# FILED

April 3, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

JIMMY L. McCURRY, ) ) Petitioner, ) C. C. A. NO. 02C01-9701-CC-00020 ) vs. ) LAKE COUNTY ) BILLY COMPTON, WARDEN, ) No. 96-7577 ) 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 und er Rule 20, Rules of the Cour t of Criminal Appeals. The case before this Court repre sents an appeal from the trial co urt’s denial of the petitioner’s petition for w rit of habeas corpus. The recor d was filed on January 14 , 1997, and the petitioner filed his brief on January 22, 1997. The peti tioner was originally indi cted for first degree murder i n January 1985, and was c onvicted of the same in February 1985. 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, 19 96), contends the judgment entered ag ainst him is void becaus e the indictment failed to allege the mens rea of the offense charg ed.

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 judg e dismissed the petitioner’ s petition stating that “[a]llegations concerning the insufficiency of an indictment are not subject t o habeas corpus relief.” It is well established that challenges to the sufficienc y 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 cas e. Barber v. State , No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 199 5).2 Nonetheless, we have considered the substance of the petition er’s claim and determine it to be witho ut merit. Hill represents a direct appeal from a case involving an indi ctment rendered subsequent to the 1989 revisions to the C riminal Code. Conversely, the appeal in the present case s tems 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 Cour t’s interpretation of T.C.A. § 39- 11-301(c), which w

as enacted in 1989. That statute prov ides, in pertinent part, tha t “[a] culpable mental state is required within this title unless the definition of the offense plainly dispenses w

ith a mental element.” Prior to 1989, however, the C riminal Code did not contain a comparable stat ute. Accordingly, the decision in Hill does not control our review of the iss ue raised herein.

At the time of the offense in this case, fir st degree murder was d efined as “[e]very murder perpetrated by means of poison, lying in wait, or by other kind of willful, deliberate, malicious, and pr emeditated killing, or c

ommitted in the perpetration of, or attempt to perpetrate, [one of the enumerated felonies, including robber y].” T.C.A. § 39-2-202 (1982). The indictment at issue befo re us charged that the petitioner did “unlawfully and felonious ly kill and murder [the victim while i n the perpetration of robbery].” This lang uage 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). T he statu tory requir ements f or an indi ctment we re found in § 40-18 02 (now § 40-13-202 (1990)), whi ch provided simply that:

The indictment must state the facts const ituting the offense in ordinary and concise l anguage, without prol ixity or repetit ion, 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 committed3 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 valid. Thus, the petition er’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 judgme nt 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 Mar ch, 1997.

__________________________________ JOE G. RILEY, JUDGE

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ PAUL G. SUMMERS, JUD GE