              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON                    FILED
                                                                       April 3, 1997
GARLAND POWELL,                           )
                                                               Cecil Crowson, Jr.
                                          )                     Appellate C ourt Clerk
       Petitioner,                        ) C. C. A. NO. 02C01-9612-CC-00483
                                          )
vs.                                       ) LAUDERDALE COUNTY
                                          )
JIMMY HARRISON, WARDEN,                   ) No. 4870
                                          )
       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 denial of the

petitioner’s petition for writ of habeas corpus. The record was filed on December 24,

1996, and the petitioner filed his brief on January 24, 1997. The petitioner was

originally indicted, among other things, for first degree murder in April 1975, and was

convicted of the same in January 1976. 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

charging him with murder during the perpetration of a robbery 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 the petitioner

failed to allege a proper ground for habeas corpus relief. 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, person was guilty of first degree

murder if he or she "committ[ed] a willful, deliberate and malicious killing or murder

during the perpetration of [one of the enumerated felonies, including robbery].” T.C.A. §

39-2402 (1975). The indictment at issue before us charged that the petitioner did

“unlawfully, feloniously, willfully, deliberately and maliciously kill and murder [the victim],

during the perpetration of a robbery.” 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:



                                               2
                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 March, 1997.




                                           __________________________________
                                           JOE G. RILEY, JUDGE




                                           __________________________________
                                           JOE B. JONES, PRESIDING JUDGE




                                           __________________________________
                                           PAUL G. SUMMERS, JUDGE




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