dissenting:
I dissent from the majority opinion for several reasons.
First, I believe that the majority, whether it realizes it or not, has now abolished any distinction that may have existed between armed robbery and unarmed robbery. The majority states, “While ‘armed robbery’ and ‘unarmed robbery’ are not appropriately descriptive of the two degrees of robbery embraced in the statute, W. Va. Code, 61-2-12, ...”
If the terms “armed robbery” and “unarmed robbery” are not “appropriately descriptive” of the crime, they have certainly been so used over a long period of time by this Court. See, e.g., State ex rel. Mundy v. Boles, 148 W. Va. 752, 137 S.E.2d 240 (1964); State ex rel. Vandal v. Adams, 145 W. Va. 566, 115 S.E.2d 489 (1960); State v. Fulks, 114 W. Va. 785, 173 S.E. 888 (1934).
The first sentence of W. Va. Code, 61-2-12, describes the manner by which an armed robbery can be committed. The initial indictment brought against the defendant in this case did not charge the crime of armed robbery since it did not contain any of the action words set out in the first sentence of W. Va. Code, 61-2-12: “partial strangulation or suffocation,” “by striking or beating,” “by other violence to the person,” “by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever.”
*593The word “assault” is not contained in the first sentence. An assault is, of course, the threat to do violence as distinguished from the actual doing of violence, which is a battery. State v. Hatfield, 48 W. Va. 561, 37 S.E. 626 (1900); 2A Michie’s Jurisprudence Assault and Battery §§ 2 and 3. If there is any set of facts which might have constituted an unarmed robbery prior to today’s case, it would have been a robbery by assault, that is, by threatening violence. This is the theory on which the statutory indictment form distinguishes the two offenses. W. Va. Code, 62-9-1.
I recognize that State ex rel. Vascovich v. Skeen, 138 W. Va. 417, 76 S.E.2d 283 (1953), is the underpinning of the majority’s case. However, Vascovich dealt with an attempt to commit robbery and recognized that both the Attorney General and petitioner’s counsel considered the indictment in that case to be for an attempt to commit unarmed robbery.
The Court in Vascovich, 138 W. Va. at 421, disposed of the matter by stating that the words in the indictment “ ‘... feloniously put in bodily fear, ....’” charged that the defendant made a felonious assault. It then concluded that the indictment satisfied the wording of the first sentence of the robbery statute since a felonious assault is “... ‘by striking or beating, or by other violence to the person,’ ....” The indictment did not contain these latter words.
It is erroneous to treat the threat of bodily fear, which is the crime of assault, with the actual doing of bodily harm by striking or beating, as being the same act. Once the line between the threat of violence and the actual doing of violence is erased, there is no distinction between the two crimes as set out in the first paragraph of the robbery statute. W. Va. Code, 61-2-12.
Contrary to the suggestion in Vascovich, supra, there is no such crime as felonious assault in this State. Notwithstanding the captions, which have no legal effect, in Michie’s W. Va. Code, 61-2-9, -10 and -12, where the word *594“assault” is used, nowhere in the body of any of these statutes is the word “assault” to be found.
The phrase “felonious assault”, as used in Vascovich, supra, has no reference to any crime known in this State, and to state that it does is pure error. The phrase comes into use as a result of the necessity of having to use the word “felony” in a felony indictment. State ex rel. Vandal v. Adams, supra. I see nothing to be gained by perpetuating the error made in Vascovich.
My second ground of dissent centers on the fact that the majority has missed an opportunity to clarify the meaning of the robbery statute, W. Va. Code, 61-2-12. Prior to the 1931 revision, this statute was as follows:
“If any person commit robbery, being armed with a dangerous weapon, he shall be confined in the penitentiary not less than ten years, if not so armed, he shall be confined therein not less than five years.” [W. Va. Code, ch. 144 § 12 (1923)]
This Court has stated in connection with this statute that it was not designed to define the crime of robbery, but to prescribe the punishment. Franklin and Ponto v. Brown, 73 W. Va. 727, 81 S.E. 405 (1914). The statute did delineate between the crimes of armed and unarmed robbery. In this sense the statute was somewhat definitional, because two classes of robbery were set up with two distinct punishments. The statutory framework became of some importance in order to determine the appropriate penalty.
When the 1931 revision was made to the robbery statute, which is set out in the first paragraph of the present statute, it became even more definitional.1 It is *595readily apparent that the revision was designed to set forth or define those overt acts against the victim which are deemed to be of a more aggravated nature and which will result in a more severe punishment. These are set out in the first sentence of the statute. Robbery committed in any other mode was deemed to be less serious and therefore carried the lighter penalty, as found in the second sentence of the statute.
The statutory scheme seems quite obvious and it is apparent that a robbery accomplished with actual violence on the person or by the use of a firearm or other deadly weapon falls within the first sentence definition. It is commonly called an armed robbery. On the other hand, if the robbery is accomplished through threat of bodily harm and without the use of firearm or other deadly weapon, it is unarmed robbery.
