The opinion
McDONALD, Judge,
concurring in part and dissenting in part.
I feel that this case was correctly disposed of in the original opinion. As I pointed out therein, the State failed to meet the burden of establishing, beyond a reasonable doubt, the requisites of “robbery by assault”. I cannot see how the complaining witness could have “FEAR” engendered in her by something she did not see. It was not she, but her sister, who testified that she saw a pistol. Her sister wasn’t carrying the lard bucket with the money in it.
As I pointed out in the original opinion, the facts surrounding jury misconduct would alone warrant a reversal of this case.
Since I feel very keenly that a correct disposition was made of this case in the original opinion, I would overrule the State’s motion for rehearing without written opinion. I am certainly not dissenting to the disposition of this case, so far as a reversal is concerned. While I concur in the reversal on account of jury misconduct, I dissent so far as the majority opinion finds the •evidence sufficient to sustain threatened violence to satisfy the rule set forth in Van Arsdale v. State, supra. I cannot see in this case any actual or threatened violence to the person ante *140 cedent to the loss of the money. The complaining witness said, “He taken the bucket and went on.” She said again: “He just taken hold of it and pulled it out of my arms.” To me, this set of facts does not fit the passive resistance shown in Bryant, cited in the majority opinion on this motion. Bryant said he was afraid and allowed his slot machine to be taken. As I view it, this case is just the same as a “purse-snatching case”.