(dissenting). Whether the evidence in this case be considered from the. viewpoint of establishing the charge, specifically made in the indictment against the accused, of assaulting an officer in the discharge of his duty, with the intent to threaten to attack and kill such officer, or to commit a simple assault upon him, still, in either event, a careful consideration of the same will demonstrate the absence of anything like a malicious or felonious assault; and, on the contrary, what occurred was the result of a sudden outburst of passion between two strangers, arising doubtless from misunderstanding on the part of each, and from which a fisticuff of, short duration, and without serious result, followed. In my judgment, the evidence shows a simple assault, which is covered by the indictment (Rev. Stat; § 1035 [Comp. St. § 1701]; Criminal Code, § 276 [Comp. *335St. § 10449]), and for which, at most, a convictiori' should have been had, and a fine of not exceeding $100 imposed. The District Court took from the jury the consideration of the question of a simple assault, and in effect instructed them that the evidence established an assault as specifically charged with intent to interfere with and attack an officer in the discharge of his official duties. The judge likewise charged the jury in a manner and in substance claimed by the accused to be highly prejudicial to him. The jury returned a verdict of guilty, with a recommendation of mercy. The court sentenced the accused to imprisonment in the penitentiary at Atlanta for the term of one year, and to pay a fine of $1,000, with the costs of the prosecution. From this judgment, the writ of error was sued out.
It seems to me .that the court was in error in taking from the jury the determination of the character of the assault committed, as it was in much of the general charge it gave. Hicks v. United States. 150 U. S. 442, 452, 453, 14 Sup. Ct. 144, 37 L. Ed. 1137; Starr v. United States, 153 U. S. 614, 624, 626, 14 Sup. Ct. 919, 38 L. Ed. 841; Hickory v. United States, 160 U. S. 408, 423, 424, 425, 16 Sup. Ct. 327, 40 L. Ed. 474. I cannot give my assent to the affirmance óf a judgment that would impose upon a peaceable and orderly citizen and business man of good standing in the community in which he lived the serious consequences. that would follow therefrom, for an affair of such trivial character as shown by the testimony, even when taken most unfavorably against the accused. The authorities cited by the majority, especially those of Horning v. District of Columbia, 254 U. S. 135, 41 Sup. Ct. 53, 65 L. Ed. 185, Dye v. United States (C. C. A.) 262 Fed. 6, and Sneierson v. United States (C. C. A.) 264 Fed. 268, have, in my judgment, no material bearing on this case, under its peculiar facts and circumstances.
The judgment of the trial court clearly should be reversed, and a new trial awarded.