Corrigan, J.
Appellant’s first, second and fourth propositions of law are directed to his conviction under former R. C. 2905.301. Appellant’s third proposition of law deals [298] with the constitutionality of former R. C. 3761.11 and will be discussed separately.
I.
Appellant maintains, in proposition of law No. 1, that the trial court’s instruction, removing from the jury the question of fact as to whether appellant’s alleged language was obscene and licentious within the meaning of R. C. 2905.301, is erroneous and deprives him of due process of law. Appellant argues that the Court of Appeals cannot render such error harmless by a finding of fact that the language in question constituted “fighting words.” Appellant also maintains, in proposition of law No. 2, that application of R. C. 2905.301 to the language here alleged is an unconstitutional application of that section in violation of the First Amendment to the United States Constitution, and, in proposition of law No. 4, that R. C. 2905.301 is vague and overbroad on its face in violation of the First and Fourteenth Amendments to the United States Constitution.
This court recently reversed two convictions for the alleged use of obscene language on a public street. Columbus v. Fraley (1975), 41 Ohio St. 2d 173. Appellants, in that case, had been convicted under Section 2327.01 of the Columbus Code of Ordinances, which provides:
“No person shall disturb the good order and quiet of the city by * * * using obscene or profane language in any street or other public place * *
The expletives for which the appellants, in Fraley, were convicted are the same as those used in the present case. This court reversed the obscene language conviction on the basis that, as a matter of law, the language used by the appellants, in that case, was not, in some significant way, erotic and, therefore, not obscene as defined by the United States Supreme Court in Roth v. United States (1957), 354 U. S. 476, and, subsequently, Miller v. California (1973), 413 U. S. 15, and as applied to symbolic speech and spoken words in Cohen v. California (1971), 403 U. S. 15, and Hess v. Indiana (1973), 414 U. S. 105, respectively-
[299] This has been the position of this court in prior eases involving the same vulgar epithets for which appellant herein was charged with obscene expression. Columbus v. Schwarzwalder (1974), 39 Ohio St. 2d 61, and Columbus v. Williams (1973), 36 Ohio St. 2d 7. In Williams, we reversed a conviction for the alleged violation of R. C. 2905.-301, basing reversal on Cohen, supra. Obscene expression is not protected by the First Amendment to the United States Constitution, but in order to be obscene, such expression must, at the very least, ‘ ‘ * # * appeal to a prurient interest in sex, as that interest is defined by applying contemporary community standards, and must be, in some significant way, erotic.” (Paragraph one of the syllabus in Columbus v. Fraley, supra.)
In the present ease, the trial court not only excluded from consideration by the jury an essential question of fact but charged the jury in its instruction that the language allegedly used was, as a matter of law, obscene when the United States Supreme Court and this court have determined that identical language used in similar circumstances was not obscene. Hess v. Indiana, supra (414 U. S. 105); Columbus v. Schwarzwalder, supra (39 Ohio St. 2d 61); Columbus v. Williams, supra (36 Ohio St. 2d 7).
The trial court’s instruction in this case was not only prejudicial to appellant’s defense to the charge of violating R. C. 2905.301, but clearly erroneous under the decisions previously cited. The error was compounded by the Court of Appeals when that court affirmed appellant’s conviction on the basis that the language allegedly used by appellant constituted “fighting words.”
In the Fraley decision, this court specificallly rejected the contention that a person tried, charged and convicted solely for the use of obscene language could have that conviction affirmed upon a theory that the language constituted “fighting words.” See paragraph two of the syllabus in Fraley, supra.
This court based the Fraley decision on Cole v. Arkansas (1948), 333 U. S. 196, wherein the defendants were charged under an Arkansas statute prohibiting, in section [300] one, the use of force and violence and, in section two, promotion of an unlawful assemblage. The trial court instructed the jury solely upon section two and the defendants were convicted. Upon appeal, the Supreme Court of Arkansas affirmed the conviction on the basis that the defendants had violated section one of the statute.
In reversing the conviction, the United States Supreme Court held that the affirmance by the Arkansas Supreme Court constituted a denial of procedural due process, stating:
“* * * It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him on a charge that was never made. * * * ” Cole v. Arkansas, supra (333 U. S. 196, 201).
Here, as in Fraley, supra, appellant was convicted on a charge to which he had no opportunity to respond. The Court of Appeals’ affirmance on a “fighting words” theory not only denied appellant due process but also rendered R. C. 2905.301 overly broad and vague in its application to the language in question.
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Corrigan, J.
Appellant’s first, second and fourth propositions of law are directed to his conviction under former R. C. 2905.301. Appellant’s third proposition of law deals [298] with the constitutionality of former R. C. 3761.11 and will be discussed separately.
I.
Appellant maintains, in proposition of law No. 1, that the trial court’s instruction, removing from the jury the question of fact as to whether appellant’s alleged language was obscene and licentious within the meaning of R. C. 2905.301, is erroneous and deprives him of due process of law. Appellant argues that the Court of Appeals cannot render such error harmless by a finding of fact that the language in question constituted “fighting words.” Appellant also maintains, in proposition of law No. 2, that application of R. C. 2905.301 to the language here alleged is an unconstitutional application of that section in violation of the First Amendment to the United States Constitution, and, in proposition of law No. 4, that R. C. 2905.301 is vague and overbroad on its face in violation of the First and Fourteenth Amendments to the United States Constitution.
