# FILED February 16, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1998
WILLIAM TERRY WYATT, ) C.C.A.NO. 03C01-9802-CC-00057 ) Appe llant, ) ) BLEDSOE COUNTY V. ) ) ) HON.THOMAS W. GRAHA M, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (HA BEAS CORPUS)

FOR THE APPELLANT : FOR THE APPELLEE : WILL IAM TE RRY WYAT T, pro se JOHN KNOX WALKUP Southe astern T ennes see Sta te Attorney General& Reporter Region al Corre ctional Fa cility Route 4, Box 600 ELIZABETH B.MARNEY Pikevil le, TN 37367-9243 Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petiti oner, Willi am Terry Wyatt, appeals the trial cou rt’s dism issal of h is pro se petition for writ of habeas corpus . We affirm the ju dgme nt of the trial co urt.

Petiti onerwas indicted for attempted first-deg ree murd er, esp ecially aggravated kid napp ing , ag grav ate d rap e, a nd t heft over a tho usan d dol lar s. On February 3, 1995 , Petiti oner pled guil ty to at tempted second degree murder and kidnapping. He was sentenced to concurrent terms of eight (8) and four (4) years. Although no offic ial “f iled” date appears on the pet ition, it appears that Peti tioner f iled
a pro se peti tio n for

wri t of habeas corp us in the Bl edsoeCounty Cir cuit Co urt o n August 27, 1997. The trial court denied his pe titi on on December 10, 1997. Petiti onernow brings t his appeal of the trialcour t’s di smissal of hi s petiti on for habeas corpus reli ef and rais es the fol lowing four issues: ( 1) the indi ctment charging him with attempted first degree murder was ins uffici ent because it did not al lege an overt act; (2)count two of the indi ctment chargi ng the off ense of esp ecially aggravated kidnapping was i nsuffic ient because i t did not allege the requisite mens rea ; (3) the in dictm ent ch arging him with attempted fi rst degree murder was “f lawed” because the crime occur red in White Count y, not i n Cumberland County; and (4) the trialcourt shoul d have considered his appli cation for writ of habeas corpus as a petition for p ost-con viction relief.

It is a we ll-estab lis hed p rinciple of law th at the re med y of hab eas c orpus is limitedin its nature a nd its sco pe. Archer v. State , 851 S.W.2d 157, 161-62 (Tenn. 1993); P assarell a v . State , 891 S.W .2d 619 , 626 (T enn. C rim. App . 1994). In Tennessee, habeas corpus relief is a vailable only if “‘it appears upon the face of the-3-

judgment or the recor d of the pro ceed ings u pon w hich th e judg men t is rendered’ t hat
a convicti ng cour t was without jurisdi ction or au thorit y to sentence a defendant, o r thata defendant’ s sentence of i mprisonment or oth er restr ainthas expired.” Archer , 851 S.W.2d at 164 (citation omit ted in o rigina l). The pet itioner has the burden of establi shing either

a void judgment or an ill egal confinement by a preponderance of the evidenc e. Pass arella , 891 S.W .2d at 627
. Moreover, wher e a judgment is not void, but is merel y voidabl e, such judgment may not be collate rally atta cked in a suit for habe as corp us relief. Id
.
Defenses based on defe cts in the indictment are u sually foreclosed if they are not rais ed pri or totri al. Tenn. R. Crim. P. 12(b)(2) and (f). However, Rule 12( b)(2) also provides t hat a cou rt shallnotice at any time duri ng the pendency of the proceedingsthe defense t hat the indi ctment fai ls to show j urisdic tion in the court or thatit fai ls to char

ge an offense. Dykes v. Compton , 978 S.W .2d 528 (Te nn. 1998). In the case sub judice , Petit ioner contend s that theindictm ent is so defec tive that it failedto clothe th e court w ith jurisdi ction to enter a judg ment of convic tion. A v alid indict men t is an essentialjurisdi ctional element, wi thout which there can be no prosecution
. See State v. Hill , 954 S.W .2d 725 , 727 (T enn. 19 97); State v. Stokes , 954 S.W.2d 729, 730 (Tenn. 1997). “Because a habeas corpus proce eding wil l allowus to examine t he r ecor d -- includin g the indic tment -- it is an approp riate vehicle to determine whether a jud gment is void.” Dykes v. Compton , 978 S.W.2d at 529.-4- I.

