Honest belief that act was lawful is no defense unless knowledge is element of offense.

- While a person may honestly believe a thing and yet not know it, an honest belief will not avail one who has committed an act in violation of a criminal statute, unless knowledge is made a part of the offense, so that scienter must be proved by state, and thus burden is on state to prove guilty knowledge. Tant v. State, 158 Ga. App. 624, 281 S.E.2d 357 (1981).

Defendant's belief did not constitute mistake of fact.

- Defendant's belief that the victim was not in the trajectory of the bullet when the defendant intentionally fired the weapon at a third party does not constitute the type of mistake of fact that would serve as a defense to malice murder or other crimes. Allen v. State, 290 Ga. 743, 723 S.E.2d 684 (2012).

Mistake induced by fault or negligence of the party doing the wrongful act does not constitute a defense to a criminal charge. Baise v. State, 232 Ga. App. 556, 502 S.E.2d 492 (1998).

Mistake is a defense where mistake negates mental state.

- Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime. Jones v. State, 263 Ga. 835, 439 S.E.2d 645 (1994).

Mistake due to fault not valid defense.

- Defendant's mistaken belief that the victim was a turkey was due to defendant's own fault in taking an unsafe shot under unsafe conditions at a target that defendant had not positively identified as legal game; accordingly, the jury was authorized to reject defendant's mistake of fact defense. Hines v. State, 276 Ga. 491, 578 S.E.2d 868 (2003).

Condonation by forgery victim after the crime occurs is not an acceptable defense. Pratt v. State, 167 Ga. App. 819, 307 S.E.2d 714 (1983).

Cited in Porter v. State, 122 Ga. App. 658, 178 S.E.2d 283 (1970); McClendon v. State, 231 Ga. 47, 199 S.E.2d 904 (1973); Treadwell v. State, 129 Ga. App. 573, 200 S.E.2d 323 (1973); Hess v. State, 132 Ga. App. 26, 207 S.E.2d 580 (1974); Carter v. State, 232 Ga. 654, 208 S.E.2d 474 (1974); Jordon v. State, 232 Ga. 749, 208 S.E.2d 840 (1974); Nichols v. State, 133 Ga. App. 717, 213 S.E.2d 20 (1975); Corder v. State, 134 Ga. App. 316, 214 S.E.2d 404 (1975); Johnson v. State, 142 Ga. App. 526, 236 S.E.2d 493 (1977); Childers v. State, 145 Ga. App. 594, 244 S.E.2d 108 (1978); Smith v. State, 148 Ga. App. 634, 252 S.E.2d 62 (1979); High v. State, 153 Ga. App. 729, 266 S.E.2d 364 (1980); Davis v. State, 153 Ga. App. 847, 267 S.E.2d 263 (1980); Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309 (1980); Powell v. State, 154 Ga. App. 568, 269 S.E.2d 70 (1980); Ellison v. State, 158 Ga. App. 419, 280 S.E.2d 371 (1981); Morgan v. State, 161 Ga. App. 67, 288 S.E.2d 836 (1982); Curry v. State, 162 Ga. App. 71, 290 S.E.2d 179 (1982); Hobgood v. State, 162 Ga. App. 435, 291 S.E.2d 570 (1982); Chapman v. State, 164 Ga. App. 662, 297 S.E.2d 322 (1982); Diggs v. State, 170 Ga. App. 48, 316 S.E.2d 171 (1984); McIlhenny v. State, 172 Ga. App. 419, 323 S.E.2d 280 (1984); Pitts v. State, 184 Ga. App. 220, 361 S.E.2d 234 (1987); Banks v. State, 184 Ga. App. 504, 362 S.E.2d 227 (1987); Bowman v. State, 186 Ga. App. 544, 368 S.E.2d 143 (1988); Hayes v. State, 193 Ga. App. 33, 387 S.E.2d 139 (1989); Broomall v. State, 260 Ga. 220, 391 S.E.2d 918 (1990); Sims v. State, 197 Ga. App. 214, 398 S.E.2d 244 (1990); Williams v. State, 221 Ga. App. 296, 471 S.E.2d 258 (1996); Crawford v. State, 267 Ga. 543, 480 S.E.2d 573 (1997); Floyd v. State, 319 Ga. App. 564, 737 S.E.2d 341 (2013); Murray v. State, 335 Ga. App. 634, 782 S.E.2d 694 (2016), cert. denied, No. S16C0916, 2016 Ga. LEXIS 435 (Ga. 2016).

Charge on mistake of fact not warranted.

