            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                          OCTOBER 1997 SESSION
                                                      December 18, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
RANDY HENSLEY,               *    C.C.A. # 03C01-9703-CR-00106

             Appellant,      *    JOHNSON COUNTY

VS.                          *    Hon. Lynn Brown, Judge

STATE OF TENNESSEE,          *    (Habeas Corpus)

             Appellee.       *




For Appellant:                    For Appellee:

Randy Hensley, Pro Se             John Knox Walkup
# 099477 NECC                     Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683           Michael J. Fahey, II
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  David E. Crockett
                                  District Attorney General
                                  Route 19, Box 99
                                  Johnson City, TN 37601




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                                  OPINION

                  The petitioner, Randy Hensley, appeals the trial court's denial of his

petition for habeas corpus relief. The single issue presented for review is whether

his indictments for robbery and assault with intent to commit murder, both of which

led to convictions,1 were void for the failure to include all of the essential elements of

the crime. In particular, the petitioner argues that his indictments failed to assert the

requisite mens rea. It is the contention of the petitioner that, due to the faulty

indictments, the trial court lacked jurisdiction to enter a conviction or impose a

sentence.



                  We affirm the judgment of the trial court.



                  The Greene County indictments at issue provided, in part, as follows:

                  Count One: [D]id unlawfully and feloniously and forcibly
                  take from the person of another ... [the victim] ... by
                  violence or putting [the victim] in fear. The robbery was
                  accomplished by the use of a deadly weapon.

                  Count Five: [D]id unlawfully and feloniously and with
                  malice aforethought assault [the victim] with the intent to
                  commit murder in the first degree....



                  A writ of habeas corpus may be granted only when the petitioner has

established lack of jurisdiction for the order of confinement or that he is otherwise

entitled to immediate release because of the expiration of his sentence. See Ussery

v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d

839 (Tenn. Crim. App. 1969). Habeas corpus relief is available in this state only



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          In co unt o ne, th e def end ant w as fo und guilty as char ged and r ece ived a life se nten ce; in
count five, the defendant was convicted of the lesser offense of assault and battery and received a
sentence of eleven m onths, twenty-nine days. Habeas corpus relief is inappropriate for count five
because that sentence has already been served; the defendant is only incarcerated now for the
service o f his life sente nce. See Tenn. Code Ann. § 29-21-101. We will nevertheless address the
merits of the issue.

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when it appears on the face of the judgment or the record that the trial court was

without jurisdiction to convict or sentence the defendant or that the sentence of

imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992).



              Tennessee Code Annotated § 39-11-301(c) (1989) provides that "[i]f

the definition of an offense within this title does not plainly dispense with the mental

element, intent, knowledge or recklessness suffices to establish the culpable mental

state." In State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-00267 (Tenn. Crim.

App., at Nashville, June 20, 1996), rev'd, _____S.W.2d _____, No. 01-S-01-9701-

CC-00005 (Tenn., at Nashville, Nov. 3, 1997), a panel of this court ruled that the

statutory offense of rape did not "plainly dispense" with a mens rea of the crime and

thus, the indictment, which did not allege a mens rea, did not include an essential

element of the offense and was, therefore, void.



              On appeal, our supreme court overruled the intermediate court

opinion, holding as follows:

              [F]or offenses which neither expressly require nor plainly
              dispense with the requirement for a culpable mental
              state, an indictment which fails to allege such mental
              state will be sufficient to support prosecution and
              conviction for that offense so long as

                     (1) the language of the indictment is
                     sufficient to meet the constitutional
                     requirements of notice to the accused of
                     the charge against which the accused must
                     defend, adequate basis for entry of a
                     proper judgment, and protection from
                     double jeopardy;

                     (2) the form of the indictment meets the
                     requirements of Tenn. Code Ann. § 40-13-
                     202; and

                     (3) the mental state can be logically
                     inferred from the conduct alleged.

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Hill, _____S.W.2d_____, slip op. at 3. The court ultimately ruled that the indictment

for aggravated rape was sufficient because "the act for which the defendant [was]

indicted, 'unlawful sexual penetration' ... is committable only if the principal actor's

mens rea is intentional, knowing, or reckless. Thus, the required mental state may

be inferred from the nature of the criminal conduct alleged." Id., slip op. at 9.



