have violated the statute, notwithstanding the fact that no actual disturbance broke out, since the urging of the crowd to defy the law tended clearly to provoke an outbreak.

And under a statute which provided that any person who wilfully and wrongfully commits any act which seriously disturbs or endangers the public peace is guilty of a misdemeanor, it was held in People v. Wallace (1903) 85 App. Div. 170, 17 N. Y. Crim. Rep. 432, 83 N. Y. Supp. 130, that where representatives of a Socialist Labor party held a meeting at the intersection of two principal streets, blocking the streets, without a permit from the police department, and the police, upon finding the streets blocked, ordered them to cease speaking, and upon their refusal to do so arrested them, there was sufficient evidence for the jury to find that the defendants were guilty of a breach of the peace under this section.

In State, Anderson, Prosecutor, v. Camden (1890) 52 N. J. L. 289, 19 Atl. 539, it was held that a complaint that a person applied to another an indecent epithet at the latter person's residence did not charge a violation of an ordinance of Camden city, providing for the conviction of all persons who shall make, aid, countenance, or assist in making, any improper noise, riot, disturbance, or breach of the peace on the streets, or highways, or elsewhere within the city, and that the word "elsewhere" must be regarded as signifying places ejusdem generis, namely, parks, squares, and places frequented by the public. The court said:

"And the act itself set forth must appear to be such as, by reason of its noisy, riotous character, or its disturbing or indecent features, amounts to a breach of the peace."

d. As disorderly conduct. The use of opprobrious language. has been punished as disorderly conduct.

Thus, if the language of the defendant, considering the time and place, was calculated to produce disorder and to disturb that quiet and peace which society is entitled to enioy. it was un

lawful, notwithstanding that there was no proof that anyone was disturbed, and a neighbor of the accused testified that he was not disturbed. State v. Byrnes (1915) 100 S. C. 230, 84 S. E. 822.

And to call another a "damned highway robber" in a public restaurant, in a violent and abusive manner and in a voice so loud that it could have been heard on the street, was held violative of an ordinance against disorderly conduct, notwithstanding the profane expression was uttered but a single time. State v. Sherrard (1895) 117 N. C. 716, 23 S. E. 157.

So, calling a council member at a public session a "bootlegger" was held to constitute disorderly conduct within the meaning of the statute, in Re Kirk (1925) — N. J. L. —, 130 Atl. 569, since it was in effect a charge that the council member was a criminal, the court being of the opinion that the use of the term "souphead" would not constitute disorderly conduct.

And see People ex rel. Gegan v. White (1914) 31 N. Y. Crim. Rep. 353, 152 N. Y. Supp. 887, holding that a person who interrupted religious services by attempting to address the pastor conducting them, on a matter of debating social questions, was guilty of disorderly conduct tending to a breach of the peace.

And where the defendants spoke the following words to a police officer in the proper performance of his duty, "Where the hell do you get off to tell us what to do? We'll do as we like; we don't care what you say," it was held in People v. Fenton (1917) 102 Misc. 43, 168 N. Y. Supp. 725, that the language under the circumstances was disorderly conduct tending to a breach of the peace.

In the syllabus opinion in Whitten v. Savannah (1921) 26 Ga. App. 377, 106 S. E. 302, it was held that a charge of disorderly conduct in violation of the ordinances of the city of Savannah would be sustained, where the evidence authorized the jury to find that the accused, at night, at her home, cursed police officers who had called

her to her door to make inquiries of her about matters in their line of duty, where the accused also slammed the door of her house and ordered them away.

So, in State v. Byrnes (S. C.) supra, under a charge of disorderly conduct, in holding that the fact that defendant uttered profane and boisterous language within his own house did not alter the case, the court said: "The 'castle' is given to a man for defense, and not for offense. It would be a hurtful and unreasonable doctrine to hold that a man may utter profanity of a loud and boisterous nature from his own storeroom, and yet not be amenable to the public therefor. If the utterer does remain in the room the utterance does not; and it is the offense."

