Stern v.
State
53 Ga. 229 (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 six months 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.
MCCAY, Judge.
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.
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 burglar, is not guilty of any crime, surely one who
permits a minor to play billiards without the consent of the parent, under the
honest belief that he is not a minor but of full age, is not guilty. In both
cases, however, to excuse the guilt there must be no want of proper caution on
the part of the accused. He must have used due diligence, according to the
circumstances and the nature of the case. But if he do
this, and the evidence show that after such caution he is still honestly
mistaken, he is not guilty. We are not prepared to say that the evidence here
is conclusive of an honest mistake. We do not say that the defendant was
bound to have inquired of the parent. That would depend on his accessibility,
and on the strength of the other circumstances indicating full age. It is
impossible to lay down any general rule. Each case must depend on its own
nature and circumstances. From the very nature of this offense special
diligence is necessary. Everybody knows that there is uncertainty in such
cases, and as the law has made the age of any billiard-player important, even
in spite of this liability to mistake, every saloon keeper should act in view
of the fact that he is dealing with an uncertain thing. The man who throws a
heavy weight from the top of a building is bound to a greater caution if he
does it in a city or town, and into a street, than if he does it in the
country, and into a little traveled road. As we have said, we do not think this
evidence establishes conclusively that the defendant was honestly mistaken. We
incline to the opinion of Judge Rice that there is some evidence to justify the
finding, and had this conviction been by the verdict of a jury, under a legal
charge as to the law, we should hesitate to disturb it. But the record shows
the county judge did not consider the question of intention; he acted on the
idea, that as the proof was clear of minority, the law had been violated, whatever
might have been the honest opinion of the defendant. He held him to be bound to
inquire of the parent--nay, on the general rule be acted on, he, perhaps, would
have found him guilty if he had inquired of the parent--had the parent, either
by mistake, or untruthfully, answered that the son was of age. It appears,
therefore, that on the trial of this case, the judge, who acted as judge and
jury, mistook the law, did not consider the evidence going to show an honest
mistake, after due caution, and we send the case back to be tried again under a
proper view of the law, to-wit: the defendant is not guilty, if, under all the
circumstances, he honestly thought the young man not to be a minor, and the
diligence required is that reasonable diligence which, in view of the nature of
the case, a good citizen and prudent man would use.
Judgment reversed.