(concurring) :
I agree that the doctrine of collateral es-toppel does not bar another trial in this case but I reach this conclusion by a different route than that taken by the majority •
In my view the action by the jury in the first trial did not in effect constitute the *504rendition of inconsistent verdicts, which in criminal cases where there are multiple counts have been recognized as proper and consistently upheld on appeal. I deem instructive on this point the comment by Professor Bickel, which although made in the context of a civil trial, seems on principle equally applicable to jury action in a criminal case. He stated:1
Compromise verdicts are distinguished . from inconsistent ones. The jury will render a compromise verdict, by definition, when it could not as an entity make up its collective mind on the issue of liability itself; that is, the jury is hung. Where the verdicts are inconsistent, the explanation is that the jury as a whole was convinced that liability existed, but considered mitigating circumstances or other factors which moved it, again as a whole., not to impose the full consequences of the decision it had reached. These distinctions are not insignificant; the fundamental notion is that parties to a law suit are entitled to the true, unclouded judgment of all twelve jurymen, and that only when it is plainly evident that the verdict does not in fact embody the considered, final, and individual decisions of all twelve jurors will it be upset, other infirmities to the side. (Footnote omitted.) (Emphasis added.)
I believe all we can conclude from the jury’s verdicts in appellant’s first trial is that it rendered two acquittals and was unable to make up its collective mind on ap-pellee’s guilt or innocence on the obstruction of justice count, thus rendering the trial of that charge a nullity. Hence, I am of opinion that we may not conclude from the verdicts rendered in the first trial that the jury, as a whole, was exercising a form of lenity in acquitting on two counts and hanging on the third count — the rationale for accepting inconsistent verdicts.
Accordingly, I see the question presented us as whether the trial court has correctly concluded in this case that the jury’s acquittal of appellee on the charge of threats at his first trial determined an ultimate issue of fact, viz., appellee did not threaten complainant (another police officer), so as to preclude the government under the familiar principle of collateral estoppel from trying appellee again on the charge of obstructing justice by force and threats.
Our task, when faced with this kind of issue, has been defined by the Supreme Court to be
[to] examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. [Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed. 2d 469 (1970).]
Undertaking such an examination in this case, I find that the indictment in the first case ending in acquittal for Officer Smith 2 charged that he had “threatened to injure the person of William W. Johnson.” The prosecutor in his opening statement to the jury said:
You will hear evidence that Officer Smith had testified the day before at the trial, that he, Officer Smith, was the seizing officer. You will hear evidence that he threatened Officer Johnson, if he, Officer Johnson, testified that he was the seizing officer, that he would “wipe him out”, or kill him.
Officer Johnson, the complainant, took the stand for the government and testified *505that appellee, who was “mad”, said, “If you testify and tell the truth, I’ll lose my job” and “If I lose my job, I’ll blow you away.” Johnson further testified that he had understood and believed from these words that appellee would kill him if he testified. Johnson was quite definite in his testimony that he believed appellee was serious when he spoke these words and meant what he had said. On cross-examination, Johnson denied that he had ever before heard appellee, with whom he had worked and continues to work, use “such terms” or “similar terminology.” The complainant did testify that the words, “I’ll blow you away”, had been directed on occasion to him “in jest” by others but contended that the circumstances under which appellee spoke these same words was “different.”
When the third officer who participated with Johnson and appellee in the arrest of the narcotics offender, viz., Officer Rosa, took the stand as a prosecution witness he testified that he had heard appellee make the remark, “I’ll blow you away” to Officer Johnson, but that he had heard appellee “use worse than that” to other officers and individuals, had heard that term “at the station house” and “took it as another one of those things”, and did not construe the words as a threat to the life of Officer Johnson. He termed the complainant, Officer Johnson, as getting mad “pretty quick” and characterized appellee and Johnson as not the best of friends.
Appellee did not take the stand and the trial attorneys made their arguments to the jury. The prosecutor argued:
Now, let’s go on and examine the language of the threats. The law requires that the defendant did threaten to do injury [to] someone else — in this case, Officer William Johnson. Is there any question that the defendant threatened him? “I’ll wipe you out” — that’s a threat, isn’t it? That’s not “Good morning”, that’s not “How are you ?”— it’s a threat. Is there any question of that? None whatsoever. And, if you believe that he did threaten him, he’s guilty.
Defense counsel in his argument to the jury remarked:
Officer Rosa, the Government’s witness, said that the language used “I’ll wipe you out” — he said “I’ll wipe you out”, I believe; Johnson said, “I’ll blow you away” — Officer Rosa said that this was an “everyday” occurrence. Again, this is the language used by police officers, because we’re not talking about three ordinary citizens, three strangers; we’re talking about three police officers, who knew each other. He said this was an everyday occurrence. He stated that he did not believe it was a serious threat. . . . (Emphasis added.)
In reply, the prosecutor argued to the jury:
Now, Mr. Christmas [appellee’s counsel below] talked about vernacular and that “I’ll wipe you out” is a common thing, and that other officers say it all the time. Perhaps he would have you believe that officers walk around saying to each other, “I’ll wipe you out”. Now, Leslie Smith did not walk into that witness room and just say something miniscule to Officer Johnson something unimportant. You just don’t flip out with words like “I’ll wipe you out”, “I’ll blow you away”. . . . This is not a casual comment under any circumstances.
Finally, the trial court instructed the jury:
The second count is threatening to injure a person. The defendant in this case is charged, in count two of the indictment with threatening to injure a person. In order to find the defendant guilty as charged, the Government must prove, beyond a reasonable doubt, that the defendant, within the District of Columbia, threatened to injure the person of another, namely, William W. Johnson. (Emphasis added.)
As I read the record of the first case, summarized above, a rational jury could *506not have grounded its acquittal of appellant of threats upon a finding that the words, “I’ll blow you away” were never uttered. Rather, it seems to me that the defense succeeded in persuading the jury that given the rough and ready world in which police officers live and work the words so uttered did not intimidate or threaten the particular hearer of them, Officer Johnson. The jury’s acquittal constituted an ultimate finding of only that fact, viz, Johnson, as a case-hardened police officer, was not threatened by these words. However, to convict of obstructing justice by threats and force it is not necessary to prove the hearer himself was intimidated by the threat but rather that upon all the evidence the words uttered had “a reasonable tendency to intimidate.” 3
Thus, I am persuaded that the jury in the first case “grounded its verdict [of acquittal] upon an issue other than that which the defendant [appellee] seeks to foreclose from consideration” in this case, Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194, and hence the trial court’s order of dismissal cannot stand.
. Bickel, Judge and Jury — Inconsistent Verdicts In the Federal Courts, 63 Harv.L.Rev. 649, 654-55 (1950).
. Officers Johnson, Smith and Rosa participated (a) in the arrest of another individual for a narcotics offense and (b) the seizure from the arrestee of contraband. A dispute arose between the officers as to exactly who had done what during these events.
. Jackson v. United States, 513 F.2d 456 (D.C.Cir., 1975), citing United States v. De Stefano, 476 F.2d 324, 330 (7th Cir. 1973). Jaclcson and De Stefano arose under 18 U.S.C. 1503 (1970), the federal obstruction of justice statute, which is phrased in terms similar to our § 22-703.