                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                              AT JACKSON



CARL E. SAINE,                                     )
                                                   )
        Petitioner,                                ) C. C. A. NO. 02C01-9710-CC-00399
                                                   )
vs.                                                ) LAUDERDALE COUNTY
                                                   )
ALTON HESSON, WARDEN,

        Respondent.
                                                   ) No. 4983
                                                   )
                                                   )
                                                                        FILED
                                                                        December 15, 1997

                                                                        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. It appears the petitioner was originally convicted of rape in September 1977,

and sentenced to ninety-five years imprisonment. On July 21, 1997, the petitioner filed

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

entered against him. The trial court denied relief.



                 Although the record on appeal does not contain a copy of the indictment,

thereby preventing this Court from conducting an adequate review of the issue

presented, the petitioner argues in his appellate brief 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.1



                 At the time of the offense in this case, rape was defined as the “the

unlawful carnal knowledge of a woman, forcibly and against her will.” T.C.A. § 39-3701

(1975). The indictment at issue before us allegedly charged that the petitioner did

“unlawfully, and feloniously have carnal knowledge of Patricia McEntee, a female over

the age of twelve (12) years forcibly and against her will.” This language was sufficient


        1
          The petitioner also claims that the trial judge erred in finding that the sufficiency of an indictment
cannot be challenged in a habeas corpus proceeding. Because we resolve this matter on other grounds,
we n eed not a ddre ss th at cla im.
under the law as it existed at the time. The statutory requirements for an indictment

were found in § 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 appellant of the offense

charged under the law at the time, and is therefore valid.



                   Although not controlling in the present case,2 the Supreme Court’s recent

opinion in State v. Hill, No. 01S01-9701-CC-00005 (Tenn., Nov. 3, 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.” Moreover,

having reviewed the alleged 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.



         2
             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.

                                                             2
              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 December, 1997.




                                          ______________________________
                                          PAUL G. SUMMERS, JUDGE



                                          ______________________________
                                          JOE B. JONES, PRESIDING JUDGE



                                          ______________________________
                                          DAVID G. HAYES, JUDGE




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