IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

WILLIAM TERRY WYATT v. STATE OF TENNESSEE

Appeal by permission from the Court of Criminal Appeals

Criminal Court for Bledsoe County

No. 10797 Thomas W. Graham, Judge

No. E1998-00097-SC-R11-CO - Filed July 27, 2000

This is an appeal from the judgment of the Bledsoe County Criminal Court, which denied the

defendant’s petition for habeas corpus relief. The Court of Criminal Appeals affirmed the trial

court’s denial of the petition, rejecting the defendant’s argument that his original indictment, which

charged attempted first-degree murder by an “attempt to kill,” was insufficient for failing to allege

an overt act and thus failed to confer jurisdiction on the trial court. We granted the defendant’s

application for permission to appeal. We hold that the indictment in this case sufficiently alleges

an act as required by the criminal attempt statute in stating that the defendant “did . . . attempt to

kill” and that habeas corpus relief was thus properly denied. Accordingly, we affirm the lower

courts’ judgments. 

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which FRANK F. DROWOTA, III

ADOLPHO A. BIRCH, JR., WILLIAM M. BARKER, and JANICE M. HOLDER, JJ., joined. 

Paula R. Voss, Assistant District Public Defender, Knoxville, Tennessee (On Appeal) and William

Terry Wyatt, Pikeville, Tennessee, Pro Se (At Trial) for the appellant, William Terry Wyatt.

Paul G. Summers,Attorney General & Reporter; Michael E. Moore, Solicitor General; and Elizabeth

B. Marney, Assistant Attorney General, Nashville, Tennessee; and James W. Pope, III, Assistant

District Attorney General, Pikeville, Tennessee (At Trial), for the appellee, State of Tennessee.

OPINION

We granted permission to appeal in this case to consider whether an indictment charging that

the defendant did “attempt to kill,” sufficiently charges the material elements of criminal attempt to

commit first-degree murder. After a review of the record and applicable authorities, we conclude

that the indictment in this case sufficiently alleged an act as required by the criminal attempt statute

in stating that the defendant “did . . . attempt to kill” and that habeas corpus relief was thus properly

denied. Accordingly, we affirm the judgment of the Court of Criminal Appeals.
1

In characterizing “attempted first-degree murder” as a substantive offense, the appellate court

distinguished Wyatt’s indictments from indictments charging criminal conspiracy, which requires an overt act

allegation.

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BACKGROUND

The defendant, William Terry Wyatt, was originally charged with attempted first-degree

murder, especially aggravated kidnapping, aggravated rape, and theft of over one thousand dollars.

Pursuant to a plea agreement, he pled guilty to the lesser offenses of attempted second-degree murder

and kidnapping. The trial court sentenced him to concurrent sentences of eight and four years,

respectively. 

He subsequently filed a Petition for Writ of Habeas Corpus in the trial court alleging that the

trial court lacked subject matter jurisdiction to sentence him because the count of the indictment

alleging attempted first-degree murder was facially defective for failing to allege an overt act. The

trial court denied the petition, saying that it was in essence a collateral attack on the sufficiency of

the indictment, which is a matter outside the purview of the habeas corpus statute. The trial court

stated:

The writ of habeas corpus is solely for the purpose of testing the

legality of the imprisonment and is limited to proceedings to

determine either facial deficiencies or imprisonment beyond the

period of the sentence imposed. . . . This Court finds nothing facially

deficient about the indictment or the judgment. . . . This matter is

simply not subject to further review in a habeas corpus proceeding.

A majority of the Court of Criminal Appeals affirmed,reasoning that because the indictment charged

a substantive offense, i.e., attempted first-degree murder, the indictment need not allege an overt act.1

The court further reasoned that, in any event, the language “did . . . attempt to kill” necessarily

implied that an overt act was committed. 

