              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON



JAMES W. MASSENGALE,                      )
                                          )
       Petitioner,                        ) C. C. A. NO. 02C01-9702-CR-00068
                                          )
vs.                                       ) SHELBY COUNTY
                                          )
STATE OF TENNESSEE,                       ) No. P-17673
                                          )
       Respondent.                        )



                                        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 dismissal of the

petitioner’s petition for writ of habeas corpus. The record was filed on February 19,

1997, and the petitioner filed his brief on March 13, 1997. The petitioner was originally

indicted on one count each of aggravated rape and armed robbery in June 1981, and

was subsequently found guilty of the same in October 1981. In the present appeal, the

petitioner, relying in part upon State v. Roger Dale Hill, No. 01C01-9508-CC-00267

(Tenn. Crim. App. June 20, 1996), 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. 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. Hill represents a direct appeal from a case

involving an indictment rendered subsequent to the 1989 revisions to the Criminal

Code. Conversely, the appeal in the present case stems from a denial of a petition for

writ of habeas corpus and involves an indictment issued prior to the 1989 changes in

the Code. The opinion in Hill was based upon this Court’s interpretation of T.C.A. § 39-

11-301(c), which was enacted in 1989. That statute provides, in pertinent part, that “[a]

culpable mental state is required 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 statute. Accordingly, the decision in Hill does not control

our review of the issue raised herein.



              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 force or coercion is used to accomplish the

act and the defendant is armed with a weapon or that the defendant causes personal

injury to the victim. T.C.A. § 39-2-603 (1982). Robbery was defined as “the felonious

and forcible taking from the person of another, goods or money of any value, by

violence or putting the person in fear.” T.C.A. § 39-2-501(a) (1982).



              The indictments at issue before us charged that the petitioner “did

unlawfully and feloniously engage in sexual penetration . . . [with the victim] by the use

of weapons, to-wit: a shotgun and a pistol, and did thereby force or coerce [the victim]

to submit to sexual penetration . . and cause personal injuries to the said [victim],” and

“did unlawfully, feloniously and forcibly take from the person [of the victim money of

value], with the intent to convert the same to their own use and to deprive the true

owner thereof, by the use of force and violence, by the use of dangerous and deadly

weapons . . . or by putting the [victim] in fear of bodily injury.”



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

noted above, the Criminal Code did not contain a provision similar to § 39-11-301(c)



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(1989). 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. Thus, the

petitioner’s attack must fail.



              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 May, 1997.




                                           __________________________________
                                           PAUL G. SUMMERS, JUDGE


                                              3
__________________________________
DAVID G. HAYES, JUDGE




__________________________________
JOE G. RILEY, JUDGE




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