1. The special assignment of error in the certiorari designated "(e)" alleges "that the court erred in overruling a motion of the defense counsel, who objected to the statements of officer Johnson, because such statements were highly prejudicial to the defendant and [were] hearsay testimony." This presents no question for decision because no statement of Johnson is set out in the special assignment of error. Shaw v. Jones, 133 Ga. 446 (9) (66 S.E. 240); Lester v. State, 155 Ga. 882 (3), 883 (118 S.E. 674); Payne v. Lyon, 154 Ga. 501, 507 (114 S.E. 892).
2. "Words get their point and meaning almost entirely from the time, place, circumstances, and intent with which they are used; consequently it is usually issuable, and therefore a question for the jury as to whether any particular language is actually obscene and vulgar." Dupree v. State, 68 Ga. App. 198, 199 (22 S.E.2d 335).
3. The indictment charged a violation of the Code, § 26-6303, in that the accused "did without provocation, use to and of Miss Allie Holbrook, a female, and in her presence, the following obscene and vulgar language; "Will five dollars be enough? Will five dollars be enough? Do you want me to show you? — meaning by said language to ask the said Miss Allie Holbrook to have sexual intercourse with him — said language then and there tending to cause a breach of the peace." Held: The evidence authorized a finding that the language, "Will five dollars be enough? Will five dollars be enough? Do you want me to show you?" was used in the presence of the female, and, when considered in connection with the time, place, and other circumstances attending the use of such words, they were vulgar and obscene as charged in the indictment, in that the defendant meant by said language to ask the female to have sexual intercourse with him.
The evidence authorized the verdict, and the judge did not err in overruling the certiorari.
Judgment affirmed. Broyles, C. J., and Gardner. J.,concur.
DECIDED DECEMBER 5, 1944. *Page 792 STATEMENT OF FACTS BY MacINTYRE, J. Miss Holbrook, a witness for the State, testified substantially as follows: That "on Sunday night, March 19, 1944, she visited her brother approximately one block off South Gordon Road, and approximately one mile from the end of the West View car line; that she walked from the end of the West View car line to her brother's house and reached his house about 7:30 p. m.; that immediately upon reaching her brother's house she `phoned the police department and reported that a negro had insulted her as she proceeded from the end of the car line to her brother's house; that shortly before she reached the second entrance to the West View Cemetery, as she proceeded out Gordon Road, and as she passed the said second entrance to West View Cemetery, she was overtaken at this point by the same negro, who asked her if she knew any Parks who lived out that way; that she answered in the negative, and that she did not live out that way; that she did not pay any further attention to this negro at that time, but that she proceeded on her way in the direction of her brother's home; that a short distance further on down the road this same negro asked her a series of questions which were not audible to such an extent that she could understand what he was saying, but that he asked her where she lived and if she lived out that way, and this, too, she answered in the negative; that as she neared her brother's home, but while she was still on Gordon Road this same negro asked her: `Will five dollars be enough? Will five dollars be enough? Do you want me to show you?' That to these questions she replied: `You had better mind your business and be careful what you show;' that she looked to her side quickly and observed that the negro had on a brown hat, brown coat, and brown shoes; that she continued on her journey in the direction of her brother's house; that the negro turned off to the right approximately three hundred feet up the hill from where she turned off South Gordon Road to proceed to her brother's home; that she knew this because the negro had slowed up and dropped to her rear after she answered him on this last occasion as she did; that she turned around to observe what had happened to him, and saw him turn off the road; that she did not see this negro any more, but walked on to her brother's home and *Page 793 reported the incident to her brother and sister-in-law and thereafter called the police." She further stated that there were houses along Gordon Road but that no automobiles passed her. The evidence authorized a finding by the jury that the defendant was the person who accosted the female on the occasion in question.