We mus t determ ine wh ether P etitione r is entit led to relief under the circumstancesof this

case. The first

defect complai ned of is tha t the ind ictme nt fails to allege an overt act. Petiti oner mainly r elies upon criminal conspi racy cases for this propo sition. A s state d by this Cour t in a sim ilar cas e, “[t]he fallacy w ith this argument i s that the in dictme nt does not char ge the a ppellant w ith consp iring to
com mit an o ff ense . Th e in dic tme nt cha rges him with the co mm ission of a subst anti ve offense, attem pt to comm it murder in the first degre e.” State v. Stampley , C.C.A. No. 02-C-01- 9409-CR-00208, slip op. at 7, Shelby County (Tenn. Cri m. App., Jackso n, Aug. 16, 19 96) (Rule 11 application den ied, Jan. 27, 199 7). The Stampleycase invol ved an indic tment almost i dentical to the indict ment in the presentcase. The indi ctment in the case bef ore us reads i n pertinent part as foll ows: [O]n the 7th day of March , 1 994, in Cum berland Co unty, Tennessee, and beforethefi ndi ng of thi s i ndi ctme n t, did unlawfully, intenti onally, delibe ratelyan d wit h premeditati on attempt to kill [vict im] in vi olation o f T .C.A. 39-12-101, and ag ainst the p eace a nd dign ity of the [S]tate of T ennes see.
This Court ruledin S tampleythat the “ language clearly all eges that t he appellant committed the offense of attempt to commit murder in t he first degree,” and t hat the issue was witho ut merit. Id . We agree with that reasoning and fi nd that the language, “did . . . attempt t o k ill [vi ctim],”

necessaril y infer

s that an over

t act was committed by Petitione r. But cf. State v. Michael K. Chri stian, Jr. , C.C.A. No. 03C01- 9609-CR-00336, Sullivan C ounty (T enn. C rim. App ., Knoxville, Mar. 23, 19 98) (R ule 11 app lication filed, M ay 26, 19 98). Th is issue is w ithout me rit.

II.-5- In the second iss ue, the defec t complained of

is the omissi on from the indict ment of anyreference to the culpable mental state of “ knowing” for the offense of especially aggravated kidnapping. Because of this omissio n, Petitione r asserts thatthe indictm ent failed to provide th e convictin g court with subj ect matter jurisdi ction to impose judgment. However, the f ailure to charge a culpabl e m en tal state is not a defect so long as the indi ctme nt performs its essenti al consti tutional and sta tutory purp oses. Hill , 954 S.W .2d at 729
.

The c ount of the indictme nt which P etitioner ch allenges states in p art: [O]n the 7th day of Marc h, 1994, in Cu mberland County, Tennessee, and before the f i nding of this ind ictme nt, did unlaw fully remove o r confine [victim] so as to inte rfere subs tantially with her libe rty and did cause [vi ctim] to suffer seriousbodily inj ury i n vio lati on of T. C.A. 39-13-305 (a)(4), and against t he pe ace and dignity of the State of Tennessee. Espe cially aggravated ki dn apping is def ined as fal se imprisonment accompanied by one o f the factors set forth in Tenn. Code Ann. § 39- 13-305. Here, the indictment allege s subsection (a)(4), namely, Petiti oner committed this offense and as a result , the vi ctim suffered seriou s bod ily injury . Tenn. Code Ann. § 39-13- 305(a)(4). The elements of t he offense i n the context of thi s case a re: (a) the unl awful and knowing removal o r confinement of another per son; (b) substantial deprivat ion of the p erson ’s libert y; and (c)the vict im sufferedserious bodily injury. Tenn. C ode Ann. § 39-13-302(a) and -305(a) (4). The mens rea for this o ffense is “knowingl y.” Wh ile the indict ment does not all ege the offens e was committed “knowin gly,” the questi on becomes whetherthe facts contained in the indictmen t are suffic ientto allege that the offens e was in fact com mitted “know ingly.” See State v.-6-

Billy Joe Sm ith , C.C.A. No. 0 3-C-01-95 08-CC-0 0250 , Un ico i Co unty ( Tenn . Cr im. App., Knoxville, Feb . 11, 1997) (m andate issue d, Oct. 9, 1998 ).

