                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT JACKSON



EARNEST HAWKINS,                             )
                                             )
          Petitioner,                        ) C. C. A. NO. 02C01-9709-CC-00374
                                             )
vs.

BILLY COMPTON, WARDEN,
                                             ) LAKE COUNTY
                                             )
                                             ) No. 97-7687
                                                                     FILED
                                             )                     March 10, 1998
          Respondent.                        )
                                                                     Cecil Crowson, Jr.
                                                                     Appellate C ourt Clerk

                                           ORDER



                 This matter is before the Court upon the state’s motion to affirm the

judgment of the trial court in accordance with Rule 20, Rules of the Court of Criminal

Appeals. It appears the petitioner was indicted for first degree murder in January 1981.

It further appears the petitioner pled guilty to the indicted offense and received a life

sentence. The petitioner has since filed a petition for a writ of habeas corpus

challenging the sufficiency of the indictment entered against him. The trial court denied

relief.



                 On appeal, the petitioner argues that the indictment is invalid because it

failed to assert an essential element of the offense, i.e., the mens rea, and that his

conviction, therefore, cannot stand.



                 At the time of the offense in this case, first degree murder was defined as

"[e]very murder perpetrated by means of poison, lying in wait, or by other kind of willful,

deliberate, malicious, and premeditated killing, or committed in the perpetration of, or

attempt to perpetrate" several enumerated felonies, including robbery. T.C.A. § 39-2-

202 (1982).



                 Although the petitioner is challenging the sufficiency of the indictment, he

has failed to include a copy of the indictment in the record. T.R.A.P. 24. Accordingly,
the petitioner has waived the issue and this Court, therefore, is precluded from

conducting an adequate review on appeal. See State v. Ballard, 855 S.W.2d 557

(Tenn. 1993).



              Nevertheless, the petitioner alleges that the indictment at issue before us

charged that the petitioner “did unlawfully, feloniously, willfully, deliberately and

maliciously kill and murder [the victim] during the perpetration of attempted robbery.”

This language was sufficient under the law as it existed at the time. The statutory

requirements for an indictment were found in T.C.A. § 40-1802 (now § 40-13-202

(1997)), which provided simply that:


              The indictment must state the facts constituting the offense in
       ordinary and concise language, without prolixity or repetition, in such a
       manner as to enable a person of common understanding to know what is
       intended, and with that degree of certainty which will enable the court, on
       conviction, to pronounce the proper judgment.



Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis

supplied), while addressing the sufficiency of an indictment charging the offense of

murder, our Supreme Court stated the following:


                While it seems clear that the indictment in Witt was insufficient in
       that it failed to charge an element, that the murder was committed
       unlawfully, in either the language of the statute or common law or words
       of equivalent import, the decision is confusing because of the language,
       ‘fatally defective in omitting the charge that the offense was committed
       feloniously, or with malice aforethought; and containing no words of
       equivalent import.’ It is clear, however, that had the indictment used the
       words ‘feloniously’ or ‘unlawfully’, it would have been sufficient.



              We agree with this proposition. By containing the words found in the

language of the statute, the indictment at issue here sufficiently apprised the petitioner

of the offense charged under the law at the time, and is therefore valid. See Charles

Edward Orren v. Howard Carlton, Warden, No. 03C01-9704-CR-00141 (Tenn. Crim.

App., Feb. 13, 1998). The petitioner seems to suggest that the omission of

"premeditated" voids his conviction. What the petitioner fails to realize, however, is that

he was charged with felony murder, which, under this statute, does not require a finding

                                              2
of premeditation.



                   Although not controlling in the present case,1 the Supreme Court’s recent

opinion in State v. Hill, 954 S.W.2d 725 (Tenn. 1997) supports our conclusion. The

Court stated that “an indictment need not conform to traditionally strict pleading

requirements” and that “in modern practice, it is unnecessary to charge guilty

knowledge unless it is included in the statutory definition of the offense.” Id. at 729.

Having reviewed the language of the indictment in this case, we find that it would suffice

under the Supreme Court’s analysis of the current statutory requirements of notice and

form.



                   Accordingly, we find that the indictment at issue meets constitutional and

the then-existing statutory requirements, and is therefore valid. It is therefore

ORDERED that the judgment of the trial court is affirmed in accordance with Rule 20,

Rules of the Court of Criminal Appeals.



                   Enter, this the ___ day of March, 1998.




                                                         ___________________________
                                                         DAVID G. HAYES, JUDGE



                                                         ___________________________
                                                         PAUL G. SUMMERS, JUDGE



                                                         ___________________________
                                                         JOE G. RILEY, JUDGE




         1
             The decision in Hill is based upon the Court’s interpretation of T.C.A. § 39-11-301, which was
ena cted in 198 9. Th at sta tute p rovid es, in pertin ent p art, th at “[a] culpa ble m enta l state is req uired within
this title unless the definition of the offense plainly dispenses with a mental element.” Prior to 1989,
however, the Criminal Code did not contain a comparable provision.

                                                             3