However, in Cherry v. State (1912) 103 Miss. 225, 60 So. 138, holding that an indictment under which the defendant was convicted of disorderly conduct, which failed to charge that the language was unlawfully used, was clearly defective, the court said: "The indictment does not charge that the language was unlawfully used, but merely charges the defendant with using the obscene language at the place named, and in the presence and hearing of a female. The mere uttering of the words is not a violation of the law, and it is easy to conceive that under certain circumstances the defendant might have used the alleged language at the place laid in the indictment, and in the presence of a woman, without violating the statute. There may be cases where the mere setting out of the act done would necessarily constitute a crime, but it cannot be said that the mere uttering of the words alleged to have been employed by appellant was unlawful, and we are of opinion that the demurrer should have been sustained."

And while it must be shown, under the express provisions of § 720 of the New York penal law relating to disorderly conduct, that someone was annoyed, where it was shown that vile language was used on Sunday, in the presence of women and children, the jury can reasonably infer that such

language annoyed them. People v. Bevins (1911) 74 Misc. 377, 134 N. Y. Supp. 212, affirmed without opinion in (1912) 149 App. Div. 935, 134 N. Y. Supp. 1141.

And under a charge that the defendant used threatening, abusive, and insulting behavior with intent to provoke a breach of the peace, and whereby a breach of the peace might have been occasioned, where it appeared that the defendant had police permission to speak, and in his speech advocated the repeal of the penal law which prohibits the giving of information concerning birth control, the court, while realizing that under certain circumstances and at certain times language may amount to disorderly conduct, did not consider the evidence sufficient to sustain a conviction on the ground that the language used was offensive. The court said: "It is within the rights of a citizen to advocate the repeal of an existing law and to state his reasons for advocating such repeal. In such advocacy, however, he must not use language which is calculated to, and may, give such offense as to produce a breach of the peace, and must proceed in an orderly and decorous manner, so as not to cause a breach of the peace." People v. Swasey (1920) 180 N. Y. Supp. 629.

And proof that the defendant refused to cease talking when commanded by an officer to do so, and that he insisted on his right to be heard notwithstanding the official authority of the policeman, in the absence of any proof that he used abusive or insulting language, does not constitute sufficient evidence for conviction, under a statute penalizing disorderly conduct tending to a breach of the peace. People v. Kahn (1922) 40 N. Y. Crim. Rep. 190, 203 N. Y. Supp. 594.

And see People v. Pack (1923) 200 N. Y. Supp. 314, apparently decided under this same statute, which holds that a drug clerk, who stated to police officers, who in plain clothes were searching the store in search of intoxicating liquor, that he did not believe they were officers, was not guilty of disorderly conduct tending to a

breach of the peace. The court said: "Argument by temperate speech on the part of the appellant, without show or threat of physical violence, against the propriety of the officers' proceedings, even though such argument extended to expression of doubt of the truth of the claim of official authority, was neither a crime nor an offense of a criminal nature."

e. As nuisance.

In the following cases, the use of opprobrious language has, under certain circumstances, been considered a nuisance: Com. v. Smith (1850) 6 Cush. (Mass.) 80; Com. V. Oaks (1873) 113 Mass. 8; State v. Kirby (1809) 5 N. C. (1 Murph.) 254; State v. Ellar (1827) 12 N. C. (1 Dev. L.) 267; State v. Jones (1848) 31 N. C. (9 Ired. L.) 38; State v. Pepper (1873) 68 N. C. 259, 12 Am. Rep. 637; State v. Powell (1874) 70 N. C. 67; State v. Barham (1878) 79 N. C. 646; State v. Brewington (1881) 84 N. C. 783; State v. Chrisp (1881) 85 N. C. 528, 39 Am. Rep. 713; State v. Graham (1855) 3 Sneed (Tenn.) 134; Gaines v. State (1881) 7 Lea (Tenn.) 410, 40 Am. Rep. 64; State v. Steele (1871) 3 Heisk. (Tenn.) 135; Young v. State (1882) 10 Lea (Tenn.) 165.

Thus, in Com. v. Oaks (1873) 113 Mass. 8, it was held that evidence of loud, profane, and obscene outcries on one of the public highways late at night was sufficient to support an indictment for a public nuisance, in which case it would be sufficient to prove that the acts were of such a nature as to tend to annoy all good citizens, and did in fact annoy anyone present and not favoring them.

And it was held in State v. Kirby (1809) 5 N. C. (1 Murph.) 254, that, although profane swearing, of itself, and independent of the disturbance and injury which it may cause to those who hear it, may not form the subject of an indictment, it is cognizable before a justice of the peace whenever the bill charges the swearing as nuisance, and there is evidence to satisfy the jury that it has produced that effect.

a

Under this view it has been held that language could not be a nuisance

unless it was uttered in the presence of other persons, whose presence would make any place, for the occasion, public. Young v. State (Tenn.) supra.

