IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FREDDIE EVERETT RUSSELL, )
)
Petitioner, ) C. C. A. NO. 02C01-9710-CR-00403
)
vs.
STATE OF TENNESSEE,
) SHELBY COUNTY
)
) No. P-17626
FILED
) March 10, 1998
Respondent. )
Cecil Crowson, Jr.
Appellate C ourt Clerk
ORDER
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
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
1
The decision in Hill is based upon the Court’s interpretation of T.C.A. § 39-11-301, which was
ena cted in 198 9. Th at sta tute p rovid es, in pertin ent p art, th at “[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
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
3