Broski v. State

• Citation: 196 Ga.App. 116,395 S.E.2d 317
• Decision Date: 06 June 1990
• Docket Number: No. A90A0674,A90A0674
• Parties: BROSKI v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 317

395 S.E.2d 317

196 Ga.App. 116

BROSKI v. The STATE.

No. A90A0674.

Court of Appeals of Georgia.

June 6, 1990.

Rehearing Denied June 25, 1990.

Certiorari Denied Sept. 4, 1990.

Virgil L. Brown & Associates, Virgil L. Brown, Zebulon, Eric D. Hearn, Bentley C. Adams, III, Thomaston, for appellant.

Ralph T. Bowden, Jr., Sol., Andrew R. Fernandez, Cliff Howard, Asst. Solicitors, for appellee.

SOGNIER, Judge.

Joseph Broski was convicted of driving under the influence of alcohol, driving with an unlawful blood alcohol level, and failure to maintain lane, and he appeals.

1. Appellant contends the trial court erred by denying his motion to quash count 1 of the accusation, driving under the influence of alcohol, because it failed to set forth an offense against the laws of the state. Count 1 of the accusation charged appellant with driving under the influence of alcohol by being in actual physical control of a moving vehicle while under the influence of alcohol in violation of OCGA § 40-6-391(a)(1). That statute provides that "[a] person shall not drive or be in actual physical control of any moving vehicle while ... [u]nder the influence of alcohol to the extent that it is less safe for the person to drive." (Emphasis supplied.) Although the accusation expressly referenced OCGA § 40-6-391(a)(1), appellant contends that the failure to recite the above emphasized language in the accusation itself constitutes a fatal defect in the accusation. We do not agree.

OCGA § 17-7-71(c) provides that "[e]very accusation which states the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct." This statute is analogous to OCGA § 17-7-54 for indictments. While it is not necessary to specify the Code section under which an indictment or accusation is drawn, see Turner v. State, 233 Ga. 538, 212 S.E.2d 370 (1975), and an indictment or accusation is not defective if, while describing the proper elements of the crime, the incorrect statute is referenced, see Curtis v. State, 80 Ga.App. 244, 246(1)(b), 55 S.E.2d 758 (1949), neither appellant nor the State has cited this court to any opinion of the appellate courts of Georgia indicating an indictment or accusation is improper if it recites the proper statute but does not detail all the elements thereto.

"An indictment [or accusation] is required to set forth the elements of the offense sought to be charged. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offen[s]e, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. As long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him, as well as protect against another prosecution for the same offense, the indictment is sufficient. Thus, if a defendant is not misled to his prejudice by any imperfection in an indictment an appellate court will not reverse." (Punctuation and citations omitted.) Williams v. State, 165 Ga.App. 69, 71(4), 299 S.E.2d 402 (1983).

Upon review of numerous authorities concerning the sufficiency of an indictment or accusation, we conclude that reciting the proper statute is a sufficient, though not desirable, method of fulfilling the requirement here of OCGA § 17-7-71(c). In Toland v. State, 115 Ga.App. 786, 787, 156 S.E.2d 215 (1967), we found no error in the overruling of appellant's demurrer, which was based on his argument that the indictment was defective because the offense charged was not described in the language of the specific law violated and citation to the charged offense was by reference to the Georgia Code Annotated instead of the Acts under which the offense was created. In State v. Black, 149 Ga.App. 389, 254 S.E.2d 506 (1979), an indictment for vehicular homicide referenced the statute and contained descriptive language of the charge, but it could not be determined which of the two types of vehicular homicide contained in the statute was the charged offense. This court noted, "[t]he giving of the Code section is not sufficient if the indictment merely charges vehicle homicide and does not set forth that it is of the first degree or second degree, and in reading the allegations we are unable to determine [which degree was charged.]" (Emphasis added.) Id. at 391(4), 254 S.E.2d 506. From this it can be concluded that including the statute in the indictment would have been sufficient had the proper subsection of the statute been included. Finally, in Wages v. State, 165 Ga.App. 587, 588-589(2), 302 S.E.2d 112 (1983), we noted that an indictment (which set forth that appellant had unlawfully appropriated certain property with the intention of depriving the victim of the property in violation of appellant's duties as an employee of a certain government office, "in violation of" two Code sections) which was "substantially in the language of the pertinent Code sections, is not confusing as it sets forth the elements of the offense of theft and the provisions applicable to government employees who breach their duties by committing theft, and otherwise meets the standards" required of indictments under OCGA § 17-7-54.

Appellant cites this court to King v. State, 176 Ga.App. 137, 335 S.E.2d 439 (1985), for the proposition that "[a]n accused is entitled to an indictment or accusation perfect in form as well as substance if he timely raises the question in writing on special demurrer. [Cits.]" Id. at 139, 335 S.E.2d 439. We find King distinguishable from the case sub judice in that while appellant's motion was timely, written, and specifically reached the point objected to, the absence of the "less safe driver" language was remedied by citation to the statute, and therefore no defect, technical or otherwise, was present in the accusation. Furthermore, even if the absence of the "less safe driver" language did render the indictment not perfect, "this court on appeal must apply a 'harmless error test' in order to determine if the error has prejudiced defendant and thus requires reversal of his conviction. [Cit.] '(W)hen...