are considered in determining whether the language was calculated or tended to a breach of the peace.

Thus, in Rumsey v. Bullard (1909) 5 Ga. App. 802, 63 S. E. 921, which was a suit to recover damages under a breach of the peace bond, although there was conflict in the evidence as to whether the accused used other violence, in addition to calling another a liar, the court, while pointing out that whether language is calculated to excite alarm or to provoke a breach of the peace depends to a large degree upon the character and size of the speaker and the excitability and nervousness of the person toward whom the unpeaceful demonstration is made, said: "All the judges of this court, being 'to the manor born,' are willing to take judicial cognizance of a fact which as individuals they all well know, that, in Georgia, to call a man a liar, even without raising a stick, usually provokes a breach of the peace, and most generally brings on a fight. There may be exceptions to this rule, but they are rare exotics, and find little nourishment in our southern soil and beneath our southern skies."

So, it was held in State v. Moser (1878) 33 Ark. 140, that whether the language alleged to have been used by the defendant was profane and calculated to arouse the anger of a person to whom it was addressed, and provoke a breach of the peace, depends upon the relation of the parties, the circumstances under which the language was used, and the manner of the speaker, which are all questions of fact for the jury to determine.

And in Dyer v. State (1896) 99 Ga. 21, 59 Am. St. Rep. 228, 25 S. E. 609, under a statute of this type, the court, in commenting on the nature of the offense, said: "The gist of the offense is the use of language to or of another, in his presence, which is calculated to cause a breach of the peace."

It has been held that it is not prejudicial error to refuse to admit, in a prosecution for using abusive language to another in a manner calculated to provoke a breach of the peace, evidence that there was feeling between the prosecutor and the accused,

since such evidence would only lend additional force to the testimony that on the occasion in question the defendant cursed and abused the prosecutor, the court saying: "Cursing and abusing, under such circumstances, was more likely to produce a breach of the peace than if there was no feeling or cause of aggravation existing between the parties." Bryson v. State (1897) Tex. Crim. Rep. —, 39 S. W. 365.

The relative size of the parties does not affect the issue, in a prosecution under a statute for the use of violent, abusive, and insulting language, under circumstances reasonably calculated to provoke a breach of the peace. Deaton v. State (1908) 53 Tex. Crim. Rep. 393, 110 S. W. 69.

To sustain a charge of disturbance of the peace by cursing and swearing, and by loud, abusive, and indecent language, in violation of a statutory prohibition, it is not necessary to prove that every individual composing the community or neighborhood was disturbed, nor could the charge be disproved by negative evidence offered with respect to two or three persons who testified their peace was not disturbed. State v. Fogerson (1860) 29 Mo. 416.

And under this statute it was held that it is not essential to have testimony that the peace of any person or persons was disturbed, that being a question for the jury to determine under all the facts and circumstances. De Soto v. Hunter (1909) 145 Mo. App. 430, 122 S. W. 1092.

It was held in Ex parte Kearny (1880) 55 Cal. 212, under an ordinance prohibiting words having a tendency to create a breach of the peace, that it was necessary to constitute the offense that the words either be addressed to or spoken of the person whom they have a tendency to incite to a breach of the peace.

Under a statute which makes it an offense to use in reference to and in the presence of another, or in reference to and in the presence of any member of his family, abusive or obscene language, intended or naturally tending to provoke an assault or any breach of the peace, it is necessary

that the complaint should charge that the words were used in the presence either of the person to whom they were directed or of some member of his family, and in the absence of an allegation to that effect the complaint cannot be sustained. Peters v. State (1886) 66 Wis. 339, 28 N. W. 138.

Under a statute providing that any person who shall, in the presence or hearing of another, curse or abuse such person or use any violently abusive language concerning such other, or any of his female relations, under circumstances reasonably calculated to provoke a breach of the peace, shall be deemed guilty of a misdemeanor, the offense is complete whenever the offensive language is spoken to or about another, or about his female relations, in his presence, and under circumstances reasonably calculated to provoke a breach of the peace, regardless of the presence or absence of third persons. Byrd v. Com. (1919) 124 Va. 833, 98 S. E. 632.

