The grounds taken in the motion for a new trial are considered in the inverse order from what they appear in the motion.
1. In the case of Morris Fishel vs. Lockard & Ireland, 52 Georgia Reports, 632, the judge of the superior court, on the trial thereof, charged the jury, that “if a witness swears willfully and knowingly false, even to a collateral fact, his testimony ought to be rejected entirely, unless it be so corroborated by circumstances or other .unimpeached evidence, as to be irresistible.” Upon a review of that charge it was held to be error, and that although the charge was in the words of the head-note to the case of Ivey vs. The State, 23 Georgia, 236, upon an examination of the judgment of the court in that case, it did not sustain the rule to the full extent to which it went in the head-note. It was also said that it was much broader than the rule stated in Day & Company vs. Crawford, 13 Georgia, 508, which is, that “if a witness swear willfully false upon-any one material point, the jury are at liberty to disregard his testimony altogether unless corroborated by circumstances, or other unimpeachable evidence.” *369Reference was also made to the decision in McLean vs. Clark, 47 Georgia, 508, in which it is held that “the point upon which the untruth is stated must be material.” "We think the true rule to be deduced from these decisions, and one that is proper to be given in charge to the jury when the question arises, is, if a witness knowingly and willfully swears falsely in a material matter, his testimony should be rejected entirely unless corroborated by the facts and circumstances of the case, or other credible evidence. And we do not think that it is a correct charge for the court to say that credit may be given to such a witness, without also stating the necessity for such corroboration. The charge of the court in this case gave no such qualification, stated nothing as to corroborating circumstances or evidence, and in that, there was error.
2. The court was requested to charge that the words alleged to have been used by the defendant must have been offensive and an insult to the one to whom they were spoken, to make them criminal. The statute defining the offense with which defendant is charged, says, any person who shall, without provocation, use to or of another, and in his presence, opprobrious words, etc., or who shall, in like manner, use obscene- and vulgar language in the presence of a female, shall be guilty, etc. If the provocation for the speaking of the words be 'given and proved, then the justification is made out, whether the words be offensive and‘ an insult or not. If the words used be of themselves obscene and vulgar, the question of defense would be, after the state had proved there was no provocation, whether there was in fact any provocation for speaking them. The test of this could not be, simply whether they were offensive and an insult to the persou to whom they were addressed. That fact might be a circumstance affecting the inquiry as to there having been a provocation, but not one to determine absolutely the defendant’s guilt or innocence.
3. As to whether it is competent for a witness to give his opinion upon the question of the drunkenness of a person, it is like other matters of that sort, and if the facts upon which the opinion is based are stated, the witness may, from those *370facts, state what that opinion is. It was said in Choice vs. The State, 31 Georgia, 466, 467, that the testimony was wholly unexceptionable, where the witness stated, “prisoner, from, his appearance, had been drinking.” “Although witness did not see him drinking, jmt he judged, from his manner and appearance, that he had been drinking; had seen him frequently in that condition before.” Many citations could be given sustaining the admissibility of such opinions under the qualifications stated.
4. It was objected by counsel for defendant that it was not competent for the prosecution to introduce evidence against him showing that he was intoxicated. ' Upon this point it is held by a majority of this court, that it was competent for the state to prove that a short time previous to the commission of the offense charged, the accused was intoxicated, provided such testimony makes its probable that the intoxication continued, and existed at the time the alleged criminal act was done. This is the judgment of the court on this point, bat I cannot concur in it. I understand it is put on the ground that it is but giving the surrounding circumstances at the time of the commission of the offense, as a part of the res gestee. I will not deny that a witness for the state in giving the facts which constitute the offense charged — the transaction itself— may state as part of the res gestee, that the defendant was intoxicated at the time. Indeed, it is difficult to conceive what could then happen which the witness, who gives an account of the occurrence, may not state. • Certain it is, that many things are competent to be given in evidence, or I would rather say, may be detailed by the witness, as being apart of the res gestee, which would be incompetent, from any other witness. What could be the object or effect of such testimony in this case? It will be admitted that it could not be introduced for the purpose of attacking the character of the defendant. He had not put his character in issue, and the state could not. Nor will it be claimed that its legal effect would be to show a greater probability of defendant’s guilt. This beiug so, there could be nothing in the issue on trial which *371would be legally affected by such evidence. The chief witness for the state, who proved the res gestee, did not say the defendant was intoxicated; and though the rule of evidence might have permitted her to state that fact, if true, yet, I cannot think the prosecution was entitled to prove as an independent fact in the case that the accused was intoxicated a short while before the commission of the act charged, although it be so near to that time as to make it probable that the intoxication continued to the time when the offense was alleged to have been committed. The danger of admitting such evidence is illustrated in this case. Some of the witnesses affirm .that the defendant was drunk, others deny it. All the witnesses testifying on this point saw him at the same time. Here,- then, was conflicting testimony on a matter which, in law, was immaterial upon the question of defendant’s guilt, the issue to be tried, and yet the burden of meeting it was forced on the accused, and the mind of the jury unnecessarily distracted by it. No one could voluntarily submit to a charge of drunkenness, whose moral character might be ruined by it, and he ought not to be compelled to contest such a charge made by testimony, unless it has a legal significance and force on the issue under investigation. A new trial is granted on the first ground noticed in this opinion.
Judgment reversed.