(concurring in part and dissenting in part).1
Since the trial court proceedings, considered as a whole, compel the conclusion *294that the applicable statutory provisions to be compared for purposes of Blockburger analysis are the statutes upon which the defendant was indicted, rather than upon the statutes which the majority apparently speculates as having been interposed through jury instructions, I must respectfully dissent.
The pertinent inquiry in the action sub judice is whether Pryor has been subjected to multiple punishments for the same offense in violation of the double jeopardy clause. Of this constitutional guarantee, Judge Blackmun has recently commented:
The only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended. It serves, in my considered view, nothing more. “Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).
Whalen v. United States, 445 U.S. 684, 697, 100 S.Ct. 1432, 1440, 63 L.Ed.2d 715 (1980) (Blackmun, J., concurring in judgment). Justice Blackmun additionally suggested:
I believe that the Court should take the opportunity presented by this case ... to hold clearly that the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed.
Id. 100 S.Ct. at 1441. Blackmun’s position was adopted by the Supreme Court in its most recent pronouncement upon multiple punishments within the context of the double jeopardy clause:
Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishment, imposition of such sentences does not violate the Constitution.
Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 1141, 67 L.Ed.2d 275 (1981) (footnote omitted). It is incumbent upon this Court, therefore, to ascertain and defer to legislative intent. See also: Pandelli v. United States, 635 F.2d 533, 536 (6th Cir.1980).
Legislative intent may not be defined without first identifying the distinct criminal offenses upon which the allegedly unconstitutional imposition of multiple punishments has been predicated. Pryor was indicted upon the offenses of (1) assault with intent to commit premeditated murder in the first degree (Indictment B-60818, First Count) and (2) assault with intent to commit robbery with a deadly weapon (Indictment B-60819). The criminal offense incorporated in Indictment B-60818 is proscribed by T.C.A. § 39-6042 and § 39-2402(1)3 whereas the criminal offense incorporated in Indictment B-60819 is proscribed by T. C.A. § 39-6074 and § 39-3901.5 Confronted with a silent legislative history of these pertinent statutory provisions, the principles of statutory construction enunciated in Blockburger for identifying multiple punishments arising from the same offense attach:
*295[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). See also: Albernaz, supra, 101 S.Ct. at 1141; Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); Ianelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 1285, 43 L.Ed.2d 616 (1974); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). Application of the Blockburger criteria to the case at bar compels the conclusion that the Tennessee legislature intended to punish assault with intent to commit premeditated murder and assault with' intent to commit robbery with a deadly weapon as separate violations. Assault with intent to commit robbery with a deadly weapon includes among its elements (1) intent to commit robbery, i.e., intent to feloniously and forcibly take from the person of another goods or money of any value by violence or by putting the person in fear and (2) an overt act involving the use of a deadly weapon. See T.C.A. §§ 39-607, -3901, supra. Contrawise, assault with intent to commit premeditated murder includes among its elements (1) intent to commit premeditated murder, i.e., a willful, deliberate, malicious and premeditated killing and (2) an overt act. See: T.C.A. §§ 39-604, -2402(1), supra. Clearly each indicted criminal offense “requires proof of an additional fact which the other does not.” Indeed, the majority concedes “[i]t is clear that the legislature of Tennessee intended to punish premeditated murder and robbery separately.” In sum, when the separate and distinct statutory provisions upon which Pryor was indicted are construed as the applicable statutory provisions which must be “compared” for Blockburger analysis, no violation of double jeopardy guarantees has been sustained by Pryor.
The majority, however, keystones its decision upon the erroneous conclusory and legally unsupported hypothesis that the trial court’s jury instruction served to interpose Tennessee’s statutory “felony-murder” provision into the trial thereby evoking a Blockburger comparative analysis of said “felony-murder” statute with the statutory provision proscribing against the separate and distinct offense of assault with intent to commit robbery with a deadly weapon as charged in Indictment B-60819. Distilling Tennessee’s first degree murder statute to its “relevant” provision of felony-murder under the principles of Whalen, Vitale and Pandelli, the majority concludes that Pryor has been subject to double jeopardy since, under Blockburger analysis, “the evidence that could support a conviction for robbery is all that is needed to support a conviction of assault with intent to kill.” The majority has conspicuously failed to reference any legal precedent in support of the proposition that statutory provisions other than those upon which the defendant had been indicted may be compared under Blockburger to ascertain if the defendant was subjected to cumulative punishments for the same offense, nor does Whalen and its progeny support such a proposition. On the contrary, without exception, all Supreme Court pronouncements in this constitutional area have compared the two statutory provisions upon which the defendant had been indicted. See: Brown v. Ohio, supra; Whalen v. United States, supra; Albernaz v. United States, supra; Illinois v. Vitale, supra; Blockburger v. United States, supra. See also: Pandelli v. United States, supra. Collectively, this authority clearly dictates that a Court reviewing a double jeopardy assignment of error is required to reduce each of the statutory provisions upon which the defendant was indicted to its relevant segment for purposes of Blockburger analysis. However, no language in any of these cases infers that a reviewing court may abandon for Blockburger purposes the statutes upon which the defendant was indicted and substitute as the “relevant” statutes those which have in some manner been interjected into the trial. Simply, the Whalen line of authority is inapposite to rather than dispositive of the double jeopardy issue before this Court.