In Young v. State (1898) Tex. Crim. Rep., 44 S. W. 507, the precise statute under which the conviction was sustained does not appear in the opinion; from the instruction of the trial court, however, it is apparent that it was under the statute penalizing the use of language calculated to produce a breach of the peace. In that case it was held that the mere cursing or swearing or use of vulgar language is not the gist of the offense, but that such cursing or swearing or use of vulgar language must be in a mann er reasonably calculated to disturb the people, or a part of the people, assembled at the public place at which the cursing or swearing or other language is uttered.

So, in a prosecution founded on a municipal ordinance imposing a penalty upon any person who shall disturb the peace of others by unseemly, profane, obscene, and offensive language calculated to provoke a breach of the peace, it was held, in St. Louis v. Slupsky (1914) 254 Mo. 309, 49 L.R.A. (N.S.) 919, 162 S. W. 155, that an instruction that if the peace of the persons present was disturbed, the jury should find the defendant guilty, was

erroneous, as substituting a different requirement for that of the ordinance, that the language must have been calculated to provoke a breach of the peace; the court was of the opinion that, unless the words tend to excite immediate violence, abusive and insulting language will not constitute a breach of the peace unless so provided by statute.

It is sufficient for the indictment to charge, "in a manner reasonably calculated to provoke a breach of the peace," although the statute uses the words "under circumstances." Trezevant v. State (1905) 47 Tex. Crim. Rep. 502, 84 S. W. 828.

And an information which charges that the defendant, in the presence and hearing of another, did curse and abuse such person under circumstances reasonably calculated to provoke a breach of the peace, was held sufficient in Foreman v. State (1893) 31 Tex. Crim. Rep. 477, 20 S. W. 1109.

The fact that the opprobrious epithet alleged to have been used by the defendant was in the plural number and applicable to others, in addition to the person to whom it was alleged to have been directed, was not a sufficient ground for quashing an indictment under a statute penalizing the use of opprobrious words or abusive language tending to cause a breach of the peace. Wiggins v. State (1916) 17 Ga. App. 748, 88 S. E. 411.

Under statutes of this kind it is a question for the jury to determine whether, under all the facts and circumstances, the words used were of such a character that the use of them was calculated to cause a breach of

the peace. Fish v. State (1905) 124 Ga. 416, 52 S. E. 737; Jackson v. State (1913) 14 Ga. App. 19, 80 S. E. 20; McCandless v. State (1886) 21 Tex. App. 411, 2 S. W. 811.

The following are instances in which this type of statute has been applied:

Under a statute prohibiting language which tended to cause a breach of the peace, it was held in State v. Shelby (1905) 95 Minn. 65, 103 N. W. 725, that the words, "You are a fool; you ought to be sent to the insane asy

lum," would not warrant a conviction unless the intent to cause a breach of the peace was shown, but that if the defendant, in addition to these words, called the prosecuting witness a “s——— of a b-," it would warrant a conviction without reference to the intention of the defendant, such words having a tendency to provoke a breach of the peace.

So, under this type of statute, the following language has been held calculated to produce a breach of the peace: "Go to hell, God damn you." State v. Moser (1878) 33 Ark. 140; Ratteree v. State (1886) 78 Ga. 335. "You are a liar." Easter v. State (1913) 71 Tex. Crim. Rep. 370, 160 S. W. 74. "You are a God damn liar." Johnson v. State (1902) Tex. Crim. Rep., 66 S. W. 1097. Calling a person “a damned old sheep thief," "a damned knave," "a God damned old scoundrel," "a damned old rascal," and "an old gray-headed curse.' State v. Warner (1867) 34 Conn. 276.

Conversely, calling a potato peddler "Taters," a word which he uses in crying his wares, is not, although it incites him to anger, within a statute making the use of profane, violent, abusive, or insulting language, which in its common acceptation is calculated to arouse to anger the person to whom it is addressed, a breach of the peace. Holmes v. State (1918) 135 Ark. 187, L.R.A.1918F, 938, 204 S. W. 846.