              Generally, an indictment must set forth the elements of the offense.

State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992). It is settled law that

"[w]hen the indictment or presentment fails to fully state the crime, all subsequent

proceedings are void." Id. (citing State v. Morgan, 598 S.W.2d 796, 797 (Tenn.

Crim. App. 1979)). The historical significance of the indictment is well documented

in the federal courts:

              The general ... and universal rule ... is that all the
              material facts and circumstances embraced in the
              definition of the offense must be stated, or the indictment
              will be defective. No essential element of the crime can
              be omitted without destroying the whole pleading. The
              omission cannot be supplied by intendment or
              implication, and the charge must be made directly, and
              not inferentially or by way of recital.

United States v. Hess, 124 U.S. 483, 8 S. Ct. 571, 573 (1888). The provisions of

our state and federal constitutions guarantee the criminally accused knowledge of

the "nature and cause of the accusation." U. S. Const. amend. VI; Tenn. Const. art

I, § 9. "Fair and reasonable notice of the charges against an accused is a

fundamental constitutional requirement." State v. Trusty, 919 S.W.2d 305, 309

(Tenn. 1996). To be sufficient, an indictment must "inform the defendant of the

precise charges; ... must enable the trial court upon conviction to enter an

appropriate judgment; ... and must protect [the] defendant against double jeopardy."

Id. As a matter of fairness, the constitutional requirement is designed to afford the

criminally accused with an adequate opportunity to prepare any defense before the

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trial. See, e.g., Pope v. State, 258 S.W. 775 (Tenn. 1924); Daniel v. State, 50 Tenn.

257 (1871).



              Such a rigid rule has occasionally caused harsh results from the

perspective of the state. At times, convictions have been set aside even though the

prosecution gains no advantage:

                      At common law, even the slightest technical defect
              might fell an indictment. Sir Matthew Hale lamented the
              strictness with which indictments were viewed as a
              "blemish and inconvenience of the law" whereby
              "heinous and crying offenses escape by these unseemly
              niceties to the reproach of the law, to the shame of the
              government, and to the encouragement of villainy, and to
              the dishonor of God." 2 Sir Matthew Hale, The History of
              the Pleas to the Crown, 193 (London E. Ryder 1800)
              (1716).

United States v. Wydermyer, 51 F.3d 319, 324 (2d Cir. 1995).



              In our view, the indictments in this case satisfy all of the requirements

of Hill. Initially, the intermediate court's opinion in Hill was based in part on Tenn.

Code Ann. § 39-11-301(c) (1989), which provided that "[a] culpable mental state is

required ... unless the definition of the offense plainly dispenses with a mental

element." The 1982 Act under which the defendant was convicted contains no

similar provision. Thus, the indictment need only set forth the elements of the

offenses as they were defined at the time of the unlawful act. See Gregory L.

Hatton v. State, No. 02C01-9611-CC-00407, slip op. at 2-3 (Tenn. Crim. App., at

Jackson, Feb. 19, 1997).



              Robbery was defined as the "felonious and forcible taking from the

person of another, ... by violence or putting the person in fear." Tenn. Code Ann. §

39-2-501(a) (repealed 1989). The indictment adequately sets forth those elements,

as it alleges the defendant "feloniously and forcibly [took] from the person of another

                                            5
... by violence or putting [the victim] in fear" and that the robbery was "accomplished

by the use of a deadly weapon ...." Moreover, under Hill, the use of force supports

the logical inference that the robbery was an intentional act; that the defendant used

a deadly weapon to accomplish the act also supports that inference.



              The indictment for assault is also sufficient. Assault with intent to

commit murder occurred under the 1982 Act when a person "feloniously and with

malice aforethought assault[ed] any person, with intent to commit murder ...." Tenn.

Code Ann. § 39-2-103 (repealed 1989). This indictment charged that the defendant

"did unlawfully and feloniously and with malice aforethought assault ... with the

intent to commit murder in the first degree ...." In our view, that adequately sets

forth the elements of the offense as it was defined when the defendant committed

the crime. In the alternative, by use of the rule established in Hill, the phrases

"malice aforethought" and "with intent to commit murder" support the inference that

the act was intentional.



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
David H. Welles, Judge



_____________________________
Jerry L. Smith, Judge




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