The term “unlawf ul,” as us ed in the false impri sonment stat u te, Tenn. Code Ann. § 39-13-302, means, among other thi ngs, that the offense was “accomplished by force, threat or fraud.” T enn. Cod e Ann. § 39 -13-301(2). This indic tment all eges thatthe vict im was removed or confined by Petiti oner, which necessaril y implies the
use of “force.” This alle gation, coupled with the averment t hat Petit ioner caused the victim to suffer

serious bodi ly inj ury, makes it obvious th at Petitione r desired to
com mit the offens e, and d id so kno wingly. See Smith , C.C.A. N o. 03-C-01- 9508- CC-0 0250, s lip op. at 9. T his issue is without m erit.

III.

In this issue, Pet itioner

claims that

the convic

ting court

lacked ter ritor ial jurisdi ction to try

him on the attempt ed f irst- degr ee mu rde r ch arg e becausethecri me occurred in anothe r county. Since it may be argued that venue r aises a jurisdict ional issue, and this Court

is requi red to determine whether a trial court has j urisdic tion of
a particul ar controversy, t his issuewill also be consider ed on the me rits. See State
v. Turner , 919 S.W .2d 346 , 358 (T enn. C rim. App
. 1995), per m. to appeal deni ed (Tenn . 1996).

The indict ment returned by the Cumberland County Grand Jur y states t hat the attempted murder was committed i n Cumberland County. Pet itioner made the preliminary hearin g an e xhibit to h is petiti on, and he rel ies upon the testimony of t he victim from the prelimina ry hearing where s he stated that Petiti one r attemp ted to-7-

back over her w ith a car in Spar ta, Te nnes see w hich is in Wh ite County. How ever, the victi m did not atany tim e state that this is where the attempted murder occurred. In fact, t he victi m stated that all four offenses charged in the in dictm ent oc curred in Cumberland Coun ty . Fu rt her mo re , the following incidents , which we re testified to at the pre limina ry hea ring, all o ccurre d in Cumberland County: Petiti oner fir ed several gun shots at

victi m’s feet; he hit her in the chest and back with a g un; he hit her numerous times in the face untilshe was knocked unconscious; and he would
n o t allow her to go home to get a “nit ro” patch for her chest pains. All of these instancescould be the basis f or attempted f irst degr ee murder in Count One of the indic tment. This proof i s suffi cient to establi sh venue by a preponder ance of the
e vide nce in Cum berlan d Cou nty. Te nn. C ode A nn. § 3 9-11- 201(e ). This issue is without m erit.

IV.

We not e that although it appear s Petiti oner is no l onger pursuing t he i ssu e thatthe trial c ourt sh ould h ave co nside red his applicat ion for writ of habeas corpus
as a petitio n for po st-con viction re lief, we w ill none theles s briefly address theissue. See Ten n. Co de An n. § 40 -30-2 05(c). Ther e is no evid ence in t he record that Petiti oner pursued a direct ap peal of his Februa ry 3, 1995 , guilty plea convictions. At the time t he Petiti oner’s conv iction s be came final, the statu te of li mitations applic able to post-co nvicti on proceedingswas three years. Tenn. Code Ann. § 40- 30-102 (repealed 1995) . In 199 5 , the legi slature r educed the stat utory peri od for fili ng post-convi ction petiti ons from three (3) years to one (1) year. Tenn. Code Ann. § 40-30-2 02(a). The new 1995 Post-C onvictio n Act g overn s this pe tition an d all petiti ons filed after May 1 0, 1 995. Because the pr evious thr

ee-year statute of-8-

limitat ions had not

exp ired for t he Pe ti ti oner at t he t ime the new Act too k effec t, his right to petit ion for post-co nviction relief s urvived un der the n ew Act. See Carter v. State , 952 S.W.2d 417, 420 (Tenn. 1997). As a result , the Peti tioner had one year from the effec

tive date of the new Act, May 10, 1995, to file fo r post-co nviction relief. Tenn. Code Ann. § 40-30 -202( a) and -201. T he Pe titioner file d his petition for p ostconvicti on relief

on or about August 27, 199 7. There fore, a pe tition for postconvicti on relief

would b e time-b arred. Also, the petiti on raises no v iable except ion for tolling the statute. Ten n. Code A nn. § 40-30-2 02(b).