In a separate opinion, Judge Wade concurred in the judgment but disagreed with the majority

that the indictment was sufficient simply by charging the substantive offense of attempted firstdegree murder. The concurring opinion reviewed the Court of Criminal Appeals’ opinions which

have considered the requirements necessary for a sufficient indictment alleging the offense of

criminal attempt, and concluded that the language “did . . . attempt to kill” was sufficient to allege

an overt act. See Freeman v. Raney, No. 02C01-9807-CC-00202 (Tenn. Crim. App. March 24,

1999) (indictment charging attempted first-degree murder, that the defendant shot at the victim, was
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found sufficient); Twitty v. Carlton, No. 03C01-9707-CR-00310 (Tenn. Crim. App. Jan. 6, 1999)

(indictment charging attempted first-degree murder, that the defendant “did . . . attempt to kill,” was

found sufficient, with a panel member dissenting because of his view that the indictment

insufficiently alleged an act); State v. Christian, No. 03C01-9609-CR-00336 (Tenn. Crim. App.

March 23, 1998) (indictment charging attempted first-degree murder, that the defendant stabbed the

victim with a deadly weapon, was found sufficient); State v. Mason, No. 01C01-9603-CC-00103

(Tenn. Crim. App. June 6, 1997) (indictment charging attempted first-degree murder, that the

defendant “did . . . attempt to kill,” was found sufficient); State v. Stampley, No. 02C01-9409-CR00208 (Tenn. Crim. App. Aug. 16, 1996) (indictment charging attempted first-degree murder, that

the defendant “did . . . attempt to kill,” was found sufficient); State v. DeMoss, No. 02C01-9406-CC00127 (Tenn. Crim. App. April 26, 1995) (indictment charging attempted first-degree murder, that

the defendant “did . . . attempt to kill,” was found sufficient); State v. Battles, No. 02C01-9501-CC00019 (Tenn. Crim. App. Nov. 29, 1995) (indictment charging attempted aggravated burglary, that

the defendant “did attempt to enter . . . without the [owner’s] effective consent,” was found

sufficient).

We granted the defendant’s application for permission to appeal this issue offirst impression.

STANDARD OF REVIEW

Because this issue is a question of law, our review is de novo with no presumption of

correctness given the lower courts’ judgments. E.g., State v. Hill, 954 S.W.2d 725, 727 (Tenn.

1997).

HABEAS CORPUS RELIEF

 

We first address the trial court’s conclusion that habeas corpus relief is not available to

address a faulty indictment. The right to seek habeas corpus relief is guaranteed by Article I, § 15

of the Tennessee Constitution and governed by Tenn. Code Ann. §§ 29-21-101 et seq. While there

is no statute of limitations to bar the filing of a habeas corpus petition, the grounds upon which relief

will be granted are limited in nature and scope. Such relief is available only when it appears from

the face of the judgment or the record of the proceedings that a trial court was without jurisdiction

to sentence a defendant or that a defendant’s sentence of imprisonment or other restraint has expired.

Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). 

The defendant has the burden to show by a preponderance of the evidence that the sentence

is void or that the confinement is illegal. Generally, defenses and objections based on a defective

indictment must be raised prior to trial or they are waived. Tenn. R. Crim. P. 12(b)(2), (f).

However, as we have previously stated, “[a] valid indictment is an essential jurisdictional element,

without which there can be no prosecution.” Dykes, 978 S.W.2d at 529. Thus, an indictment that

is so defective as to fail to vest jurisdiction in the trial court may be challenged at any stage of the

proceedings, including in a habeas corpus petition. Tenn. R. Crim. P. 12(b)(2); Dykes, 978 S.W.2d
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at 529 (“If the face of the record shows that the court did not have jurisdiction, then the judgment

is void.”). 

In the present case, Wyatt argues that his conviction and sentence are void because his

indictment failed to allege an overt act, which is a material element of attempted first-degree murder,

and thus failed to clothe the trial court with jurisdiction. Specifically, he argues that the indictment’s

failure to allege an overt act provided inadequate notice of the charged offense because, at a

preliminary hearing, the State’s witness testified about numerous acts which may have constituted

attempted first-degree murder. He asserts that because the criminal attempt statute contains three

separate subsections pursuant to which the State may obtain a conviction, and the last of these

subsections allows conviction based upon a “course of conduct,” there is a heightened need for

factual specificity in an indictment charging the offense of criminal attempt. 

