1 The petiti oner also cl aims that the t rial j udge erred in findi ng that t he suffici ency of an i ndictment cannot be chall enged in a habeas corpus proceeding. Because we resolve this matter on ot her grounds, we n eed not a ddre ss th at cla im. 

# FILED
December 15, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

CARL E. SAINE , ) ) Petitioner, ) C. C. A. NO. 02C01-9710-CC-00399 ) vs. ) LAUDERDALE C OUNTY ) ALTON HESSON, WARDEN, ) No. 4983 ) Respondent. )

O R D E R

This matter is before the Court u pon the state’s motion to affirm the judgment of the trial court i n accordance with Rule 20, Rules of the Court of Crimi nal Appeals. It appears the petiti oner was originall y convicted of rape in S eptember 1977, and sentenced to ninety-fiv e years imprisonment. On July 21, 1997, the petitioner filed a petition for a writ of habeas corpus challenging the sufficiency of the indictment entered agains t him. Th e trial

court d enied re lief.
Although the record on appeal does not contain a copy of the ind ictment, 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 es sential element of the offense, i.e., the mens rea, and that his conviction, the refore, cannot stand. 1

At the time of the offense in this case, r ape was defined as the “the unlawful carnal knowl edge of a woman, forcibly an d against her will .” T.C.A. § 39-3701 (1975). The indictment at issue before us allegedly charged that the p etitioner did “unlawfully, and felonious ly have carnal know ledge of Patricia McEntee, a female over the age of twelve (12)

years forcibly and against her will.” This language was su fficient2 The decision i n Hill is based upon t he Court’s i nterpretation of T.C.A. § 39-11-3 01, 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 t itl e unless the def init ion of th e offense plai nly di spenses with a mentalelement.” Pri or to 1989, however, the

Criminal Code di d not contai n a comparable provi sion. 2 under the law as it ex

isted at the time. The statutory requirements for an indictment were found in § 40-1802 (now § 40-13-202 (1997)), w hich provided simply

that:
The indictment must state the facts const ituting the offense in ordinary and concise l anguage, without prol ixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degr ee of certainty which w ill 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), w hile addressing the sufficien cy of an indictment chargi ng the offense of murder, our Sup reme Court stat ed the following:

While it seems clear that the indictment i n Witt was insufficient in that it failed to charge an el ement, that the murder was committed unlawfully, in either

the language of the statute or common law or words of equivalent import, the dec ision is confusing because of the language, ‘fatally defective in omitting the charge that the offense was committed feloniously, or wit h malice aforethought; and containi ng no words of equivalent import.’ It is clear, however, that h ad the indictment used the words ‘feloniously’

or ‘unlawfully’

, it would have been sufficient.
We agree with this proposition. B y containing the w

ords found in the language of the statute, the indictment at issue here suff iciently apprised the appellant of the offen se charged under the law at the time, and is therefore val id.
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 nee d 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 off ense.” Moreover, having reviewed the alleged language of the indictment in this case, we find that it would suffice under the Supreme Co urt’s analysis of the cur rent statutory requi rements of notice and for

m.3 Accordingly, w

e 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 o f the trial court is affirmed in accordance with Rule 20 , Rules of the Court of Criminal Appeals.

Enter, this the ___ day of Dec ember, 1997.

______________________________ PAUL G. SUMMERS, JUD GE

______________________________ JOE B. JONES, PRESIDING JUDGE

______________________________ DAVID G. HAYES, JUDG E