Additio nally, P etitione r was c onvicte d in Cu mbe rland C ounty . His petiti on for
w ri t of habeas corpus was filed i n Bledsoe County, the proper venue for habeas corpus relief

but not post-conv iction relief. Comp are Tenn. Code Ann. § 40-30- 204(a) (post-c onvictio n petitio n s hall be f iled i n court where conviction occurred) with Tenn. Code Ann. § 29-21-105 ( petiti on for writ of ha beas corpu s sha ll be fil ed in court “most convenien t in poi nt of distance” to petitioner unl ess a suffi cient reas on is given in the petiti on). Accordi ngly, we concl ude that the trialcourt did not err by faili ng to treat the appl ication as o n e for pos t-conviction relief, and th erefore, a
summ ary dismissal of the petit ion was appropriate. Tenn. Code Ann. § 40-30 - 206(b).

Based on all the for egoing , we affirm th e judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:-9-

( SEE C ONC URR ING OP INION) GARY R. WA DE, Presiding J udge

__________________________________ DAVID H. WELLES , Judge

# FILED February 16, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1999 WILLIAM TERRY WYATT, ) C.C.A. NO. 03C01-9802- CC-00057 ) Appe llant, ) ) ) BLEDSOE COUNTY VS. ) ) HON.THOMAS W. GRA HAM, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Habeas Corpus)

CONCURRI NG OPINI ON I concur in t he princi pal opini on of Judge Woodall an d in the concurring opinion of Presidi ng Judg e W ade. I a m au thorize d to sa y that Ju dge W ooda ll concurs wit h this concur ring opini on.

________________________________ DAVID H. WELLES , JUD GE

# FILED February 16, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1998
WILLIAM TERRY WYATT, ) C.C.A. NO. 03C01-9802- CC-00057 ) Appellant, )

) BLEDSOE COUNTY V. ) ) HON. TH OMAS W. GR AHAM,JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (HABEAS CORPUS)

CONCURRI NG OPINI ON W hile I concur i n t he re sults reac hed by th e majo rity, I write sepa rately to address my views on the first issue; that i s, whether the i ndictment is insuffic ient to s uppo rt an atte mpte d first de gree m urder convic tion be caus e it failed to alleg e an ove rt act. The indictme nt include s the follow ing langu age:

[O]n the 7th day of March, 1994, i n Cumberland County, Tennessee
. .. [the defendant] did u nlawfully, intentionally, deli ber ately and wi th premeditat ion attemptto kill [the victi m] in viol ation of T. C.A. § 39-12- 101 .... In concluding t hat the in dictmentwas suffi cient, the majority relies upon State v. Ced ric E. Stampley , C .C.A. No. 02C0 1-9 409- CR-0 0208 , sl ip o p. at 9 ( Tenn . Cr im. App., at Jackson, A ug. 16, 1996 ), app. deni ed , (Tenn ., Jan. 27, 1 997). In Stampley , the pertine nt langua ge of the in dictme nt was a s follows:

[Stampl ey] did unlawfully attempt to commit the offense of First DegreeMurder, as def ined in T.C.A. 39-13-202; in thatthe said [Stam pley] did unlawfully, intentionally, deliberatel y and w ith prem editatio n attem pt to kill LON ZO N ICKS , in violation of T .C.A. 39 -12-101
....-12- Id. Because Stampley was char ged with a substantive of fense, the assigned panel d etermin ed that the re was n o require ment o n the pa rt of the state to include la nguag e alleging an overt a ct. Id.

In my view, t he opinion of a differ ent panel of

this cour

t in Sta te v
. Michael K. Christian, Jr. , C.C.A. No. 03C01- 9609-CR-00336, sli p op. at 13 (Tenn. Cri m. App., at Knox vill e, Mar. 23 , 1998), app. denied , (Tenn., Jan. 19 , 1999),
more accurately identifies the requir ements governing the co ntent of an indict ment. The charging i nstrument in Christi an alleged a s follows:

[The d e fendant] di d attempt to kill [the vi ctim] by stabbing [her] with a deadly weapon ... which conduct constit uted a su bstant ialste p toward th e co mmi s sion of the sai d offense. Id. Christi an had argu ed that the indictme nt was d eficient be cause it failed to encompass the com plete langua ge of the a ttempt sta tute. Id. , sli p op. at13-14. The panel held t hat an indi ctment need not quote the attempt statute s o long as the factual allegat ions incl uded the cri minal intent for a spe cific crime and an overt act inc ident there to. Id.