- Failure to give a charge on mistake of fact is not error when the evidence shows that a party has made a mistake of law. Turner v. State, 210 Ga. App. 303, 436 S.E.2d 229 (1993); Taylor v. State, 233 Ga. App. 221, 504 S.E.2d 57 (1998).

Defendant was not entitled to a mistake of fact instruction in defendant's prosecution for burglary, with theft by taking as the underlying felony, when defendant testified that the "mistake" was in misunderstanding the attorney's advice, which led defendant to believe that it was lawful to remove and sell personal property from a trailer belonging to the victim to repay a debt allegedly owed to the defendant by the victim, but such mistake was one of law and not of fact. Randall v. State, 234 Ga. App. 704, 507 S.E.2d 511 (1998).

Since defendant's own testimony indicated that defendant's misapprehension of fact was the result of defendant's own fault or negligence in committing the burglary and kidnapping, the trial court correctly refused to give an instruction of "mistake of fact" under O.C.G.A. § 16-3-5. Wilson v. State, 241 Ga. App. 773, 527 S.E.2d 623 (2000).

When defendant's testimony at trial, which was the only evidence of defendant's defense, was that the elderly victim from whom defendant took a check for a large sum was competent to make a gift of the check and had done so, such evidence did not raise a mistake of fact; thus, the trial court properly refused to instruct the jury on mistake of fact as a defense to the charge that defendant committed theft by taking the check. Hall v. State, 258 Ga. App. 156, 573 S.E.2d 415 (2002).

Trial court did not err in declining to give the defendant's requested instruction on mistake of fact, as the facts of the defendant's burglary case did not show that such an instruction was warranted; the evidence showed that the defendant never attempted to verify the spouse's claim that some unidentified person stated that they were abandoning property in the other person's storage unit from which the defendant took property the defendant was not authorized to take, and, thus, the defendant and the spouse at best were negligently acting on the basis of speculative information when the defendant took the property. Lummus v. State, 274 Ga. App. 636, 618 S.E.2d 692 (2005), overruled on other grounds, McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008).

In criminal trial on a charge of trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e), the trial court did not err when it did not sua sponte instruct the jury on the affirmative defense of mistake of fact under O.C.G.A. § 16-3-5, as defendant's mistaken belief that the bag that defendant delivered contained marijuana rather than methamphetamine, did not justify delivery of the package in any event. Dimas v. State, 276 Ga. App. 245, 622 S.E.2d 914 (2005).

Mistake of fact defense was not applicable because the defendant did not admit participation in the murder and, in fact, denied any involvement. Murphy v. State, 280 Ga. 158, 625 S.E.2d 764 (2006).

In a murder prosecution, a defendant was not entitled to a charge on mistake of fact, under O.C.G.A. § 16-3-5, because the defendant admitted that the defendant could not see anything when the defendant shot blindly at an unidentified noise, so any mistake of fact on the defendant's part as to the identity of the intended target was solely the result of the failure to identify the source of the noise before firing. Gabriel v. State, 280 Ga. 237, 626 S.E.2d 491 (2006).

In a murder prosecution, the fact that the defendant testified to a belief that the defendant was required to defend himself because the victim was about to drag the defendant down the street with a truck did not entitle the defendant to a mistake of fact defense under O.C.G.A. § 16-3-5, because the trial court gave a complete charge on the principles of law relating to the asserted defenses of justification and self-defense. Bell v. State, 280 Ga. 562, 629 S.E.2d 213 (2006).

With regard to the defendant's conviction for criminal attempt to commit child molestation and related crimes, the trial court did not err in refusing to instruct the jury on mistake of fact because the affirmative defense did not apply since the intended victim told the defendant that the victim was underage and, having been made aware of that fact, the defendant nevertheless continued the contact, engaging the intended victim in sexually explicit conversations and arranging to meet for a sexual encounter. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).

Trial court did not err in failing to charge the jury on mistake of fact as the defense to burglary; the defendant believed the defendant could enter the house with impunity because the house was for sale was based on mistake of law rather than mistake of fact. Stillwell v. State, 329 Ga. App. 108, 764 S.E.2d 419 (2014).

Defense of mistake of fact was not reasonably raised by the evidence when the victim's physical resistance ended and the victim's demeanor changed after being brutally beaten with a baseball bat, threatened at gunpoint, dragged bleeding through a house, ruthlessly bound to a bed, beaten with the bat again after resisting, and lacerated with a box cutter while the victim's clothes were forcibly removed, all while the defendant kept a handgun nearby and repeatedly verbally berated the victim. Franklin v. State, 335 Ga. App. 557, 782 S.E.2d 461 (2016).

