(dissenting).
I respectfully disagree with my learned colleagues in their reversal of this record because of the trial judge’s inadequate instructions to the jury on the definition of assault.
They reason that in the absence of the refinement of the word assault the jury was therefore uninformed and unable to make an intelligent judgment as to the defendant’s guilt.
The court’s charge as found in the bill of exceptions is quoted verbatim in pertinent part in order to bring into focus the pivotal point of reversal by the majority:
“The statutory law applicable is found in Section 39-607 of the Tennessee Code Annotated, which is as follows:
‘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 in the penitentiary not less than three (3) years nor more than fifteen (15) years. If the assault is committed by means of a deadly weapon, whether injury results to the person assaulted or not, the penalty on conviction shall be imprisonment in the penitentiary for not less than five (5) years nor more than twenty-one (21) years.’
“An attempt in criminal law is an apparent unfinished crime, and hence is compounded of two elements: (1) the intent to commit a crime; and (2) a direct act done towards its commission, but falling short of the execution of the ultimate design. It need not, therefore, be the last proximate act to the consummation of the crime in contemplation, but it is sufficient if it be an act apparently adopted to produce the result intended.
“In order for the defendant to be convicted, you must find from the proof that the defendant intended to commit robbery and that he committed an assault upon the person of Gary Burleson in the furtherance of the attempt of the defendant to commit the robbery. The punishment varies according to whether or not a dangerous weapon is used in the assault.
“The gist of the offense of robbery is the taking with felonious intent of any money, goods or other personal property of any value, from the person of another, or in his presence, against his will, by force or violence or by putting him in fear, with intent to permanently deprive him of said property.
“The force required by law may consist of physical violence, directly applied, or *96it may be constructive, by threats or otherwise putting in fear the person robbed and thereby overcoming his will.
“The fear constituting an element of robbery is fear of present personal peril from violence offered or impending.
“To constitute robbery, when the taking of the property is accomplished by force or violence, the force must have been either before or at the time of the taking; and must have been of such a nature as to show that it was intended to overpower the party robbed or to prevent resistance on his part.
“Though no violence is used, robbery may be committed by putting in fear the party robbed by threats or other acts of intimidation, but the fear must have been such as to create in the mind of the party robbed a reasonable apprehension of danger, and such fear must have been before or during the time of the commission of the offense.
“Resistance of the party robbed is not required but however slight the resistance of the party may have been, if force was used by the defendant to overcome it, this is sufficient to constitute the crime of robbery. But if the property was taken by stealth or fraud, and without force, intimidation or putting in fear, the crime, if any, may or may not be larceny from the person or larceny, but is not robbery.
“Armed robbery is where the force applied and or the fear induced at the time and during the robbery was with a deadly weapon.
“A deadly weapon is an instrument which from the use made of it at the time is likely to produce death or inflict bodily harm.
“To be guilty of armed robbery one need not strike or hit or shoot or cut or otherwise injure the party robbed. It is only necessary in this regard that the robber had and presented at the time a deadly weapon in such a way and manner as to induce the fear necessary to cause the party robbed to surrender his property.”
We first note in considering the above charge that in defining “an attempt”, in the first paragraph immediately following the statement of the statute, T.C.A. 39-607, the words used are also very close to the definition of an “assault”, of which the two essential elements are intent and action. We further note that throughout the trial judge’s full exposition of the law of robbery, the elements of assault, intent to harm and an attempt and apparent ability to do so, are covered in their essence in more than one passage.
The jury in reporting their verdict explicitly found the defendant guilty of committing an assault with the intent to commit robbery without the use of a deadly weapon. Of course, use of a deadly weapon in robbery provides far greater punishment, as incorporated in the statute. We make this observation to bolster our conclusion that this jury was not uninformed and did intelligently make a judgment as to the guilt of this defendant and as to which offense his actions constituted.
Richels v. State, 33 Tenn. 606, relied upon by the majority, does not support their reasoning as I view the question. In that case a reversal was ordered because of the erroneous charge of the trial court to the effect that pointing a pistol at another is of itself an assault. That is not the question on the facts as presented here. The defendant here pointed the pistol at the victim and accompanied this act with a threat and an order. It was therefore for the jury to say whether his intent was to assault the victim. The finding by the jury that the defendant had acted without a deadly weapon, does not necessarily of itself evince the finding that it was not the intent of the defendant to assault the victim and to rob him, or the finding that the victim was aware that the weapon was not deadly.
*97The majority reasons from their quoted authorities in substance thusly, to sustain their remanding this record: there is nothing in the record to indicate the clerk was in fear. Yet from the authorities enumerated it is crystal clear that the presence or absence of the necessary intent is for the jury to determine. When the defendant pointed the pistol at the clerk and demanded money and was refused he then snapped the pistol and said, “You were lucky this time. I’ll be back and get you the next time.” It would be complete conjecture and speculation to say as here there was no assault. Yet the majority reasons that the charge fails to explain to the jury the necessary definition of what is an assault. As I view the charge it adequately covered the offense in plain simple language that could be and was understood by the laymen jury.
The charge as given defined the offense of robbery with exactness. The charge therefore defined or conveyed to the jury sufficient facts to be apprised, and guided them as to the elements of assault. The terms “violence” and “force” are synonymous when used in relation to assault and include any application of force even though it entails no pain or bodily harm. See 6 C.J.S. Assault and Battery § 62, p. 917. The intention to do the harm is the essence of assault and is to be ascertained by the jury from the circumstances. Ri-chels v. State, supra. I therefore feel that the charge was sufficient and full, in the absence of a request for additional or more complete instructions. See Powers v. State, 117 Tenn. 363, 371, 97 S.W. 815, and Carter v. State, 1 Tenn.Cr.App. 237, 240, 435 S.W.2d 134, 135.
I consider that the court’s charge sufficiently apprised the jury of the law constituting the offense. At worst the charge was meager. In the absence of a request for additional or fuller explanation, it was not error. See Poe v. State, 212 Tenn. 413, 421, 370 S.W.2d 488.
It is elemental and axiomatic that the elements of an attempt to rob include the elements of assault. One cannot attempt to rob without committing an assault. Hence, an adequate charge on attempted robbery is also an adequate charge on assault. Furthermore, an “assault” is such a plain, ordinary, everyday term that the layman juror does not need a legal treatise to define it for his understanding.
I would affirm the judgment.