# 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

GARLAND POWELL, ) ) Petitioner, ) C. C. A. NO. 02C01-9612-CC-00483 ) vs. ) LAUDERDALE C OUNTY ) JIMMY HARRISON, WARDEN, ) No. 4870 ) 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 December 24, 1996, and the petitioner filed his brief on January 24, 1997. The peti tioner was originally indi cted, among other things, for first degree murder in Apr il 1975, and was convicted of the same in January 1976. In the present appe al, the petitioner, relying in part upon State v. Roger Dale Hill , No. 01C01-9508-CC-00267 ( Tenn. Crim. App. June 20, 1996), contends the judgment ent ered against him is v

oid because the indictment charging him wit h murder during the perpetr ation of a robbery failed to all ege the mens rea of the offense charged.

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 th e petitioner failed to allege a proper g round for habeas corpus relief. I t is well establis hed that challenges to the sufficiency of an indictment cannot be tested in a habeas corpus proceeding. See Haggard v. State , 475 S.W.2d 186, 18 7 (Tenn. Crim. App. 1971); Brown v. State , 445 S.W.2d 669, 67 4 (Tenn. Crim. App. 1969). A panel of this Court recently held the same in a capital case. Barber v. State , No. 01C01-9408-CR-002812

(Tenn. Crim. App., Feb. 23, 1995).

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, per son was guilty o

f first degree murder if he or she "committ[ed] a w illful, deliberate and malic ious killing or mur

der during the perpetration of [one of the enumerated felonies, including robbery].” T.C.A. § 39-2402 (1975). The indictment at issue bef ore us charged that the petitioner did “unlawfully, feloniousl

y, willfully, deliberately and malici ously kill and murder [the victim], during the perpetration of a robbery.” This language was sufficient under the law as it existed at the time. As not ed above, the Criminal C ode did not contain a provi sion similar to § 39-11-301(c) (1989). The statutory requirements for an indictmen t were found in § 40-1802 (now § 40-13- 202 (1990)), which pro vided 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:3 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 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