
    3232.
    Hamilton v. The State.
    Decided June 7, 1911.
    ' Indictment for using opprobrious words, etc.; from Cobb superior court — Judge Morris. January 16, 1910.
    
      Mozley & Moss, for plaintiff in error.
    
      J. P. Broolce, solicitor-general, contra.
   Russell, J.

In a prosecution under the Penal Code (1910), § 387, for using opprobrious words and abusive language, the sufficiency of the provocation which will justify the use of such words is a matter exclusively for the jury. The jury can not be instructed as a matter of law that, if one simply said “howdy” to the defendant, this would not be' sufficient justification for the defendant to use opprobrious words and abusive language. Whether this would be sufficient provocation would depend on the manner of the salutation and the surrounding circumstances. There may be justifiable provocation where no words have been spoken. The sufficiency of the provocation depends, not only upon the language employed, but upon the relationship of the parties, the state of feeling existing between them, the tone, manner, and spirit in which the language is used, and other circumstances from which the jury may in some instances determine that words apparently or ordinary innocent afforded reasonable cause for provocation under the circumstances or in the manner in which they were used. The question is so exclusively one of fact that any intimation or direction to the jury as to the weight or effect of any portion of the testimony illustrative of the subject of provocation is error. Judgment reversed.  