The undisputed facts of record, which command the inescapable conclusion that no rational juror could have concluded that Pryor was on trial for anything other than assault with intent to commit premeditated murder, simply cannot be ignored. This *296trial attained its genesis in two indictments. The very existence of Indictment B-60818, charging Pryor with assault with intent to commit premeditated murder, discloses that the state, subsequent to investigating the criminal offense and exercising its prerogative to seek a grand jury indictment upon those charges which were deemed appropriate, presented evidence to a grand jury sufficient to support an indictment charging assault with intent to commit premeditated murder. Indictment B-60818 contained no alternative charge of assault with intent to commit first degree murder during the perpetration of a felony.
At trial, the evidence overwhelmingly supported all of the elements of the offenses as incorporated in the indictments. The victim and eyewitness to the criminal act testified as follows:
A. Okay, uh-huh. He called me — came up to me just like that, so I turned and walked away from him. So he hit me right here (indicating). It burst this a loose and knocked me down, got blood all in my eyes and everything. ’Course however this has been sewed up now, you know. Since I went to the hospital and everything. Then after he knocked me down he started beating on me with that pipe, that stick, or wEitever you call it, you know. And ah, the money that I had in my front pocket he went in there and got that.
******
[metal cane identified]
A. Yeah, that’s what he had. He had it in his hand when he called me up to him. That’s right, show did and start beating me with this thang. After he knocked me down, kept on beating me and he told me, I’m going to kill you man, I’m going to kill you. Give me some more money. ******
A. Well, he said, I’m going to kill you, black motherfucker, I’m going to kill you. He kept saying that.
Q. All right sir,—
A. He kept telling me that, at the time he was beating me with this (indicating)-
******
Q. Mr. Winbush, how many times were you struck with this pipe?
A. Well, all I know, I was hit lots of times with that pipe. I couldn’t just say exactly how many times. I know I was hit lots of times with it.
Accordingly, testimony of the victim, John Winbush (Winbush), whose veracity was not challenged, conclusively evidences that Pryor violently assaulted his victim with a metal cane, a dangerous weapon,6 with intent to feloniously and forcibly take money from Winbush’s person. Such evidence supports a conviction upon the criminal offense of assault with intent to commit robbery with a deadly weapon as charged in Indictment B-60819.
Subsequent to robbing Winbush, Pryor commenced the conduct upon which Indictment B-60818 was predicated, as demonstrated by Pryor’s vicious and repeated striking of his helpless victim, who was lying on the ground, while exclaiming his intention to kill: “I’m going to kill you, man, I’m going to kill you. Give me some more money.” When no further money was tendered, Pryor continued to relentlessly beat his victim. This language and conduct fully supports the conclusion that Pryor had *297formed an intent to kill Winbush and had proceeded to the best of his ability to execute this intent. Pryor assaulted Winbush with the intent to commit premeditated murder as charged in Indictment B-60818.
The theory of the state’s case in Indictment B-60818 was founded on premeditated murder. The state produced no evidence relevant to felony-murder. Nor did the state, in closing argument, submit or suggest any legal theory or factual evidence which could have encouraged or stimulated the jury to return a verdict upon felony-murder.
The jury instructions reflected a complete, accurate and concise statement of applicable legal principles devoid of constitutional infirmities. In defining first degree murder the trial court charged directly from the applicable statute:
An individual commits murder in the first degree if (1) he commits a willful, deliberate, and malicious and premeditated killing or murder; or (4) he commits a willful, deliberate and malicious killing or murder during perpetration of any arson, rape, robbery, etc.
