          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                       AUGUST SESSION, 1997


                                                     FILED
PAUL ROBERT MASON,           )                   September 09, 1997
                             )   No. 02C01-9611-CC-00404
      Appellant              )                    Cecil Crowson, Jr.
                             )   LAKE COUNTY      Appellate C ourt Clerk
vs.                          )
                             )   Hon. JOE G. RILEY, JR., Judge
BILLY COMPTON, WARDEN,       )
                             )   (Writ of Habeas Corpus)
      Appellee               )



For the Appellant:               For the Appellee:

PAUL ROBERT MASON, Pro Se        CHARLES W. BURSON
Register Number 108925           Attorney General and Reporter
Rt 1, Box 330
Tiptonville, TN 38079-9775       ELIZABETH T. RYAN
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 C. PHILLIP BIVENS
                                 District Attorney General
                                 P. O. Drawer E
                                 Dyersburg, TN 38024




OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                           OPINION



       The appellant, Paul Robert Mason, appeals the trial court's dismissal of

his pro se petition for writ of habeas corpus. On October 14, 1985, the appellant

pled guilty to one count of aggravated rape in the Maury County Circuit Court

and was sentenced to twenty years incarceration in the Tennessee Department

of Correction. The appellant filed the instant petition on September 20, 1996,

alleging that the judgment entered against him is void because the indictment

failed to allege the mens rea of the offense charged. The trial court properly

dismissed the petition on the basis that "allegations concerning the sufficiency of

the indictment are not the proper subject of habeas corpus relief." 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); Barber v. State, No. 01C01-9408-CR-

00281 (Tenn. Crim. App. at Nashville, Feb. 23, 1995). Accordingly, we affirm the

trial court's dismissal of the petition.



       Moreover, we find the substance of the appellant's claim to be without

merit. The appellant's reliance upon State v. Hill, No. 01C01-9508-CC-00267

(Tenn. Crim. App. at Nashville, June 20, 1996), is misplaced. The decision in Hill

involves a post-1989 indictment and specifically addresses Tenn. Code Ann. §

39-11-301(c)(1989) (requirement of a culpable mental state). The appeal now

before this court involves a pre 1989 Code indictment. Prior to 1989, the Code

did not contain a provision comparable to Tenn. Code Ann. § 39-11-301(c).

Accordingly, the decision in Hill does not control review of the issue before us.



       On the date of this offense, aggravated rape was defined as the "unlawful

sexual penetration of another" accompanied by an enumerated aggravating

circumstance, including that "the victim is less than thirteen years old." Tenn.

Code Ann. § 39-2-603(a)(4)(1982). The indictment in the present case charged


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that the "[appellant] did unlawfully and feloniously, with force and coercion,

sexually penetrate . . . a ten year old minor child. . . ." This language was

sufficient under the law as it existed at the time. See Campbell v. State, 491

S.W.2d 359, 361 (Tenn. 1973) (an indictment using the words "feloniously" or

"unlawfully" is sufficient). This issue is without merit.



        The trial court's dismissal of the appellant's petition for writ of habeas

corpus is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.



                                    ____________________________________
                                    DAVID G. HAYES, Judge



CONCUR:



_____________________________
JERRY L. SMITH, Judge


____________________________
THOMAS T. WOODALL, Judge




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