
    53030.
    ROZIER v. THE STATE.
    Argued November 1, 1976
    Decided November 5, 1976.
   Bell, Chief Judge.

The accusation alleged that defendant "did without provocation use to and in the presence of..., a 16-year-old female,. .. abusive and profane language which he knew or should have known by their very utterance would tend to incite an immediate breach of the peace, said language being, to-wit: 'How about some pussy’?, said utterance being in violation of Georgia Code Section 26-2610.” Code § 26-2610 (a) provides: "A person who commits any of the following acts is guilty of a misdemeanor: (a) Without provocation, uses to or of another, in his presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace; that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in his presence, naturally tend to provoke violent resentment, that is, words commonly called fighting words.” This statute is very plainly designed to punish "fighting words” which by their utterance tend to incite an immediate breach of the peace. See Gooding v. Wilson, 405 U. S. 518 (92 SC 1103, 31 LE2d 408). The evidence by the state revealed that the defendant made this remark to the victim while the latter was at home with her five-year-old brother. This remark, when considered under the circumstances and in the context in which it was made, did not constitute "fighting words.” Thus, there was no violation of this statute.

Judgment reversed.

Clark and Stolz, JJ., concur.

Lane & Littlefield, Grayson P. Lane, for appellant.

Delman L. Minchew, Solicitor, for appellee.  