In State v. Barham (1878) 79 N. C. 646, it was held that, in order for an indictment of profane swearing as a nuisance to be sufficient, first, it must allege that the offense was committed in the presence and hearing of divers persons; second, that it was to the common nuisance of all good citizens; third, that the acts were so repeated in public as to become an annoyance and inconvenience to the public; and fourth, it is necessary to set out the profane words in order that the court may decide as to their quality.

And a single utterance of a profane word, in the absence of peculiar circumstances, will not justify an indictment under the theory that the act of profanity constituted a nuisance. Gaines v. State (1881) 7 Lea (Tenn.) 410, 40 Am. Rep. 64; State v. Jones (1848) 31 N. C. (9 Ired. L.) 38.

So, in Com. v. Smith (Mass.) supra, an indictment charging certain persons with contriving and intending to disturb the peace of the commonwealth, who on one of the public streets and in other public places of the town uttered loud exclamations and outcries, and other loud noises, which drew together a number of persons, to the great disturbance of divers citizens, and in evil example to all others, was held not sufficient to charge a complaint, the court saying: "The 'disturbance of divers citizens' by noises in the public streets is not a proper setting out of the offense here intended to be charged. If the acts done by the parties constitute any criminal offense, it is that of a nuisance. As such it ought to have been alleged that the noises made by the defendants were to the great damage and common nuisance of all the citizens of the commonwealth, there inhabiting, being, and residing, etc."

II. Under statute specifying words.

a. In general.

In the cases considered under the

following subdivisions, the language has been made a criminal offense by statute. These statutes vary widely in form. Some prohibit language calculated or tending to produce a breach of the peace, others prohibit threatening, quarreling, challenging, etc., while others describe the prohibited language as profane, abusive, offensive, or the like. Some are designed to protect the public peace, and are applicable only to language used in public places; others look to the protection of individuals in their own habitations, and prohibit the use of objectionable language in or near dwelling houses, or to the disturbance. of families or neighborhoods; yet others relate specifically to language used in the presence of females. While the following subdivisions are designed to follow these several types of legislation, it should be noticed that, while the statutes of most jurisdictions are confined to a single one of the types referred to, other statutes unite several distinct prohibitions.

In Georgia, under the express provision of the statutes dealing with the use of opprobrious language, the language must be used without provocation. And while the burden is on the state to show it was used without provocation, it is not necessary for the state to show more than that there was not sufficient provocation. Ogletree v. State (1916) 18 Ga. App. 41, 88 S. E. 751; Fuller v. State (1883) 72 Ga. 213.

Under these statutes, it is well settled that it is for the jury to determine whether or not there was provocation to excuse the use of the opprobrious words or language. Collins v. State (1886) 78 Ga. 87; Meaders v. State (1895) 96 Ga. 299, 22 S. E. 527; Williams v. State (1898) 105 Ga. 608, 31 S. E. 738; Echols v. State (1899) 110 Ga. 257, 34 S. E. 289; Hanson v. State (1901) 114 Ga. 104, 39 S. E. 942; Fish v. State (1905) 124 Ga. 416, 52 S. E. 737; Hamilton v. State (1911) 9 Ga. App. 402, 71 S. E. 593; Jackson v. State (1913) 14 Ga. App. 19, 80 S. E. 20; Sherrer v. State (1915) 17 Ga. App. 335, 86 S. E. 735; Wiggins v. State (1916) 17 Ga. App. 748, 88 S. E.

411; Ogletree v. State (Ga.) supra; Cleveland v. State (1918) 22 Ga. App. 124, 95 S. E. 540.

In a prosecution for using profane language in the presence of a female, the provocation may have been caused by a party other than the female. Ray v. State (1901) 113 Ga. 1065, 39 S. E. 408.

And under an indictment for using opprobrious words tending to cause a breach of the peace, it is no defense that the accused had been told by his wife, or by her and another person, that the one to whom the opprobrious words were addressed had insulted her, or used insulting language in speaking to her, there being no evidence other than these declarations that any insult had in fact been given, or any insulting language used to his wife. Newton v. State (1894) 94 Ga. 593, 19 S. E. 895.

