offense of allowing a minor, Frank Talmadge, to play at billiards without the consent of his parent or guardian. The evidence made out a prima facie case for the state, but for the defense it was shown that Stern, before allowing Talmadge to play on his table, had inquired as to his age and had been informed by said minor *that he was an adult; that he appeared to be over twenty-one years of age, and that he was, in fact, within sixmonths of maturity at the time that he indulged in the aforesaid game.
The county court refused to consider this testimony, holding that upon proof of the playing of the game with the knowledge of the defendant, of the minority of Talmadge, and of the absence of the consent of his parent or guardian, conviction was the inevitable result.
The case was carried by certiorari to the superior court, where the judgment of the county court was affirmed, and defendant excepted.
T. W. Rucker, for plaintiff in error.
Emory Speer, solicitor general, by W. B. Thomas, for the state.
1. We agree with the counsel for the plaintiff in error that the county judge did not take a proper view of the law on the trial. To make a crime, there must be the union of act and intent, or there must be criminal negligence. It is not conclusive evidence of guilt on the part of the defendant that he permitted this young man to play at his table; that the young man was, in fact, a minor, and that the parent did not consent. These facts, it is true, make a prima facie case, and if they stood alone, the guilt of the defendant would be manifest; but evidently there was evidence of another element in the case, which, by the return of the county judge, is shown not to have been considered by him in arriving at his conclusion. There was evidence going to show that the defendant might have been honestly mistaken as to the age of the young man. It is clear to us that if the defendant, after due diligence, thought honestly that this young man was not a minor, he is not guilty. If he did so think, after proper inquiry, the element of intent does not exist; the act was done under a mistake of fact. In such a case, there is no guilt and no *crime. This is the doctrine of all the books, and is, besides, common sense and common justice.
2. Nor is there anything in the nature of this offense which alters the rule. If one who shoots down his dearest friend by mistake, supposing him to be a dangerous wild beast or a...
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