More recently , in Jame s R. Tw itt y v. C arlton , C.C.A. No. 03C01- 9707-CR-00310, slip op. at 4 (Tenn. Cri m. App., at Knoxville, Jan. 6, 199 9) , a panel of this

court spl it on whether an indictment which allege d "[that T witty] did unlawfully, deliberately and wit h premeditati on attemptto kill [vict im], in violat ion
o f [T. C.A.] 39 -12-101 , ...." was sufficien t to suppo rt a convictio n. The m ajority relied upon Stampley

. In his di ssent, Judge Jos eph M. Tipton quoted extens ively from Christi an in conclu ding that th e indictm ent was inadeq uate because it fai led to allege fa cts supp orting the o vert act:

The indictme nt is require d to state th e facts that constitute the offens e. T.C.A . § 40-13-202. Each of the three means of criminalattemptprovi ded in T .C.A. §-13- 39-12-101 requires an act or a ctions to g o with th e intent to commit an of fense ... . The fail ure of the charging instrument to alleg e any conduct or action by the pe titioner relative to him intending to comm it firs t degree murder ren ders the indictme nt fatally deficie nt.
Id. , dissent ing op. at

3. To place theissues in bet ter contex

t, a rev iew of sever

al other cases which have addressed the adequacy of indictments ch arging attem pt is in order. In State v. Jimmie Lee DeMoss , C.C.A. No. 02C01- 9406-CC-00127, slip op. at 3 (Tenn. Crim. App., at Jac kson, Ap ril 26 , 1995), t he indict ment provided as follows: [T]hat JIMM IE LEE D EMOS S ... did unlawfully,

intentionally, deliberately and wi th premeditat ion attempt to k ill KATHEY LYNN BR OWN , in vi olation of T.C.A . § 39-12 -101 an d T.C.A . § 39-13 -202 .... DeMoss argued that t he indict ment was defici ent "because i t does not al lege
... how theattempt

to k il l t he al leg ed v ict imswas carried o ut and what weapon was used in the a ll e ged atte mpted murde rs." Id. , sli p op. at 3. The panel held t hat the indictment wa s sufficient becau se precise factu al pleading, a req uire m ent underthe common law, was not n ec ess ary under t he terms of th e particul ar statute. Id. , slip op. at 3-4
. The indictment in this casecannot be dist inguished from that in DeMoss . The re hav e bee n factu al alleg ations in each instance. The supr eme court granted review in DeMoss . No opinion has been issued to date.

Similarly, in State v. Steve Mason , the indi ctment incl uded minimal factual all egations:

[That the de fenda nt] ... did u nlawfully, intentionally, delibe rately and w ith premeditati on attempt to killJesse Jones, in viol ation of Tenne ssee Code Annotated 39- 12-101, and Tennessee Code Annotated 39-13-202
...-14- C.C.A. No. 01C 01-9603-C C-00103 , slip op. at 7-8 (T e nn. Crim. App., at Nashvill e, June 6, 1997). Mason had argued t hat the tr aditionalrule requi red
more i nfo rmation , "such as how the attemp t upon Jo nes' life wa s perpe trated." This court disagreed, holding t hat the in dictment was suf ficien t and that Mason could obtain ad ditional facts through a bill of particu lars. Id. , s li p op. at 8 . On Marc h 2, 19 98, ou r supre me c ourt de nied p ermis sion to appe al.

In State v. Dock Battles , C.C.A. No. 02C01- 9501-CC-00019, slip op. at 2 (T enn. Cri m. App., at Jac kson, Nov. 29 , 1995), app. denied , (Tenn., Apr . 1, 1996), an indict ment charging at tempted aggravated burglary was challenged on the basis that it failed to alle ge the e ssential e lemen ts of attempt, i. e., an overt act or subs tantial step . The ins trumen t charge d as follow s:

[That Battles ] did un lawfully atte mpt to co mm it ... Aggravated Burglary, as defined in T.C.A. § 39-13- 403; in that he
... did unl awf ul ly attempt to enter t he habitati on of [the victim], not open to the publ ic, wit hout the effective co nsent o f [th e victi m], with inte nt to comm it theft, in violation o f T.C.A. § 39-12-1 01.... Id. This court adopted a dicti onary definiti on of attempt, "to make an effort to do, accomplish, solve, or effe ct." Id. , sli p op. at 3 (quoting We bste r's Nint h New Collegia te Dicti onar y (1983)). Based upon ordinary meaning of attempt, the panel h eld that " attempt to enter the habit ation of the victi m" was suffi cientt o allege a s ubstan tial step or ov ert act. Id.