Under a prosecution for using opprobrious words or abusive language. tending to cause a breach of the peace, without provocation, the fact that the opprobrious words were addressed to a person who had impounded the cattle of the accused, taken damage feasant, need not prevent the jury from finding that there was not sufficient provocation for their use. Ratteree v. State (1886) 78 Ga. 335.

b. Statute specifying threatening, quarreling, challenging, etc.

Under statutes prohibiting breaches of the peace by the use of "threatening, quarreling, challenging," etc., the courts have held that threatening words which disturb the public peace are made an offense. State v. Farrall (1860) 29 Conn. 72; State v. Benedict (1839) 11 Vt. 236, 34 Am. Dec. 688; State v. Archibald (1887) 59 Vt. 548, 59 Am. Rep. 755, 9 Atl. 362.

Thus, under a statute making it an offense to disturb or break the peace by threatening, quarreling, challenging, etc., it was held that any threats which disturb the public peace are made an offense, and in defining what is meant by a public peace, the court said: "It is . that invisible sense of security which every man feels so necessary to his comfort, and

for which all governments are instituted. A threat, in order to violate this sense of security, must be of some grievous bodily harm, must be put forth in a desperate and reckless manner, accompanied by acts showing a formed intent to execute them, must be intended to put the person threatened in fear of bodily harm, and must produce that effect, and must be of a character càlculated to produce that effect upon a person of ordinary firmness." State v. Benedict (1839) 11 Vt. 236, 34 Am. Dec. 688.

So, in State v. Archibald (Vt.) supra, an indictment under a statute against disturbing or breaking the public peace by threatening, quarreling, etc., which alleges that the accused "then and there quarreled by cursing and swearing and by calling opprobrious, indecent, and obscene names," was held to be sufficient, there being no necessity for an allegation of an intent to break the public peace, since the act is of itself of a character which necessarily imports intent.

However, it is necessary that the complaint charging a person with a breach of the peace by "threatening to strike, beat, injure, and assault divers and sundry persons" should name the person against whom the threats were directed, or allege that their names are unknown; otherwise it would be subject to demurrer. State v. Bruce (1896) 69 Vt. 98, 37 Atl. 238.

So, under a statute penalizing disturbance of the peace, or the stirring up or provoking of contention and strife by following or mocking any person with scurrilous or abusive or indecent language or noise, the contention mentioned in the statute may be evidenced by passionate words, looks, and gestures, without blows. The court was of the opinion that words which excite the bad passions of another, so that he replies in like violent and opprobrious language, would be a "contention," within the meaning of the statute. State v. Warner (1867) 34 Conn. 276.

And under a statute prohibiting the disturbance of the peace of any family or neighborhood by threatening, chal

lenging, or quarreling, etc., it has been held sufficient to establish a violation by showing that the quiet and peace of two persons were disturbed at a certain place, notwithstanding that these two persons resided in a distant neighborhood, where the language complained of was spoken near the public highway in the presence of other persons. People v. Loverkamp (1911) 165 Ill. App. 532.

However, in Carr v. Conyers (1889) 84 Ga. 287, 20 Am. St. Rep. 357, 10 S. E. 630, under a statute prohibiting quarreling, cursing, and acting otherwise disorderly, it was held that the mere use, in an ordinary tone, of vituperative and threatening words by one to another, who remained silent, where the words of the accused, as repeated by one witness for the prosecution, were free from profanity, and the only other witness testified that they included the word "damn," or something to that effect, would not sustain a conviction.

And where the information charged a breach of the peace by insulting and provoking a group of laborers who were traveling on a train, by calling them vile names, and threatening them at the same time with a piece of sugar cane, it was held that § 368 of the Penal Code applied which provides for the punishment of every person who maliciously and wilfully disturbs the peace or quiet of any neighborhood or person by tumultuous or offensive carriage, or by threatening, quarreling, challenging to fight, or fighting, and that it was not sufficient to allege that the defendant used threatening language, or assumed an aggressive attitude, if it is not alleged that such language or attitude had the actual effect of disturbing the peace of one or several particular persons, the disturbance constituting the offense. People v. Vaz (1920) 28 P. R. R. 871.

c. Statute specifying words calculated or tending to cause a breach of the peace.

Under statutes which prohibit the use of language calculated or tending to cause a breach of the peace, the character of the language and the circumstances under which it was used