         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE                FILED
                         FEBRUARY 1998 SESSION             June 25, 1998

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

JAMES RUSSELL GANN,                )
                                   )   No. 03C01-9707-CR-00274
           Appe llant,             )
                                   )   Morga n Cou nty
vs.                                )
                                   )   Honorable E. Eugene Eblen, Judge
STATE OF TENNESSEE,                )
                                   )   (Habeas Corpus)
           Appellee.               )



FOR THE APPELLANT:                     FOR THE APPELLEE:

PRO SE                                 JOHN KNOX WALKUP
                                       Attorney General & Reporter

                                       TIMOTHY E. BEHAN
                                       Assistant Attorney General
                                       Cordell Hull Bldg., Second Floor
                                       425 Fifth Avenu e, North
                                       Nashville, TN 37243-0493

                                       CHARLES E. HAWK, JR.
                                       District Attorney General

                                       FRANK HARVEY
                                       Assistant District Attorney
                                       P. O. BOX 703
                                       KINGSTON, tn 37763


OPINION FILED:____________________



AFFIRMED


WILLIAM B. ACREE, JR.
SPECIAL JUDGE
                                         OPINION

       The appe llant, Ja mes Russ ell Gan n, app eals a s of righ t the trial c ourt’s
dismiss al of his pe tition for a writ of h abeas corpus . We affirm the tria l court.


       In 1985, the appellant was convicted of aggravated rape and aggravated
sexual battery. The controlling sentence was 99 years and one day. The
convictions were upheld on direct appeal. See State v. Gann, 733 S.W.2d 113,
(Tenn.Crim.App. 1987). The appellant then filed a petition for post-conviction
relief which was denied. That decision was upheld in State v. Gann,
(Tenn.C rim.App. 198 8, LEXIS 7 14).


       The first issue presented for review is that the indictments did not allege a
culpa ble m ental s tate an d are th erefor e invalid . The a ppella nt relies upon this
Court’s decision in State v. Rog er Da le Hill, (No. 01C01-9508-CC-00267
(Tenn.C rim.App.), filed June 20, 1996, at N ashville).


       The appellant’s reliance upon this case is misplaced. This decision was
reversed by the Su preme Court at State v. Hill, 954 S.W .2d 725 (Te nn. 1997). 1


       1
         Before the Supreme Court’s reversal of Hill, this issue was addressed by this
Court several times. See Hatton v. State, (No. 02C01-9611-CC-00407,
Tenn.Crim.App., filed February 19, 1997, at Jackson; Smith v. Compton (No. 02C01-
9701-CC-00018, Tenn.Crim.App., filed April 3, 1997, at Jackson; Gooch v. Compton
(No. 02C01-9612-CC-00465, Tenn.Crim.App., filed March 13, 1997, at Jackson; Smith
v. Hessing, (No. 02C01-9708-CC-00311, filed December 11, 1997, at Jackson; Nowell
v. Compton (No. 02C01-9612-CC-00464, Tenn.Crim.App., filed April 9, 1997, at
Jackson. In these cases, we held that the petitioners could not rely upon Hill because
(1) the sufficiency of an indictment cannot be tested in a habeas corpus proceeding, (2)
Hill applies to crimes committed after the 1989 amendments to the criminal code, and
(3) if Hill did apply, the indictments in these cases were sufficient under the law existing
at the time. The facts in Nowell v. Compton are identical to the facts herein. We held:

“The indictments at issue before us charged that the petitioner "did unlawfully and
feloniously sexually penetrate [the victim, a person] less than thirteen (13) years of age"
and "did unlawfully and feloniously have sexual contact with [the victims, persons] less
than thirteen (13) years of age." 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) (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
       The appellant also contends that he is entitled to relief because (1) the trial
court e rred in d ismiss ing his petition withou t a hea ring; (2) the trial c ourt er red in
failing to appoint coun sel; (3) the affidavit of comp laint and arrest wa rrant were
invalid and void; and (4) the trial co urt erred in charging the jury with
uncon stitutional jury in structions .


       The law controlling these issues is well established in Tennessee.


       “The reme dy of ha beas corpu s is limite d to ca ses w here th e judg men t is
void or the term o f imprisonm ent has expired .” Passa rella v. State , 891 S.W.2d
619, 62 6 (Ten n.Crim .App. 19 94). “If the issu e is an ab ridgem ent of a
constitutional right, then the remedy is throu gh the Pos t-Conviction Re lief Act.”
Lewis v. M etro Ge n. Sess ions Ct., 949 S.W .2d 696, 699 (Tenn.C rim.App. 199 6).
“If the petition does not allege facts which would establish relief, then an
evidentiary hearing is not necessa ry.” Pass arella, 891 S.W .2d, at 627 , Russell v.
W illis, 427 S.W.2d 529, 531 (Tenn. 1969). ”It is elementary that a habeas corpus
petition may be dismissed without a hearing, and without the appointment of
counsel for a hearing, unless it alleges facts showing the denial of state or federal
constitutional rights or so me fatal jurisdictional fault.” State v. Henderson, 421
S.W.2d 635, 636-37 (Tenn. 1967). “If the affidavit of complaint and arrest warrant
were invalid and void that would not prevent a valid judgment of conviction from
being obtained.” See State v. Compton, (No. 02C01-9602-CC-0043,
(Tenn.Crim.App., filed August 2, 1996, at Jackson). ”The only method of
collaterally attacking a judgment because of constitutional deprivations
occasione d by erroneo us instructions is by pe tition for post-conviction relief.”
Turne r v. State, (No. 01C01-9608-CC-00365 (Tenn.Crim.App., filed September
30, 1997, at N ashville).




       There are no facts or allegations in the appellant’s petition which if true



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 indictments 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.”
would estab lish tha t the jud gme nts are void or th at the a ppella nt has served his
sentence. The dismissal of the petition for writ of habeas corpus is affirmed.




                                  ___________________________________
                                  WILLIAM B. ACREE, JR., SPECIAL JUDGE




CONCUR:


___________________________________
JERRY L. SMITH, JUDGE


____________________________________
THOMAS T. WOODALL, JUDGE