So, speaking to a juryman in the courthouse, and advising him that a certain case in which he was sitting as juryman was a frame-up, does not constitute disorderly conduct tending to a breach of the peace. People v. Dorsch (1915) 166 App. Div. 515, 151 N. Y. Supp. 668.

Likewise, in a syllabus opinion in Daniel v. Athens (1900) 110 Ga. 289, 34 S. E. 1016, the court held that the use in the presence of a man of an obscene word in an ordinary tone, without anger, and under circumstances not calculated to offend the hearer, or cause a breach of the peace, does not constitute a violation of the municipal ordinance prohibiting disorderly con

duct by "remarks calculated to disturb the peace of the citizens."

And in Jacksonville V. Headen (1891) 48 Ill. App. 60, a person who was a little loud in a political discussion, but used no obscene language and showed no disposition to harm anybody, was held not guilty of conduct tending to a breach of the peace.

And a defendant cannot be convicted under a statute prohibiting language calculated to provoke a breach of the peace, who merely quarreled with his wife in his own home, not in a loud tone, notwithstanding he disturbed a sick person next door. Ellis v. Pratt City (1896) 113 Ala. 541, 21 So. 206.

And under an ordinance which provided that any person who is guilty of conduct which tends to disturb the public peace shall be guilty of a misdemeanor, it was said in Pavish v. Meyers (1924) 129 Wash. 605, 34 A.L.R. 561, 225 Pac. 633, that words of a degrading character addressed to another may tend to a breach of the peace. This was an action against a police officer for an unlawful arrest and false imprisonment, where the plaintiff had accused the police officer of being a peddler of whisky.

And in Baumgarner v. State (1911) 64 Tex. Crim. Rep. 165, 142 S. W. 4, the court said: "We cannot understand why the appellant would not be guilty, whether he cursed and abused the parties in his own house, or in the house of another, or not in any house at all."

Under statutes of this kind it has been held that the fact that the language was used in reply to language of the same kind may be shown in mitigation of the offense, but not in justification, or exculpation. Moore v. State (1887) 50 Ark. 25, 6 S. W. 17; Christmas v. State (1898) Tex. Crim. Rep. 19 44 S. W. 175; Watkins v. State (1898) Tex. Crim. Rep. —, 44 S. W. 507; Easter v. State (1913) 71 Tex. Crim. Rep. 370, 160 S. W. 74.

Thus, in Moore v. State (Ark.) supra, under a statute prohibiting the use of any profane, violent, abusive, or insulting language towards or about another person in his presence

or hearing, which in its common acceptation is calculated to arouse anger and to cause a breach of the peace, it was said that evidence by which the accused wished to prove that the language used was in response to opprobrious language used by the prosecuting witness should only be considered in mitigation of the punishment, and not for justification or exculpation.

Evidence that the words spoken were true, although not admissible in bar to the prosecution for violation of a statute penalizing the use of words reasonably calculated to cause a breach of the peace, should be admitted in mitigation of the punishment. Byrd v. Com. (1919) 124 Va. 833, 98 S. E. 632.

So, in holding that opprobrious words tending to cause a breach of the peace are not justified by the fact that they are true, the court said, in Dyer v. State (1896) 99 Ga. 20, 59 Am. St. Rep. 228, 25 S. E. 609, supra: "In other words, the fact that a man is a liar or a thief is not, of itself alone, a legal justification for telling him so. The gist of the defense is the use of language to or of another, in his presence, which is calculated to cause a breach of the peace, and if it is language of this character, it makes no difference whether it is true or false."

d. Statutes specifying vulgar, profane, insulting, etc., words.

1. In general.

Under a statute providing that "if any person or persons shall wilfully disturb the peace within a neighborhood, or any family, or any person, by loud and unusual noise, loud and offensive or indecent conversation, etc.," they shall be guilty of a misdemeanor, what will constitute "loud and offensive or indecent conversation," within the meaning of the statute, must depend largely upon the person by whom the language is uttered, the person or persons to whom it is uttered, and the occasion on which it is uttered. State V. Sturges (1892) 48 Mo. App. 263. The court said that conversation might not be regarded as loud, offensive, or indecent, within the meaning of the statute, when uttered by a number of

a gang of street laborers to one of the others, or when uttered in a tavern or in a dramshop, or even in a political meeting, when the same conversation might well be regarded as coming within the prohibition of the statute if uttered in a church during divine service, or in a court of justice, of whatever jurisdiction, pending the transaction of judicial business.

