FILED

March 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FREDDIE EVERETT RUSSELL, )

)

Petitioner, ) C. C. A. NO. 02C01-9710-CR-00403

)

 vs. ) SHELBY COUNTY

)

STATE OF TENNESSEE, ) No. P-17626

)

Respondent. )

O R D E R

This matter is before the Court upon the state’s motion to affirm the

judgment of the trial court in accordance with Rule 20, Rules of the Court of Criminal

Appeals. In June 1987, the petitioner was indicted on one count of aggravated rape,

one count of incest, and one count of crime against nature. The petitioner was

subsequently convicted on all three counts. The petitioner has since filed a petition for

a writ of habeas corpus challenging the sufficiency of the indictment entered against

him. The trial court denied relief.

On appeal, the petitioner argues that the indictment is invalid because it

failed to assert an essential element of the offenses, i.e., the mens rea, and that his

convictions, therefore, cannot stand.

At the time of the offenses in this case, aggravated rape was the unlawful

sexual penetration of another accompanied by several enumerated circumstances,

including that the victim was less than thirteen years of age. T.C.A. § 39-2-603 (1982). 

T.C.A. § 39-4-306 (1982), defining incest, prohibited any man from having carnal

knowledge of his daughter, and T.C.A. § 39-4-306 (1982) provided that crimes against

nature were punishable by imprisonment in the penitentiary. 

The indictment at issue before us charged that the petitioner “unlawfully
1

 The decision in Hill is based upon the Court’s interpretation of T.C.A. § 39-11-301, which was

enacted in 198 9. Th at sta tute p rovid es, in pertin ent part, that “[a] culpa ble m enta l state is req uired 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 provision.

2

and feloniously did have sexual penetration of [the victim], a female child under the age

of 13 years,“ ”did unlawfully and feloniously have carnal knowledge of [the victim], the

said defendant’s daughter,” and “did unlawfully and feloniously violate the laws of

nature by performing cunnilingus on [the victim], and further did violate the laws of

nature by having and making [the victim] perform fellatio on the said defendant.” 

This language was sufficient under the law as it existed at the time. The

statutory requirements for an indictment were found in § 40-13-202, 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:

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 petitioner of the offenses

charged under the law at the time, and is therefore valid.

Although not controlling in the present case,1 the Supreme Court’s recent
3

opinion in State v. Hill, No. 01S01-9701-CC-00005 (Tenn., Nov. 3, 1997) supports our

conclusion. The Court stated that “an indictment need 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 offense.” Moreover,

having reviewed the language of the indictment in this case, we find that it would suffice

under the Supreme Court’s analysis of the current statutory requirements of notice and

form.

Accordingly, we 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 of the trial court is affirmed in accordance with Rule 20,

Rules of the Court of Criminal Appeals.

Enter, this the ___ day of February, 1998.

___________________________

DAVID G. HAYES, JUDGE

___________________________

PAUL G. SUMMERS, JUDGE

___________________________

JOE G. RILEY, JUDGE