Charge on mistake of fact warranted.

- Because a defendant's evidence that the defendant acted under a misapprehension of fact in entering a house would have authorized the jury to acquit the defendant of burglary under O.C.G.A. § 16-7-1(a), and because the charge that was given did not properly inform the jury about the true nature of the defendant's affirmative defense, the defendant was entitled to a charge on mistake of fact under O.C.G.A. § 16-3-5. Price v. State, 289 Ga. 459, 712 S.E.2d 828 (2011).

Trial court did not err in refusing to charge mistake of fact since the jury did not find justifiable homicide but found criminal intent comprising voluntary manslaughter, necessarily precluding any possibility that appellant could have been acquitted for mistake of fact. Williams v. State, 162 Ga. App. 663, 292 S.E.2d 531 (1982).

Trial court did not err in refusing to charge mistake of fact where the asserted mistake of fact concerned whether the victim was armed and, thus, whether the defendant was justified in shooting first in self-defense where the trial court gave a full charge on self-defense. Ellis v. State, 174 Ga. App. 535, 330 S.E.2d 764 (1985).

There was no error in failing to charge on a lesser included offense where the defendant made a specific written request for a lesser included offense instruction on mistake of fact. Taylor v. State, 195 Ga. App. 314, 393 S.E.2d 690 (1990).

In a prosecution for shoplifting, the trial court did not err in refusing to charge mistake of fact where there was no evidence showing that defendant believed the merchandise in defendant's possession had been paid for by defendant's companion. Darty v. State, 232 Ga. App. 814, 503 S.E.2d 76 (1998).

Trial court's refusal to charge the jury on misapprehension of fact or mistaken belief was not error because, even though the defendant may have been mistaken about the purpose of the intrusion into the victim's house, the defendant's mistaken impression did not justify breaking into the house and attempting to rob its inhabitants; thus, defendant's requested charge was not adjusted to the evidence. Taylor v. State, 272 Ga. 744, 534 S.E.2d 67 (2000).

Trial court did not err in refusing to charge mistake of fact since defendant's defense was not a mistake of fact but was a denial of committing the crime alleged. Harden v. State, 239 Ga. App. 700, 521 S.E.2d 829 (1999); Davis v. State, 249 Ga. App. 579, 548 S.E.2d 678 (2001).

When the defendant was prosecuted for serving alcohol to a minor, under O.C.G.A. § 3-3-23(a)(1), it was not error for a trial court to refuse to give defendant's proffered instructions on the requirement to prove defendant's knowledge of the age of the person to whom alcohol was served or on mistake of fact because the jury was instructed, inter alia, on the requirement that defendant knowingly served alcohol to a minor, and, pursuant to O.C.G.A. § 3-3-23(h), that, when a reasonable person could reasonably be in doubt as to whether a person to whom alcohol was served was 21 years old or older, it was a defendant's duty to request identification and that defendant's failure to do so could be considered in determining if defendant knowingly furnished alcohol to a minor. Butler v. State, 298 Ga. App. 129, 679 S.E.2d 361 (2009).

Trial court did not err in refusing to give a defendant's requested charge on mistake of fact in defense to a charge of sexual battery based on the defendant's testimony that the defendant believed that the victim was 19 rather than 12 when the defendant performed oral sex on the victim, because the defendant denied committing the acts that constituted sexual battery. The defendant could not deny committing an act while claiming to have committed the same act by mistake. Disabato v. State, 303 Ga. App. 68, 692 S.E.2d 701 (2010).

Trial court did not err in failing to charge the jury on the defense of mistake of fact under O.C.G.A. § 16-3-5 as to the burglary counts of the indictment because the fact that the defendant could have thought that someone lived in the home did not constitute the type of mistake of fact that would serve as a defense to the defendant's unauthorized entry into the home since the evidence was uncontroverted that the defendant was not invited into the home. Boatright v. State, 289 Ga. 597, 713 S.E.2d 829 (2011).

Trial court did not err by failing to give the defendant's requested jury charge on the defense of mistake of fact, pursuant to O.C.G.A. § 16-3-5, because the charge was not authorized by the evidence as the evidence did not show that the defendant was working as a confidential informant at the time when drugs were found in an inventory search of the defendant's vehicle before the impoundment of the vehicle for the defendant not having a driver's license and insurance for the vehicle. Ahmad v. State, 312 Ga. App. 703, 719 S.E.2d 563 (2011).

