                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                              AT JACKSON



MARVIN ANTHONY MATTHEWS,                           )
                                                   )
        Petitioner,                                ) C. C. A. NO. 02C01-9712-CC-00465
                                                   )
vs.                                                ) LAUDERDALE COUNTY
                                                   )
ALTON HESSON, WARDEN,

        Respondent.
                                                   ) Nos. 5021, 5022
                                                   )
                                                   )
                                                                                  FILED
                                                                                    March 10, 1998

                                                                                  Cecil Crowson, Jr.
                                                 ORDER
                                                                                  Appellate C ourt Clerk




                 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. The petitioner was indicted on one count of third degree burglary in May

1984, and he subsequently pled guilty to the same. The petitioner has since filed a

petition for writ of habeas corpus challenging the sufficiency of the indictment entered

against him. The trial court denied relief.1



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

failed to assert an essential element of the offense and that his conviction, therefore,

cannot stand. At the time of the offense in this case, third degree burglary was defined

as "the breaking and entering into a business house, outhouse, or any other house of

another, other than a dwelling house, with the intent to commit a felony." T.C.A. § 39-3-

404 (1982). The indictment at issue before us charged that the petitioner



        did commit the offense of burglary in the 3rd degree by unlawfully,
        feloniously and burglariously breaking into and entering THE BUSINESS
        HOUSE OF HALLMARK BUILDERS, INC., A CORPORATION with intent
        to unlawfully, feloniously and burglariously to steal, take and carry away


        1
           The petitioner filed two petitions for writs of habeas corpus in the trial court challenging the
sufficiency of the indictment in two separate cases, a 1984 third degree burglary conviction and a 1988
larceny conviction. The trial court denied relief in each instance and the petitioner filed notice of appeal
from both judgments. The records were transmitted to this Court and consolidated under the same
docket num ber. In his appellate brief, however, the petitioner only addresses the third degree burglary
case. Accordingly, he has waived any issues pertaining to the larceny matter. Nonetheless , we have
reviewed the entire re cord on appea l and we fin d no reve rsible error in the larcen y case.
       the personal property therein contained, the proper goods and chattels of
       HALLMARK BUILDERS, INC., A CORPORATION.


              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.


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.



              The petitioner seems to suggest that the omission of the statutory

language "or any other house of another, other than dwelling house" voids his

conviction. What the petitioner fails to realize, however, is that the statute classifies

those buildings or houses which are subject to third degree burglary. The indictment in

this case charged the petitioner with breaking and entering a building or house

specifically classified by the statute, i.e., a business house. The language the petitioner

claims should have been included in the indictment simply defines the other types of

buildings or houses belonging to the protected class. The petitioner was not charged

with breaking and entering into any other building or house of another. Accordingly, the

petitioner's argument is without merit.



              Having reviewed the entire record on appeal, 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.



                                              2
___________________________
DAVID G. HAYES, JUDGE



___________________________
PAUL G. SUMMERS, JUDGE



___________________________
JOE G. RILEY, JUDGE




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