The State maintains that this Court has relaxed the strict pleading requirements of the

common law and that the Court of Criminal Appeals correctly concluded that Wyatt’s indictment

is sufficient under this Court’s analysis in State v. Hill, 954 S.W.2d 725 (Tenn. 1997). Based upon

the facts of this case, we agree.

THE CRIMINAL ATTEMPT STATUTE

The offense of criminal attempt is codified at Tenn. Code Ann. § 39-12-101 (1997). This

section states that:

(a) A person commits criminal attempt who, acting with the kind of

culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that

would constitute an offense if the circumstances surrounding the

conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the

offense, and believes the conduct will cause the result without further

conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a

result that would constitute the offense, under the circumstances

surrounding the conduct as the person believes them to be, and the

conduct constitutes a substantial step toward the commission of the

offense.

Id. Accordingly, the criminal attempt statute is divided into three different subsections which

describe three different types of proscribed acts, and the State may convict based upon any one of

the three. 
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By its plain language, the offense of criminal attempt is committed when a person, “acting

with the kind of culpability otherwise required for the offense,” either “engages in action” or “[a]cts”

so as to satisfy any one of the three numbered subsections. Tenn. Code Ann. § 39-12-101; see also

Tenn. Code Ann. § 39-12-101 Sentencing Comm’n Cmts. (“the offense is basically one of criminal

intent coupled with acts that clearly demonstrate the offender’s proclivity toward criminality.”). We

thus agree with the defense that the criminal attempt statute requires that the State prove two material

elements: the culpability required for the attempted crime; and an act or acts in furtherance of the

attempted crime. Accord, Jackson v. State, 566 So. 2d 757 (Ala. Crim. App. 1987) (rev’d on other

grounds); People v. Ramos, 639 P.2d 908 (Cal. 1982) (rev’d on other grounds); People v. Castro,

657 P.2d 932 (Colo. 1983); State v. Sharpe, 491 A.2d 345 (Conn. 1985); Littles v. State, 384 So. 2d

744 (Fla. Dist. Ct. App. 1980); People v. Jones, 405 N.E.2d 343 (Ill. 1979); McGee v. State, 699

N.E.2d 264 (Ind. 1998); State v. Jarman, 445 So. 2d 1184 (La. 1984); State v. Brown, 410 A.2d 1033

(Me. 1980); State v. Earp, 571 A.2d 1227 (Md. 1990); State v. Allen, 514 A.2d 1263 (N.H. 1986);

People v. Cadorette, 439 N.E.2d 353 (N.Y. 1982); State v. Flygare, 525 P.2d 181 (Or. Ct. App.

1974); Commonwealth v. Hobson, 604 A.2d 717 (Pa. Super. Ct. 1992); Garcia v. State, 541 S.W.2d

428 (Tex. Crim. App. 1976) (overruled on other grounds); State v. Maestas, 652 P.2d 903 (Utah

1982) (overruled on other grounds); Hargrave v. Commonwealth, 201 S.E.2d 597 (Va. 1974); State

v. Hale, 829 P.2d 802 (Wash. Ct. App. 1992); State v. Cartagena, 299 N.W.2d 872 (Wis. 1981). 

We now consider the sufficiency of Wyatt’s indictment. 

WYATT’S INDICTMENT

Wyatt was indicted for attempted first-degree murder. His indictment states in pertinent part:

that WILLIAM TERRY WYATT on the 7th day of March, 1994, in

Cumberland County, Tennessee, and before the finding of this

indictment, did unlawfully, intentionally, deliberately and with

premeditation attempt to kill Billie Carey in violation of T.C.A. 39-

12-101 . . . .