This court recently reversed two convictions for the alleged use of obscene language on a public street. Columbus v. Fraley (1975), 41 Ohio St. 2d 173. Appellants, in that case, had been convicted under Section 2327.01 of the Columbus Code of Ordinances, which provides:
“No person shall disturb the good order and quiet of the city by * * * using obscene or profane language in any street or other public place * *
The expletives for which the appellants, in Fraley, were convicted are the same as those used in the present case. This court reversed the obscene language conviction on the basis that, as a matter of law, the language used by the appellants, in that case, was not, in some significant way, erotic and, therefore, not obscene as defined by the United States Supreme Court in Roth v. United States (1957), 354 U. S. 476, and, subsequently, Miller v. California (1973), 413 U. S. 15, and as applied to symbolic speech and spoken words in Cohen v. California (1971), 403 U. S. 15, and Hess v. Indiana (1973), 414 U. S. 105, respectively-
[299] This has been the position of this court in prior eases involving the same vulgar epithets for which appellant herein was charged with obscene expression. Columbus v. Schwarzwalder (1974), 39 Ohio St. 2d 61, and Columbus v. Williams (1973), 36 Ohio St. 2d 7. In Williams, we reversed a conviction for the alleged violation of R. C. 2905.-301, basing reversal on Cohen, supra. Obscene expression is not protected by the First Amendment to the United States Constitution, but in order to be obscene, such expression must, at the very least, ‘ ‘ * # * appeal to a prurient interest in sex, as that interest is defined by applying contemporary community standards, and must be, in some significant way, erotic.” (Paragraph one of the syllabus in Columbus v. Fraley, supra.)
In the present ease, the trial court not only excluded from consideration by the jury an essential question of fact but charged the jury in its instruction that the language allegedly used was, as a matter of law, obscene when the United States Supreme Court and this court have determined that identical language used in similar circumstances was not obscene. Hess v. Indiana, supra (414 U. S. 105); Columbus v. Schwarzwalder, supra (39 Ohio St. 2d 61); Columbus v. Williams, supra (36 Ohio St. 2d 7).
The trial court’s instruction in this case was not only prejudicial to appellant’s defense to the charge of violating R. C. 2905.301, but clearly erroneous under the decisions previously cited. The error was compounded by the Court of Appeals when that court affirmed appellant’s conviction on the basis that the language allegedly used by appellant constituted “fighting words.”
In the Fraley decision, this court specificallly rejected the contention that a person tried, charged and convicted solely for the use of obscene language could have that conviction affirmed upon a theory that the language constituted “fighting words.” See paragraph two of the syllabus in Fraley, supra.
This court based the Fraley decision on Cole v. Arkansas (1948), 333 U. S. 196, wherein the defendants were charged under an Arkansas statute prohibiting, in section [300] one, the use of force and violence and, in section two, promotion of an unlawful assemblage. The trial court instructed the jury solely upon section two and the defendants were convicted. Upon appeal, the Supreme Court of Arkansas affirmed the conviction on the basis that the defendants had violated section one of the statute.
In reversing the conviction, the United States Supreme Court held that the affirmance by the Arkansas Supreme Court constituted a denial of procedural due process, stating:
“* * * It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him on a charge that was never made. * * * ” Cole v. Arkansas, supra (333 U. S. 196, 201).
Here, as in Fraley, supra, appellant was convicted on a charge to which he had no opportunity to respond. The Court of Appeals’ affirmance on a “fighting words” theory not only denied appellant due process but also rendered R. C. 2905.301 overly broad and vague in its application to the language in question.
Construing the term “licentious” as comprehending “obscene,” R. C. 2905.301 prohibits obscene expression. In this respect, the statute is narrow and specific. The appellate court’s construction reads into the statute an intent to inflict injury or incite an immediate breach of the peace. That construction also sweeps within the prohibitions of the statute language which may not be obscene under the staandards set out in Roth and Miller, supra. Clearly, this construction extends the prohibitions of the statute beyond obscene expression and into the area of disorderly conduct. R. C. 2905.301, on its face, gives no notice of the conduct and language proscribed by the appellate court’s construction. The purpose of authoritative judicial construction of statutes and ordinances is to narrow and refine overly broad and vague statutes and render them “* * * not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Four[301] teenth Amendments.” Gooding v. Wilson (1972), 405 U. S. 518, 520. See, also, Lewis v. New Orleans (1974), 415 U. S. 130; Cohen v. California, supra (403 U. S. 15, 18-22); Terminello v. Chicago (1949), 337 U. S. 1, 4-5; and Cincinnati v. Karlan (1974), 39 Ohio St. 2d 107.
Here, the appellate court construed a narrow and precise statute in such a manner as to render it unconstitutionally vague and overbroad in its application. For the foregoing reasons, appellant’s judgment of conviction for violation of former E. C. 2905.301 is reversed and defendant discharged thereon.
II.
Appellant’s third proposition of law is directed to the contention that former E. C. 3761.11 is vague and overbroad, on its face, and violates the constitutional protections of the First and Fourteenth Amendments to the United States Constitution.
Former E. C. 3761.11 (repealed in 1974 and replaced by present E. C. 2917.12) provided:
“No person shall willfully interrupt or disturb a lawful assemblage of persons or a person while he is at or about the place where such assemblage is to be held, or is or has been held.” (Emphasis added.)
It is clear that the statute proscribed two separate categories of conduct: First, willfully interrupting or disturbing a lawful assemblage of persons; and, second, willfully interrupting or disturbing a person while he is at or about the place where a lawful assemblage is to be held; or is or has been held. It appears that Coates v. Cincinnati (1971), 402 U. S. 611, rendered doubtful the constitutionality of the latter portion of E. C. 3761.11. However, that doubt is irrelevant in this appeal. The record discloses that appellant was charged, tried and convicted solely for violating the first segment of former E. C. 3761.11.