Trial court did not err by denying the defendants' requests to instruct the jury on the affirmative defense of mistake of fact because the defendants' insistence that the defendants' testimony was not false certainly did not support a mistake of fact charge; and, if the defendants' memory was faulty or the defendants somehow misunderstood the actual events, such mistakes were superinduced by the defendants own fault or negligence. Marlow v. State, 339 Ga. App. 790, 792 S.E.2d 712 (2016).

When mistake is a material issue, charge on subject is required even absent request. Henderson v. State, 141 Ga. App. 430, 233 S.E.2d 505 (1977).

Charge on mistake of fact mandatory where it constitutes sole defense.

- When the mistake of fact was the defendant's sole defense and excuse, failure to give charge on subject, even without request, was error. Arnold v. State, 157 Ga. App. 714, 278 S.E.2d 418 (1981).

Charge mandatory even if other defenses asserted.

- Failure to give a mistake-of-fact charge may constitute reversible error when that defense is the defendant's sole defense; however, it is not reversible error when the defendant asserts another defense at trial. Adcock v. State, 260 Ga. 302, 392 S.E.2d 886 (1990).

When defendant pursued other defenses of good character and misfortune or accident, and the incident as portrayed by defendant's witness, rather than raising the spectre of misapprehension of fact, raised the possibility of accident, which principle was charged, the trial court's refusal to charge O.C.G.A. § 16-3-5 under the circumstances presented no basis for reversal. Laymac v. State, 181 Ga. App. 737, 353 S.E.2d 559 (1987).

Inasmuch as the appellant's defense was based on justification and self-defense, and inasmuch as the trial court gave a full jury charge with respect thereto, the appellant was not entitled to a charge on mistake of fact under O.C.G.A. § 16-3-5. Pullin v. State, 257 Ga. 815, 364 S.E.2d 848 (1988).

Charge on sole defense of mistake need not be given unless authorized by evidence.

- While the trial court is required to charge on the criminal defendant's sole defense of mistake of fact, even absent request to do so, such charge is not required where it is not authorized by evidence. Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980).

Misapprehension of officer's right to enter house one of law rather than fact.

- In prosecution for obstruction of a law enforcement officer, where defendant was aware that police were attempting to enter defendant's home to arrest another individual, and defendant's only concern was whether the officer had lawful authority to enter the house to apprehend the subject, this constituted a misapprehension of the law rather than one of fact, thus, a charge on O.C.G.A. § 16-3-5 was not warranted. Brown v. State, 163 Ga. App. 209, 294 S.E.2d 305 (1982).

Defendant's misapprehension over victim's possession of weapon.

- In a prosecution for aggravated assault, because the trial court charged the jury on justification, self-defense, misfortune, and accident, the defendant's contention that a charge on mistake of fact was warranted because defendant mistakenly believed that a cordless telephone carried by the victim was a gun was not valid. Free v. State, 245 Ga. App. 886, 539 S.E.2d 213 (2000).

Defense counsel did not provide ineffective assistance of counsel by failing to request a charge of mistake of fact under O.C.G.A. § 16-3-5 as the charge was not supported by the evidence as the defendant testified that the defendant was totally unaware of any of the codefendants' plans for breaking or entering the house; thus, the defense was a lack of knowledge of the crime, not that the defendant knew they had broken into the victim's house, but believed that they were authorized to do so, and the trial court charged the jury on mere presence, mere association, and the requirement that the state prove beyond a reasonable doubt that the defendant knew that a crime was being committed. Botelho v. State, 268 Ga. App. 129, 601 S.E.2d 494 (2004).

Requested instruction should have been given.

- In defendant's trial on a charge of armed robbery, in violation of O.C.G.A. § 16-8-41, the trial court should have provided the jury with a requested instruction on mistake of fact pursuant to O.C.G.A. § 16-3-5, as defendant's knowledge of a plan or intent to rob was a material element of the charge and there was evidence that might have supported defendant's version of events. Windhom v. State, 315 Ga. App. 855, 729 S.E.2d 25 (2012).

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 153.

C.J.S.

- 22 C.J.S., Criminal Law, § 127.

ALR.

- Reliance upon advice of counsel as affecting criminal responsibility, 133 A.L.R. 1055.

Relief to owner of motor vehicle subject to state forfeiture for use in violation of narcotics laws, 50 A.L.R.3d 172.

Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Mistake or lack of information as to victim's age as defense to statutory rape, 46 A.L.R.5th 499.