In severa l r ecen t cases, our sup reme cou rt also appears to have relaxed t he common law requirements gov erning indi ctments. I nitial ly, i n State v. Trusty , an indi ctment incl uded the fol lowing l anguage:

[That the defendant] ... di d un lawfully attem pt to com mit the offens e of Murder First Degree, as defined in T.C.A. 39-13-202, in that he, the sai d Way n e-15- Trust[y], did unlawf ully, int enti onally, deliberately and with prem editatio n attem pt to kill H unter B ell, in violation of T .C.A. 39 -12-101
.... 919 S.W.2d 305, 312 (Tenn. 1996). The supreme court rul ed that the"indic tment allege[d]the essenti al elements of attempted first-degree murder and could thus form the basis for a conv iction." Id. In State v. Hill , 954 S.W.2d 725, 728 (Tenn. 1997), our suprem e court pointed out that "t he descript ion of theproof neces sary to sustain a convicti on must be both more incl usive and concl usive than t he langua ge of an indictme nt."

In Dykes v. Compton , 978 S.W .2d 528 (Te nn. 1998), the c ourt observe d as follow s:

[W]e wish to em phasize once a gain the fa ct that the Court has m oved a way fro m the stric t ple ading requirem ents of common law . As we noted i n Hill , "the purpose forthe traditionally stri ct pleadi ng requirement was the existen ce of common law offenses whose eleme nts were not eas ily ascert ained by referen ce to a statute. Su ch com mon la w offens es no lon ger exist." So long a s the c onstit utional and statutory requirem ents in Hill are m et, the in dic t ment will be sufficient to s upport a conviction
. Id. at 530 (interna l citation s om itted) (e mph asis added). Final ly, i n Ruff v. State , 978 S.W.2 d 95, 100 (Ten n. 1 998) , ou r su pre me court reiter ated its intent t o "relax strict pleading requ irements of the comm on law" and c oncluded th at "where the constit utional and statutory requi rements outli ned in Hill are met, an indict ment which cites t he pertinent statute a nd uses its l anguage willbe sufficient to support a convictio n."

This more r ecent vi ew is consistent with hol dings from ot her jurisdict ions. In People v. Fowl er , 290 N.E.2d 618, 620 (Ill. App. 1 972), the Illinois Appe llate Co urt held , "An at temp t to kill is cle arly an act co nstit uti ng a substanti al s tep toward commission of t he offense of murder. Alt hough the-16- in dictmentdidnot

des cri be t he pa rt icu lar meth od of

theattemp t it

wa s unneces sary for the state to plead s uch evid entiary de tails." In Reese v. State , 456 So.2d 3 41, 347 -48 (Ala. C rim. App . 1982), cert. deni ed , (Ala. 1983), the Ala bamaCourt of CriminalAppeals held, "[T]he al legation thatthe defen dant with the requis ite inten t, 'attem pted to kill and mu rder' a named victi m, was suffi cient to describean act which consti tuted a substantial step toward t he commission of murde r."

So lo ng a s the cha rging instru ment a lleges the criminal inte nt to
com mit the spec ific crime an d an ove rt act, an attem pt indictm ent is sufficie nt. Christi an , slip op. a t 13-14. In the indictm ent before us, the terms "unlaw fully, intentionally, deliberately and wit h pr emeditat ion" embody the c riminal i ntent required to commit the speci fic cri me of first degree murder. I n my view, " attempt to kill" is a generalallegat ion of the a ct or co nduct of the defendant. The view I expressed in Christi an on behalf of the panel is not at odds with the holdin gs in
our supre me c ourt ca ses o r in thos e from other ju risdictio ns. Be caus e this indict ment includesadequ ate langua ge to sup port a co nviction of a ttempt, I concur in the d ecision of the m ajority.

_______________________________ _ _ Gary R. Wade, Presiding Jud ge