¶1Opinion of the Court hy
¶2The appellant was indicted by the grand jury of Benton county, for a felonious assault. The indictment was framed under the 35th section of the second article of the act concerning crimes and punishments. The jury found the defendant guilty, and assessed as his punishment a fine of fifty dollars, and twenty-seven days imprisonment in the county jail.
¶3It appears from the bill of exceptions, that the appellant had an altercation with one Hughes, and struck the said Hughes with a stick of timber, and a fight ensued between the said appellant and Hughes, during which several blows on the head were inflicted by Johnston with the stick aforesaid. After the parties were separated, it was further proved by the prosecutor, that Johnston immediately seized an axe, and attempted to strike Hughes, but was prevented. This last testimony was objected to by defendant. Motions for a new trial and in arrest of judgment were made, but overruled by the court.
¶4The error assigned in this court is, that the indictment was for a felony, and the judgment against appellant was for a misdemeanor. This is a mistake originating, I suppose, *184¡a a misunderstanding of the definition of the word felony by our statute. A felony under our act, is an offence for which the party may be imprisoned in the penitentiary. The legislature have wisely left it to the discretion of the jury, in many offences to inflict the punishment of imprisonment the penitentiary, or fine and imprisonment in a county jail ; and the offence charged in this indictment is one of them. Though this discretion is given to the juries, they are still felonies.
¶5. . . . 1 he circuit court committed no error in permitting the witnesses to describe the whole altercation between appellant and Plughes. The bill of exceptions shows clearly that when the combatants were separated, the appellant immediately raised an axe at Plughes. It was a continuous transaction, and as such, the whole of it properly went to the jury. Judgment affirmed.