Ivie v. State

• Decision Date: 25 September 1979
• Docket Number: No. 58287,58287
• Citation: 260 S.E.2d 543,151 Ga.App. 496
• Parties: IVIE v. The STATE.
• Court: Georgia Court of Appeals

Page 543

260 S.E.2d 543

151 Ga.App. 496

IVIE v. The STATE.

No. 58287.

Court of Appeals of Georgia.

Argued Sept. 4, 1979.

Decided Sept. 25, 1979.

Paul S. Weiner, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Harold G. Benefield, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was indicted for homicide by vehicle, in that he "did, without malice aforethought cause the death of Pamela Ann Boone by driving his motor vehicle in a reckless disregard for the safety of Pamela Ann Boone, by failing to grant the right of way to oncoming traffic . . ." From the judgment of conviction entered upon the jury's verdict of guilty, appellant appeals.

1. The general grounds are without merit since the evidence here is sufficient to support the verdict and it is the sufficiency of the evidence as opposed to its weight which is cognizable by an appellate court. Viener v. State, 150 Ga.App. 175, 257 S.E.2d 22 (1979); Raymond v. State, 146 Ga.App. 452, 246 S.E.2d 461 (1978). Furthermore, after a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of guilt of appellant beyond a reasonable doubt. Jackson v. Virginia, --- U.S. ----, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant urges several enumerations of error the underlying argument in support of which appears to be an attack on the indictment. In State v. Black, 149 Ga.App. 389, 254 S.E.2d 506 (1979), we held an indictment for the offense of " 'Vehicle Homicide (68A-903)' (in that) 'while operating a motor vehicle on and over said public road and highway, known as State Route No. 11, in a reckless manner, to wit: failing to yield right of way, did unlawfully and without malice aforethought (cause the death of another)' " was subject to demurrer in that it was not possible to determine whether the defendant was being charged with homicide by vehicle in the first degree under Code Ann. § 68A-903(a) (reckless driving) or in the second degree under Code Ann. § 68A-903(b) (failure to yield the right of way). In the instant case, however, unlike Black, no demurrer to the indictment has been filed. "One who waives the right to be tried upon an indictment perfect in form and substance by failing to demur and takes his chances on an acquittal, will not be heard after conviction to urge defects in the indictment unless the defects are so great that the indictment is absolutely void. (Cits.)" Mealor v. State, 135 Ga.App. 682, 683, 218 S.E.2d 683, 684 (1975). Furthermore, in this case, also unlike Black, the indictment charging appellant with homicide by vehicle tracked the language of Code Ann. § 68A-901(a), accusing appellant of "driving his motor vehicle in a reckless disregard for the safety of (the deceased)." See Barton v. State, 79 Ga.App. 380, 53 S.E.2d 707 (1949). Although the indictment contains the additional phrase "by failing to grant the right of way to oncoming traffic," a common sense reading of the entire indictment makes it clear that appellant was being charged with homicide by vehicle in the first degree in that he failed to yield the right of way to oncoming traffic in reckless disregard for the safety of the deceased reckless driving under Code Ann. § 68A-901. See Walker v. State, 146 Ga.App. 237, 240-241, 246 S.E.2d 206 (1978).

It, therefore, follows that it was not error to deny appellant's motion for directed verdict. Byers v. State, 236 Ga. 599, 225 S.E.2d 26 (1976). Nor was it error, in the absence of a timely written request, for the trial judge to fail to charge on the lesser included offense of homicide by vehicle in the second degree. State v. Stonaker, 236 Ga. 1, 2, 222 S.E.2d 354 (1976). And, as discussed in Division 1, supra, the evidence supports the verdict. Appellant's enumerations of error 3, 5, 6 and 10 are without merit.

3. A witness for the state, the investigating officer, testified that he smelled alcohol on the breath of appellant. He was permitted to testify that he advised appellant of his rights and obligations to submit to a chemical test under the implied consent law and of the consequences of a refusal to submit to such testing. Without objection, the witness testified that appellant refused to submit to a chemical test. Subsequently, on cross examination, the witness stated: "I told him he stood a chance of losing his license, there was a possibility of losing his license." Appellant's counsel thereupon moved for mistrial or, in the alternative, that the witness' testimony with reference to the implied consent warnings be stricken. Appellant enumerates as error the court's overruling of both motions.

The basis for appellant's argument that the motions should have been granted is that the officer testified to advising appellant that refusal to submit to the test would result in the "possibility" of license suspension rather than that a suspension would inevitably result from the refusal. It is urged that this testimony demonstrates that appellant was not advised of his rights under the implied consent law and of the consequences of his decision to undergo or to decline the test and that all testimony with reference to the warnings was "prejudicial" and should have, at the minimum, been stricken. We do not agree.

Even assuming without deciding that evidence of the Refusal to submit to a chemical test would be inadmissible because of a failure to fully advise under Code Ann. § 68A-902.1, in view of the exhaustive suspension review procedure established by Code Ann. § 68B-306, appellant's argument that a warning that refusal to submit to the test would "possibly" result in suspension did not permit him to make an intelligent choice in the matter strains credulity. Appellant was not entitled to a warning which tracked the Exact language of the implied consent statute. Howard v. Cofer, 150 Ga.App. 579, 258 S.E.2d 195 (1979). The trial court did not err...