
    9505.
    Cleveland v. The State.
    Decided April 2, 1918.
    Indictment for misdemeanor; from city court of Polk county— Judge John K. Davis. January 24, 1918.
    The indictment charged the defendant with having used to and of a certain female and in her presence obscene, vulgar, and profane language tending to cause a breach of the peace, to wit: “No, I am not the one; any one who says I am is a God damn liar.” According to testimony for the State, Mrs. Pay, the female named in the indictment, said to the defendant, in regard to a fence, “You tore down the fence, you are on us;” and he said, “I am not, the one that says I am tells a God damned lie.” According to other testimony for the State hé said he did.not think the fence was over the line, and said, “The one that says it tells a God damned lie.” The defendant denied that he used the language1 charged; and, according to his statement and testimony of his .witness, Mrs. Ray’s .son, who accompanied her at the time referred to by the State’s witnesses, said to him, “I have come here to see you [or “you all”] about stealing my land,” or “that land.”
   Broyles, P. J.

1. The language which the evidence for the State showed that the defendant used was substantially the same as charged in the indictment, and there was no variance between the indictment and the proof.

2. Under the facts of the case it was error for the court to refuse to give the following requested charge to the jury: “If you find that the defendant used substantially the language set out in the indictment, he may defend and justify himself by showing that he was provoked to use the language by on'e other than such female; the sufficiency of the provocation being a question for the jury, under all the circumstances of the case.” Ray v. State, 113 Ga. 1065 (39 S. E. 408).

3. There is no merit in the remaining ground of the amendment to the motion for a new trial.

Judgment reversed.

Bloodworth and Harwell, J.J., concur.

Bunn & TrawicJc, for plaintiff in error.

J. A. Wright, solicitor, B. 8. Ault, contra.  