sales to a minor and a person in the habit of getting intoxicated are governed by the same rules. When the seller, using due care, is deceived, but acting in good faith really believes that the person to whom he sells is of full age, while the fact is otherwise, he does not violate the statute. He may show in his justification that the person being unknown to him, looked like an adult and was treated and spoken of by members of his family and the community as of full age.1

We think in such case it would be competent to go a step further and show that he made inquiry of the minor's parents, or other persons likely to know as to his age, and was told by them that he was of full age. It would be competent for the defendant to show this by his own testimony and that of those of whom he made the inquiry. This principle applies as well to the case of the person in the habit of getting intoxicated as to the minority, the condition being that the inquiry, to be of value, should be made of persons so situated in relation to the fact to be proved as to be able to give the information sought.

To make such testimony available as tending to exculpate the defendant he must have acted in good faith and with due care. We are considering the competency of such testimony only, and not 'the effect to be given to it, that is to be left to the jury. But Mr. Bishop, in his work above named,2 says:

"And when this good faith and this due care do exist, and there is no fault or carelessness of any kind, and what is done is such as would be proper and just were the fact what it is thus honestly believed to be, there is no principle known to our criminal jurisprudence by which this morally innocent person can be condemned because of the existence of a fact which he did not know and could not ascertain. On the other hand, to condemn him would be to violate those principles which constitute the very foundation of our criminal jurisprudence. Honest error of a fact is as universal an excuse for what would be otherwise a criminal act as insanity."

This may be strong, but is a just statement of the excusing principle in our criminal jurisprudence. It shows the necessity of allowing a person accused of knowingly violating the law to prove on the trial the pains he took to ascertain the truth about the fact or transaction that would, if knowingly done, criminate him, as well as the further necessity of allowing him to give in evidence the nature and extent of the information thus obtained, and upon which he claimed to have acted. Acting on the principle of presumptive innocence, and absence of guilty knowledge, the defendant in Commonwealth v. Bradford,3 was permitted

to show that he had sought information from persons whom he supposed knew, as to his right to vote. He was charged with voting, knowing himself not to be qualified to vote. The court held "evidence that the party consulted counsel as to his right to vote, and submitted to them the facts of his case, and was advised by them that he had the right, is admissible in his favor on the trial of an indictment against him for willfully voting, knowing himself not to be a qualified voter, but not conclusive evidence that he did not know that he was not a qualified voter."

A different doctrine has been held in some of the States. We think this the better rule. It allows ignorance or mistake of facts to go in excuse, when an honest effort has been made and due care used to obtain correct information on which to act.

The principle may be thus stated: In prosecutions under section 3 of the act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio, defendant may show, by his own and other persons' testimony, that shortly anterior to the time of the alleged unlawful sale he made inquiry of persons well acquainted with the person named in the indictment, as a person in the habit of getting intoxicated, whether he was a person in the habit of getting intoxicated; and also show what information he obtained from such persons; his good faith and due care in seeking and obtaining such information, as well as the proper effect thereof, to be left to the jury under all the circumstances.

Judgment reversed, and cause remanded to the Court of Common Pleas for further proceedings.

MISTAKE OF FACT-PERMITTING MINOR TO PLAY BILLIARDS.

STERN V. STATE.

[53 Ga. 229.]

In the Supreme Court of Georgia, July Term, 1874.

Mistake of Fact - Age of Person - Billiard Playing. · -A statute imposed a penalty on the keepers of billiard rooms who permitted minors to play therein, without the consent of their parents and guardians. S. allowed T. to play in his saloon, believing T. to be of age. Held, that if S. honestly thought T. to be of age, he was not guilty thought the fact was otherwise. Held, further, that S. was not absolutely required to make inquiry of the parent or guardian of T.

Tried before Judge RICE, Clarke Superior Court. February Term,

Myer Stern was tried at the November term, 1873, of the County Court of Clarke County, for the offence 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 defence 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 on 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, W. B. Thomas, for the State.

McCoy, J. 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 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 this 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 cir

cumstances and the nature of the case.

But if he does this, and the evidence shows 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 his offence, 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 their 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 beavy weight from the top of the 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 he 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.

MISTAKE- MANSLAUGHTER - ERRONEOUS BELIEF AS TO POWER OF PRAYER-NEGLECT TO SUPPLY MEDICAL ATTENDANCE TO CHILD.

R. v. WAGSTAFFE

[10 Cox, 530.]

Before Mr. Justice WILLES, London, 1868.

The Prisoners, Man and Wife, Believing that God would heal their sick child by prayer, refused to call in medical attendance, whereby the child died. Held, that they were not guilty of manslaughter.

The prisoners, Thomas and Mary Ann Wagstaffe were indicted for the manslaughter of Lois Wasgtaffe, their child, by neglecting to provide for it proper medical attendance.

Metcalfe, for the prosecution.

The prisoners were undefended.

Metcalfe stated that the deceased child was very young, and had been ill for some time. It had always been delicate, especially in the region of the lungs; and, in its last illness, the defendants, instead of calling in a doctor, anointed it two or three times and prayed to the Lord. These were times of toleration, and any one was entitled to entertain any opinions he chose on the subject of religion; but they should be confined to matters of religious faith, and not go to the extent, for instance, of starving a child. The defendants belonged to a sect calling themselves "Peculiar People," one of whose tenets was not to call in a surgeon in cases of illness, but to trust to Providence. In this case no

doctor was called in, and the child having eventually died, the question for the jury would be whether the defendants contributed to the death or to the acceleration of the death.

Fanny Hadley knew the deceased child. It was fourteen months old. The child's Christian name was Lois, and she had known it from its birth. It was always very delicate, and coughed a good deal. The elders were called in on a Sunday in consequence of the child becoming worse, and they anointed the child's breast with oil, where the pain was, and offered up prayers to the Lord. She thought the brethren prayed over the oil before it was used. The child became a little better after that. From witness' experience in her own case she believed the anointing did good. The child became worse, and four elders were called in, two of them from the branch church in Essex. They again anointed it. Her parents gave it barley water, new milk, corn flour, port wine, and gruel, and occasionally a little weak brandy and water. The last thing given to it before it died was a little weak brandy and