              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON



WILLIAM EDWARD WHITT,                      )
                                           )
       Petitioner,                         ) C. C. A. NO. 02C01-9704-CC-00140
                                           )
vs.                                        ) LAKE COUNTY

STATE OF TENNESSEE,
                                           )
                                           ) No. 97-7593            FILED
                                           )
       Respondent.                         )                      July 1, 1997

                                                                   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 under Rule 20, Rules of the Court of Criminal Appeals. The

case before this Court represents an appeal from the trial court’s denial of the

petitioner’s petition for writ of habeas corpus. The record was filed on April 8, 1997,

and the petitioner filed his brief on April 21, 1997. Although the record does not contain

a copy of the indictment at issue, thereby precluding the Court from conducting an

adequate review, the petitioner asserts in his brief that he was originally indicted for

aggravated rape in October 1985, and subsequently convicted of the same. In the

present appeal, the petitioner contends the judgment entered against him is void

because the indictment failed to allege the mens rea of the offense charged.



              Having reviewed the state’s motion in light of the petitioner’s response

and the entire record on appeal, we conclude that the motion is well-taken and should

be granted. The trial judge dismissed the petitioner’s petition, stating that “[a]llegations

concerning the sufficiency of an indictment are not subject to habeas corpus relief.”

The trial court also overruled the petitioner’s motion to reconsider the order dismissing

the original petition. It is well established that challenges to the sufficiency of an

indictment cannot be tested in a habeas corpus proceeding. See Haggard v. State, 475

S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn.

Crim. App. 1969). A panel of this Court recently held the same in a capital case.
Barber v. State, No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 1995).



               Nonetheless, we have considered the substance of the petitioner’s claim

and determine it to be without merit. At the time of the offense in this case, aggravated

rape was defined as the “unlawful sexual penetration of another accompanied” by

certain enumerated aggravating circumstances, including that the defendant causes

personal injury to the victim. T.C.A. § 39-2-603 (1982). The petitioner contends the

indictment at issue here charged that the petitioner did “unlawfully and feloniously

engage in sexual penetration of [the victim] by use of fear and coercion and

accompanied by and causing personal injury to [the victim].” This language was

sufficient under the law as it existed at the time. The statutory requirements for an

indictment were found in § 40-1802 (now § 40-13-202 (1990)), 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 appellant of the offense

charged under the law at the time, and is therefore valid. See State v. Dison, No.

03C01-9602-CC-00051 (Tenn. Crim. App., Jan. 31, 1997). Thus, the petitioner’s attack

must fail.




                                               2
              For the reasons stated above, it is hereby ORDERED, pursuant to Rule

20, Rules of the Court of Criminal Appeals, that the judgment of the trial court

dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall

be assessed against the petitioner.




              Enter, this the ___ day of June, 1997.




                                          __________________________________
                                          DAVID G. HAYES, JUDGE




                                          __________________________________
                                          JOE B. JONES, PRESIDING JUDGE




                                          __________________________________
                                          JOE G. RILEY, JUDGE




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