And in a prosecution of a woman who had called another vile names, under a statute penalizing the use of offensive or disorderly language, the court said: "The word 'offensive' has been defined as 'serving, adapted, or intended to give offense; displeasing; annoying.' Funk & Wagnalls' New Standard Dict. 1913. The word 'offensive' is defined as 'that which injures or wounds the feelings or causes displeasure, affront, or anger.' Ibid. It cannot be questioned but that the language addressed to the complainant's wife by the defendant was offensive within the meaning of the above definitions. In a broad sense, such language would constitute a gross violation of the ordinary rules of propriety, good neighborhood, and good manners, and, if spoken loud enough to be heard by the public, must be considered as an offense against public order and decency. The use of such language at a time and place when it can be heard by other persons than the one addressed has a tendency to be injurious to the public by reason of the vile and obscene import of the words. Certain it is that, no matter how viewed, the use of such words must be offensive to the person attacked." People v. Whitman (1916) 157 N. Y. Supp. 1107.

What will constitute loud and offensive or indecent conversation must depend largely upon the person by whom the language is uttered, the person or persons to whom it is uttered, and the occasion on which it is uttered. State v. Sturges (Mo.) supra; State v. Riley (1924) Mo. App. -, 265 S. W. 874; State v. Lakey (1925) - Mo. App. —, 275 S. W. 565.

Under the general statute penalizing the use of indecent, insulting, and offensive language, it has been held

- that an information which charges the disturbance of the peace by offensive and indecent conversation does not meet the terms of the statute which makes it a misdemeanor to carry on "loud and offensive or indecent conversation," State v. Gallego (1894) 57 Mo. App. 515.

2. In presence of female.

Some of the statutes expressly prohibit the use of indecent, insulting, and offensive language in the presence of a female.

Under a statute of this type an indecent proposal to a woman is an offense, although it be couched in ambiguous language which may also have an entirely innocent meaning. Wiley v. State (1914) 10 Ala. App. 249, 65 So. 204.

And under a statute prohibiting the use of insulting or obscene language near a house where any female might hear it, it is not necessary that the offensive words be uttered to any particular person; it is sufficient if they be overheard by a female. Henderson v. State (1879) 63 Ala. 193.

A statute making it penal to use obscene, vulgar, or profane language in the presence of a female must be held, under the rules of strict construction applicable to penal statutes, to contemplate words only, and not written communications sent to a woman. Williams v. State (1903) 117 Ga. 13, 43 S. E. 436.

It has been held under prosecutions for the use of obscene or offensive language in the presence of a female that the fact that the language was used in reply to the same sort of language may be shown in mitigation and extenuation of the offense, but not in justification. Golson v. State (1888) 86 Ala. 601, 5 So. 799; Talley v. State (1915) 12 Ala. App. 314, 68 So. 567.

Under this type of statute it has been held

- that a girl or a woman may be convicted of a violation of the statute, Daly v. State (1915) 194 Ala. 29, 69 So. 598;

-that the intentional use of abusive, insulting, or obscene language in the presence of any girl or woman is a violation of the statute, and the fact that the defendant was in his own house did not license him to use prohibited language, as the defendant's wife and mother-in-law were under the protection of the statute, Jordan v. State (1915) 13 Ala. App. 186, 68 So. 585; that a show to which the public is invited and expected to come is a public place, within the meaning of a statute punishing one for the use of profane language in the presence of a woman in a public place, Yarbrough v. State (1924) 20 Ala. App. 250, 101 So. 321. See also Hamilton v. State (1925) 20 Ala. App. 585, 104 So. 345.

Under a statute prohibiting the use of "vulgar and profane language in the presence or in the hearing of women and children in a loud and boisterous manner," it is necessary that the com