I must respectfully dissent.
Both the trial court and all the members of this reviewing Court have found as a matter of settled fact that the agency used to induce the fear necessary to accomplish the robbery was not capable of producing the deadly results the danger of which must have been the basis for the enhancement of the penalty for the crime if accomplished by the use of a deadly weapon.
I agree with the cases cited by the majority that as a general matter it is irrelevant whether the weapon used was incapable of being fired. Particularly do I agree with the statement quoted from Moore v. Commonwealth, 260 Ky. 437, 86 S.W.2d 145, by our Supreme Court in Turner v. State, 201 Tenn. 562, 300 S.W.2d 920, to the effect that it is not necessary for the indictment to charge, or the State to prove, that a gun used to commit a robbery was loaded and capable of being used as a firearm, and that the person assaulted with an apparently deadly weapon has the right to assume that it is capable of the use for which such weapons are generally intended. Above all I subscribe to the proposition that such a person will not be required to subject himself to the “danger of first endeavoring to ascertain those facts before yielding to the demands of the robber.”
This case is readily distinguishable from Turner, in my considered opinion, and falls more nearly into the category of the “toy pistol” case described in Cooper v. State, 201 Tenn. 149, 297 S.W.2d 75, and Luitze v. State, 204 Wis. 78, 234 N.W. 382. The latter case holds that an unloaded pistol cannot be regarded as a dangerous weapon within the meaning of an armed robbery statute.
The legislative intent behind the armed robbery statutes is correctly set out in Burgin v. State, 217 Tenn. 682, 400 S.W.2d 539, as quoted by Judge Oliver for the majority: “to prevent the kind and character of violence which often attends the use of a deadly weapon in the perpetration of a robbery.” However, earlier the Supreme Court, in Cooper, supra, rejected the suggestion that it is the fear engendered that should be considered rather than the actual danger posed by the use of a deadly weapon when it pointed out:
“In so far as the victim’s fear is concerned, it is immaterial as to whether that fear was induced by the display of a toy pistol thought by the victim to be real, or the pointing by the robber in his coat pocket of his finger or hand so as to make the victim believe the bulge to be a pistol which the robber intended to use in the event of the victim’s resistance. In either instance, the robber is equally as guilty. He accomplished the taking by putting his victim in fear.
“Therefore, if the Court accepts the State’s suggestion as to the legislative intent and alleged resulting legal implication, then, by the same token, it would follow that the Court must hold that such use of such finger or hand in such pocket so as to simulate the possession and threat to use a pistol brings it about that the robbery was ‘accomplished by the use of a deadly weapon’ within the meaning of the 1955 statute, and, therefore, a jury’s sentence to electrocution *338for the use of such finger or hand must be upheld, rather than remanding the cause for the fixing of a penitentiary sentence of not less than five nor more than fifteen years, that being the punishment provided when the robbery is not ‘accomplished by the use of a deadly weapon’. As the Court views it, the contemplation of such a result strongly militates against the accuracy of. the State’s interpretation of the legislative intent in the use of the expression ‘deadly weapon’ in this 1955 amendment.
“Often, an intended victim of a robbery in process is strongly inclined to resist. If the robber is in possession of a deadly weapon, he is the more likely to use it in the event of such resistance, and such use is likely to result in the death or great bodily harm of the intended victim. The fear of receiving the extreme punishment inflicted by law in the event of such use, or threatened use, would tend to prevent the employment of such a weapon in the accomplishment of the crime, and thereby would be prevented the use of a violence which might be deadly in effect.
“It is the Court’s opinion, therefore, that the intent of the legislature in the enactment of the 1955 amendment was to prevent the kind of violence which often attends the use of a deadly weapon in the perpetration of robbery.”
Boiled down to its essential element, it is the danger to human life that the law seeks to reduce. The crime is the same whether the fear is caused by a shotgun that the victim has loaded himself or by a doubled up fist that appears capable of striking the victim in the nose. Property is taken by threatened force and violence. But the law is relatively appreciative of a robber’s decision to employ his fist rather than a knife or other agency capable of producing death efficiently, and fixes a lesser punishment if the criminal forbears the use of such a weapon. We should encourage robbers to use non-deadly weapons in their trade (or rather discourage the use of deadly ones) and this was the result sought by the 1955 amendment creating a distinction between the two types of robbery.
There is a difference between the cases such as Turner, supra, and the instant one. In Turner the jury was justified in believing that the gun was loaded. The defendant’s contention, made days after the robbery, that the shotgun was not loaded was incredible; and the jury had every right to infer that the gun was in fact fully loaded. But what would have been the result if, as in this case, Turner had demonstrated to the victim that the shot gun was not loaded? Suppose he had said, “Don’t worry. This gun isn’t loaded. I’ll break it down and prove it isn’t loaded and point it the other way and pull the trigger. As a matter of fact, after doing that I will leave it broken down and hold it by the barrel and just use it as a stick, because if you resist all I need to do is knock you down with its butt, and I don’t want to risk hurting you too badly.” Assuming those facts, would the decision in Turner have been the same? No, because the very purpose of the statute — to insulate the victim from the danger of deadly violence — would have been served. The crime still would have been serious, and a robbery accomplished in such a relatively considerate and humane manner would still have earned Turner up to 15 years in the penitentiary, but it would not have justified the forfeiture of his life by electrocution. In the record before us it has been proved, as it was not in Turner, that (he weapon was not deadly.
The situation is analogous to a prosecution for assault with intent to commit first degree murder in which it is proved beyond doubt that the defendant pointed an unloaded pistol at someone in order to frighten him. The victim under such circumstances may be even more frightened than many who are faced with actual, not just apparent, sudden death. But since there is no threat to life involved, there could of course be no conviction for an intent to take it. *339In a prosecution for such an intended homicide it would be sufficient to prove the use of a deadly weapon which would be presumed loaded and capable of killing, but in the face of proof to the contrary this presumption would give way. See generally 40 C.J.S. Homicide § 168 and the cases cited.
In this case it was not necessary to prove . either that the weapon was, or was not, capable of inflicting death. But in the impartial search for truth it was established beyond doubt that the pistol was no more a threat to the victim’s life than was the toy pistol to the victim in Cooper, supra. This entitles the perpetrator of such a proved non-deadly crime to be treated more favorably than those who actually pose a direct threat to the lives of their victims.
Cooper v. State, supra, has never been overruled and is still the law in Tennessee. It does not stand alone for the obvious proposition that a toy cannot be termed a deadly weapon. It emphasizes and reiterates the settled law that produced its ruling, and I find nothing in Turner or any other case that changes the following, which fits the proved facts in this case like a glove:
“The 1955 amendment is highly penal. With reference to such a statute, the rule uniformly followed in this jurisdiction is stated in Richmond v. State, 171 Tenn. 1, 6, 100 S.W.2d 1, 2, as follows:
‘ “It has long been the well settled general rule that penal statutes are subject to the rule of strict construction. They will not be construed to include anything beyond their letter even though within their spirit, and nothing can be added to them by inference or intendment.” Such have been the uniform decisions of this court’, citing cases.”
Cooper v. State, supra.
The majority opinion does violence to the settled law by holding as a matter of law an object was a deadly weapon that was proved as a matter of fact to be non-deadly. This invades not just the spirit but the literal letter of the law.
For the reasons set forth above, I would reduce the conviction to simple robbery.