(dissenting) :
I think there was prejudicial error in the trial of this case and feel compelled to dissent. On the sharply conflicting evidence in this case, the jury could have well concluded that the defendant was not without fault in bringing on the difficulty and for that reason not entitled to prevail upon his plea of self-defense, but nevertheless found that he was guilty of simple assault and battery only. It follows that His Honor should have submitted to the jury the issue of guilt of- the lesser offense.
The record contains abundant evidence to support a conviction of assault and battery of a high and aggravated nature, but as I view it the evidence is conflicting as to each circumstance relied upon by the State to prove the assault was an aggravated one. If I understand the majority opinion correctly, the main basis or predicate thereof is the conclusion that the evidence conclusively establishes that the defendant inflicted “serious bodily harm” upon the officer. At least inferentially the officer received minor first *408aid treatment at the hospital immediately following the altercation. The record contains no evidence of any disability on his part or any further medical treatment. The only evidence of substance throwing any real light upon the nature or seriousness of his injuries was the photographs; these reflect black eyes, four or five relatively minor lacerations, bruises or abrasions about the face and head and some, but not extensive, bleeding. In brief, I think the photographs reflect quite painful but not necessarily serious injuries.
The defendant admittedly struck more than one blow with only his fist. There is evidence, however, from the State’s witnesses, including Officer Whitmire himself, that in the course of the melee he was struck blows by several patrons of the restaurant other than the defendant. At least one reasonable inference from the evidence is that the patrons were motivated to action by what they considered brutal and improper conduct on the part of the officer. In any event, even from the State’s evidence, it is clearly inferable that not all of Officer Whitmire’s injuries were inflicted by the defendant.
As far as I have been able to ascertain this Court has never had occasion to attempt to define with anything like precision what constitutes “serious bodily injury”, which alone would render an otherwise simple assault one of a high and aggravated nature. Reference to Vol. 38A, p. 450, Words and Phrases “Serious Bodily Harm or Injury” shows that a number of jurisdictions have had occasion to consider .the term “serioüs bodily injury” in this connection, and it appears that the most common definition of the term is that such means a grave, not trivial, injury; “such an injury as gives rise to apprehension of danger to life, health, or limb.” While no doubt quite painful, there is nothing in the record here to show that the injuries sustained by Whitmire were of any more than temporary duration without any real apprehension of danger to his life, health or limbs.
*409In conclusion, I most respectfully submit that we are not warranted in holding that the evidence conclusively establishes that the defendant inflicted serious bodily injury upon the officer. Under the circumstances of this case, I think that at the most, the State’s evidence created a jury issue as to whether the officer sustained “serious bodily injury”, and even assuming that he did, it was clearly a jury issue as to just who, or who all, inflicted such injury upon him. It, of course, follows naturally that the question of simple assault should have been submitted to the jury.