Cleveland v. State

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.