The Revisers’ Notes to the 1931 Code indicate that the revised statute was to define the crime of robbery.2 This statement may have been a bit broad, since the statute does not purport to set out all the elements of common law robbery.3 Yet, it cannot be argued that the revised statute did expand the definition of what was known as armed robbery.
At common law there were no gradations in the crime of robbery. This has come about as a result of legislation,4 which has brought the terms armed and unarmed robbery into use. One suspects such legislation mainly resulted from a desire to make the punishment more compatible with the nature of the crime.
All of this may appear somewhat arcane until we turn to the facts of this case. The initial indictment was con*596ceived to be for unarmed robbery. It was on this basis that the trial court set the jury verdict of armed robbery aside.
This explains why the prosecuting attorney had the defendant re-indicted for armed robbery. The difference in the language of the two indictments, which is set out in the majority opinion, compels the conclusion that even the prosecutor knew his first indictment was for unarmed robbery. Why else would he have bothered to re-indict if he thought his first indictment was a valid armed robbery indictment?
On appeal, the State does not seriously argue that the first indictment was for armed robbery, as evidenced from its brief:
“Stated in another way, Cunningham’s premise is that a retrial obtained at the defendant’s behest must proceed on the basis of the original, defective indictment — defective in the sense that it failed to charge sufficiently the offense of which he was subsequently convicted — and not on the basis of a new indictment sufficing to charge that offense.”
The majority fails to consider the constitutional ramifications of its opinion. If a person can be indicted for armed robbery under language such as contained in the original indictment, “... that William John Cunningham ... in and upon one Orval Hoover an assault did feloni-ously make, and ... did then and there feloniously put in bodily fear ...”, the same language would just as well serve for unarmed robbery.5
*597The constitutional vice in permitting this type of procedure lies in the fact that it does not plainly inform the defendant of the nature of the offense charged. West Virginia Constitution, Article III, Section 14. State ex rel. Cogar v. Kidd, _ W. Va. _, 234 S.E.2d 899, 902 (1977).
The specific error in this case arose when the State abandoned its initial indictment for unarmed robbery after the trial court had awarded the defendant a new trial. The State could not re-indict for armed robbery under principles of due process set out in Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974).
In that case the defendant Perry was charged with the misdemeanor of assault with a deadly weapon and was convicted. He prosecuted an appeal to the next higher court which, under that state’s procedural law, entitled him to a trial de novo on this charge. The prosecutor then obtained a new indictment for the same offense, only this time it was for a felony, assault with intent to kill and inflict serious bodily injury.
The United States Supreme Court in a rather rare display of unanimity held, with only Justice Rehnquist dissenting, that the defendant’s due process rights were violated:
“A person convicted of an offense is entitled to pursue his statutory right to a trail de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Cf. United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209.” [40 L. Ed. 2d at 635]
Plainly, Perry governs the law in this case. The State can not and should not be permitted, after a defendant obtains a new trial either in the trial or appellate, to change the underlying crime so as to increase the severity of the penalty.
Finally, I would follow the reasoning in Perry, which concluded that even though the defendant plead guilty *598to the new charge, he was not precluded from raising the due process constitutionality of the proceedings:
“The ‘practical result’ dictated by the Due Process Clause in this case is that North Carolina simply could not permissibly require Perry to answer to the felony charge. That being so, it follows that his guilty plea did not foreclose him from attacking his conviction in the Superior Court proceedings through a federal writ of ha-beas corpus.” [40 L. Ed. 2d at 636]
The majority, I believe, in order to avoid the clear concepts expressed in Perry, has resorted to erasing the distinction between an indictment for unarmed robbery and armed robbery. This ultimately will do a great disservice to the orderly administration of the criminal law. Prosecutors and trial courts will not be helped by today’s decision. When criminal procedures and the definition of crimes are blurred, only the criminal defendant gains from the resulting confusion.
W. Va. Code, 61-2-12 (1931):
“If any person commit robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years. If any person commit a robbery in any other mode or by any other means, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than five years.”
Revisers’ Note, 1931 W. Va. Code, 61-2-12:
“Section 12, c. 144, W. Va. Code, 1923, is amended to define robbery. This statute is approved, in practically the same form, in Virginia and other states.”
“It is the felonious and forcible taking from the person of another, of goods or money of any value, by violence or by putting him in fear.” State v. Fulks, 114 W. Va. 785, 173 S.E. 888 (1934).
2 Wharton’s, Criminal Law and Procedure §545, et seq. (Anderson’s ed. 1957.
One has only to read the following cases which involved the validity of the sentence on a robbery conviction to realize the confusion that occurs in the trial courts as between armed and unarmed robbery indictments. Today’s majority opinion will not help this situation. State ex rel. Nicholson v. Boles, 148 W. Va. 229, 134 S.E.2d 576 (1964); State ex rel. Truslow v. Boles, 148 W. Va. 707, 137 S.E. 2d 235 (1964); State ex rel. Facemyer v. Boles, 148 W. Va. 702, 137 S.E.2d 237 (1964); State ex rel. Mundy v. Boles, 148 W. Va. 752, 137 S.E.2d 240 (1964); State ex rel. Burdette v. Boles, 148 W. Va. 758, 137 S.E.2d 244 (1964).