The indictment makes no reference to the attempt statute’s numbered subsections nor does it specify

a specific act or course of conduct constituting the “attempt to kill.” 

The Sixth and the Fourteenth Amendments to the United States Constitution and Article I,

§ 9 of the Tennessee Constitution guarantee the accused the right to be informed of the nature and

cause of the accusation. U.S. Const. amend. 6, 14; Tenn. Const. art. I, § 9; see alsoHill, 954 S.W.2d

at 727. We have consistently interpreted these constitutional provisions to require that an

indictment: 1) provide notice to the accused of the offense charged; 2) provide the court with an

adequate ground upon which a proper judgment may be entered; and 3) provide the defendant with

protection against double jeopardy. Id.; State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991); State v.

Pearce, 7 Tenn. (Peck) 66, 67 (1823); see alsoHamling v. United States, 418 U.S. 87, 94 S. Ct. 2887,

41 L. Ed. 2d 590 (1974). 
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The form of an indictment is further governed by statute. Tenn. Code Ann. § 40-13-202

(1997). Section 202 requires that an indictment “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.” Id. “Prolixity” means “[t]he

unnecessary and superfluous statement of facts in pleading or in evidence.” Black’s Law Dictionary

1378 (4th ed. 1951). We consider the sufficiency of Wyatt’s indictment with these constitutional and

statutory principles in mind. 

We conclude that the indictment in this case satisfies these minimum requirements. Clearly

Wyatt was placed on notice that he was charged with the intentional, deliberate and premeditated

attempt to kill the named victim on a date certain. The indictment was also sufficient to place the

trial court on notice that a judgment and sentence for attempted first-degree murder were proper

upon conviction. Finally, by expressly stating that the attempt to kill was made against a specific

victim on a date certain, the indictment offers Wyatt double jeopardy protection from any future

charge of attempted murder against that victim on that date. Though the language “did . . . attempt

to kill” is a general description, especially in light of the testimony at the preliminary hearing that

Wyatt committed multiple acts against the victim which the State could have relied upon to obtain

a verdict, this language alleges an act as required by the criminal attempt statute and was sufficient

to notify Wyatt of the accused crime, to confer jurisdiction upon the trial court, and to protect against

double jeopardy. Hill, 954 S.W.2d at 727. 

Because a defendant may make jurisdictional challenges to an indictment at any stage of the

proceeding, Tenn. R. Crim. P. 12(b)(2), we take this opportunity to encourage the State to charge

the crime of attempt in such a way that informs the defendant of the precise act or acts against which

he is being called upon to defend. For example, it might have been prudent to charge that Wyatt had

attempted to kill the victim “by firing several gunshots” or “by hitting the victim about the face and

head until she was unconscious.” In this case, considering that (1) multiple acts formed the basis

of the charge; (2) that there are multiple subsections to the criminal attempt statute; and (3) that

Wyatt’s indictment failed to specify which subsection under which the State intended to proceed,

and further, (4) given the nature of the criminal attempt statute, the defendant would have been welladvised to move for a bill of particulars pursuant to Tenn. R. Crim. P. 7(c). See also State v. Speck,

944 S.W.2d 598, 601 (Tenn. 1997) (holding that the trial judge correctly “found that additional

information was necessary to assist the defendant in preparing for trial, and correctly ordered the

prosecution to supplement the skeletal charge contained in the indictment.”). However, we leave

this issue to be resolved by the trial courts, who are best qualified to make these determinations on

a case-by-case basis.

CONCLUSION

After our review of the record and applicable authorities, we are of the opinion that the

indictment in this case sufficiently alleges an act as required by the criminal attempt statute in stating

that the defendant “did . . . attempt to kill” and that habeas corpus relief was thus properly denied.
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Accordingly, we affirm the judgment of the Court of Criminal Appeals. It appearing that the

defendant Wyatt is indigent, costs of this appeal are taxed to the State.

____________________________________

E. RILEY ANDERSON, CHIEF JUSTICE