Section 4031 of the Code provides that “Any person .... who, in the presence or hearing of any female, uses abusive, insulting or obscene language, must, on conviction, be fined not more than two hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months.” Under this statute, it is the jury’s duty to assess the fine (Code, § 4499); and the judge may, in his discretion, *603impose as additional punishment imprisonment in the county jail, or at bard labor for the county, for a term not exceeding six months. — Code, §§ 4494, 4498. Or the jury, if, in their judgment, the defendant should be punished in some other way than by imposition of a fine, may return a verdict of guilty without more, and leave the punishment to the imposition of the court. — Code, § 4500. It is thus seen, that both the jury and the court have a very large discretion as to the kind and amount of punishment to be visited upon one who is adjudged guilty of a violation of the section quoted. He may be fined from one cent to two hundred dollars, and imprisoned in jail, or at hard labor, from a nominal period in the former, and ten days in the latter case, to six months; or the punishment may consist solely in the imposition of a fine, or solely in a sentence to imprisonment. The law gives this wide discretion to the court and jury respectively, under this and many other statutes, in recognition of the truism, that no two criminal acts are precisely the same in point of guilt, and that each separate offense must, in the nature of things, involve some element of aggravation or extenuation peculiar to itself. That there • may be some field afforded for the intelligent exercise of this discretion, it is not only proper, but necessary, that all the circumstances which legitimately shed any light on the transaction, and either add to, or take from the criminality of the act, should be submitted to the tribunal charged with the determination of the degree in some sort, as well as the fact of guilt.
Under that part of the statute we are considering, whether its purpose be to prevent breaches of the-peace, or to shield the sensibilities of women, it is manifest that the evil from the violation of it, and the culpability of the defendant charged with such violation, would be less, where the language denounced by the statute is used in the presence of a female whose sensibilities are known to the defendant to have been blunted to the point of habitual indulgence on her own part, in abuse, insult and obscenity, than if she were pure of speech, and always, considerate in expression. Like considerations would' apply, where it is shown, not that the general habit of the woman was to use abusive, insulting, or obscene language, but that she was given to the use of it, playfully or otherwise, in her associations with the defendant; and evidence of either of these classes should be admitted, to enable the court and jury to discharge their discretionary functions as to the amount of thp punishment intelligently, *604and with approximation to exact justice. In this case, the facts, if they existed, of such habitual indulgence within the knowledge of the defendant, and of such indulgence by her in the association between prosecutrix and the defendant, should have been received in mitigation or extenuation of the offense. In the application of this rule, courts should be careful not to extend it to the reputation of the woman. It is intended to apply only to habit — the actual fact of the use of the interdicted language — and not to the general character of the woman in this respect. And such evidence can only go in extenuation of the offense, and in mitigation, within the sound discretion of the court and jury, of the punishment. It can in no case justify the act.
The legislative purpose was to make it a crime to use the language denounced in the statute, in the presence of any woman, under any circumstances. This purpose is clearly expressed. To deny the protection of the act to any female, or under any state of circumstances, would be to inject an exception into the statute which its letter does not admit of, and to which its spirit is opposed. Guilt must be adjudged upon a concurrence in evidence of the statutory facts, and upon these facts, with others that go in aggravation or extenuation, the punishment is to be assessed with reference to the degree of the defendant’s culpability, as shown by the attendant circumstances.
The rulings of the-Circuit Court were not in accord with our views of the law, and the case is reversed and remanded.