The passing allusion to felony-murder within the definition of first degree murder was not objected to by Pryor at any stage of the trial court proceedings although the record fully discloses that a meaningful opportunity to object had been presented.7 More pertinently, this is the only causal reference to felony-murder during the entire trial or jury instructions. Upon defining first degree murder, the trial judge thereupon immediately distinguished felony-murder from premeditated murder with his instruction specifying the elements of the latter offense with the following comprehensive language:
The distinctive feature of murder in the first degree is premeditation, and involves a previously formed design, or actual intention to kill. It is not necessary that such design should have been conceived or preexisted in the mind for any definite period of time anterior to its execution. It is sufficient if it precede the actual assault, howsoever short the interval of time may be; for the length of time is not the essence of this element of this offense. And the purpose to kill is no less premeditated, in the legal sense of the term, if it were deliberately formed but a moment before the killing, than if it had been formed an hour before. The mental state of the assailant at the time, rather than the length of time the act may have been premeditated, is the material point to be considered. The question of importance is, “Was the mind of the assailant, at the moment of the killing, so far free from excitement or passion as to be capable of premeditating, as before explained, and was the death of the party slain the object sought to be accomplished by the slayer?”
Detailed instructions were provided delineating the lesser included offenses of Murder in the First Degree, assault with intent to commit robbery with a deadly weapon (as charged in Indictment B-60819) and its lesser included offenses. Finally, the jury was specifically instructed to render a verdict on only those charges incorporated in the indictments:
When you consider your verdict in indictment # 60818 you will first inquire, Is the defendant guilty of an Assault with Intent to Commit Murder in the First Degree as charged in the First Count of the indictment? * * * (emphasis added).
The following verdict was returned by the jury:
[T]he Jury upon their oath do say:
DOCKET NO: B-60818: “We, the jury, find the defendant guilty of an assault with intent to commit murder in the First Degree as charged in the first count of the indictment and fix his punishment at imprisonment in the state penitentiary for not less than 6 years nor more than 21 years.”
DOCKET NO: B-60819: “We, the Jury, find the defendant guilty of assault with intent to commit robbery with a deadly *298weapon as charged in the indictment and fix his punishment at imprisonment in the penitentiary of the state for not less than 10 years nor more than 21 years.” (emphasis added).
The record counsels that the jury was provided access to the indictments during deliberations.
In sum, examination of the trial proceeding in its entirety compels a finding that no rational juror could have concluded that Pryor was on trial for anything other than assault with intent to commit premeditated murder and assault with intent to commit robbery with a deadly weapon as charged in the Indictments. Nor could any rational juror have concluded that the jury instructions authorized a verdict of “guilty” of assault with intent to commit first degree murder as charged unless the evidence supported, beyond a reasonable doubt, a finding of premeditation. The pertinent statutory provisions for purposes of Blockburger analysis, therefore, were those upon which Pryor was indicted. Since, as aforenoted, the Tennessee legislature clearly contemplated assault with intent to commit premeditated murder and robbery as separately punishable offenses, the trial court did not exceed its legislative authority by imposing punishments for each offense and Pryor has sustained no abrogation of double jeopardy guarantees. Albernaz, supra, 101 S.Ct. at 1145.
The petition for a writ of habeas corpus should be denied.
ORDER
A majority of the Judges of this Court in regular service have voted for rehearing of this case en banc. Sixth Circuit Rule 14 provides as follows:
The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this Court, to stay the mandate and to restore the case on the docket as a pending appeal.
Accordingly, it is ORDERED that the previous decision and judgment of this Court is vacated, issuance of the mandate is stayed and this case is restored to the docket as a pending appeal. The Clerk will direct the parties concerning the filing of supplemental briefs.
. I concur with the majority that the Tennessee Court of Criminal Appeals’ determination that two separate and distinct offenses had been committed does not constitute a factual determination entitled to a presumption of validity under 28 U.S.C. § 2254(d).
. 39-604. Assault with intent to commit murder — Penalty — -Whoever shall feloniously and with malice aforethought assault any person, with intent to commit murder in the first degree, ... shall, on conviction, be imprisoned. ..
. 39-2402. Murder in the first degree — An individual commits murder in the first degree if: (1) he commits a willful, deliberate, malicious and premeditated killing or murder; * * *
. 39-607. Assault with intent to commit robbery — Penalty — Whoever shall assault another, with intent feloniously and willfully to commit a robbery, shall, on conviction, be imprisoned. ..
. 39-3901. Robbery — Penalty — Robbery is the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear. * *
. The jury charge provided:
“A dangerous or deadly weapon is any weapon or instrument which, from the manner in which it is used or attempted to be be used, is likely to produce death or cause great bodily harm.
In determining what is a dangerous weapon, the test is whether or not the weapon used would be likely to cause death; if one strikes another with a weapon with sufficient' force, and if the one struck might die as a result of the attack made on him, this is a deadly weapon.”
. Other sections of the jury instructions had been challenged both before the jury retired to deliberations and subsequent thereto through a motion for a new trial.