State v. Black, 57273

• Decision Date: 16 March 1979
• Docket Number: No. 57273,57273
• Citation: 254 S.E.2d 506,149 Ga.App. 389
• Parties: The STATE v. BLACK.
• Court: Georgia Court of Appeals

Page 506

254 S.E.2d 506

149 Ga.App. 389

The STATE v. BLACK.

No. 57273.

Court of Appeals of Georgia.

Argued Feb. 13, 1979.

Decided March 16, 1979.

Sallie Rich Jocoy, Asst. Dist. Atty., Peugh & Bradley, Wayne B. Bradley, Milledgeville, for appellant.

Frank D. Farrar, Jr., Gray, Denmark Groover, Jr., Macon, for appellee.

McMURRAY, Judge.

Defendant was indicted 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 # 11, in a reckless manner, to wit: failing to yield right of way, did unlawfully and without malice aforethought" cause the death of the deceased person. Defendant demurred to the indictment as follows: (1) a special demurrer for the reason that "it is not therein stated whether he is charged with Vehicle Homicide in the first degree or Vehicle Homicide in the second degree;" (2) a special demurrer for the reason that the indictment does not specify what section of Title 68A this defendant is charged with violating in allegedly causing the death of another person; and (3) a general demurrer attacking the constitutionality of Code Ann. § 68A-901(a) which provides that any person who drives any vehicle in reckless disregard for the safety of persons or property is guilty of reckless driving, contending it deprives him of life, liberty or property without due process of law. After a hearing the two special demurrers were sustained. However, the court overruled and disallowed the general demurrer as made since the court was in doubt as to whether or not the wording of the indictment constituted an allegation that the defendant was in fact in violation of Code Ann. § 68A-901(a) "but that as made said general demurrer is . . . denied." The state appeals. Held:

1. In 1974 (Ga.L.1974, pp. 633-699) the Georgia Code was amended by adding thereto a voluminous comprehensive statute known as "The Uniform Rules of the Road Act." In 1976 Code § 68 A-903 was amended striking same in its entirety to redefine homicide by vehicle in the first degree and homicide by vehicle in the second degree. See Ga.L.1976, pp. 977, 978. Consequently, Code Ann. § 68A-903(a), supra, amounts to a felony in the event the accused without malice aforethought causes the death of another person through the violation of Code § 68A-901, supra (in driving a vehicle in reckless disregard for the safety of persons or property), Code § 68A-902, supra (driving with ability impaired by alcohol or drugs), or Code Ann. § 68A-904 (fleeing or attempting to elude a police officer), (amended, Ga.L.1978, p. 1483, effective July 1, 1978 the date of the incident here occurring in 1976). All other violations of Title 68A, supra, other than a violation of the above three sections, in which the accused causes the death of another person without intention to do so is declared to be guilty of homicide by vehicle in the second degree and punishable as for a misdemeanor.

2. The indictment here charges "Vehicle Homicide (68A-903)," that the defendant caused the death of the deceased person while operating a motor vehicle "in a reckless manner, to wit: failing to yield right of way." Clearly the statute involves two grades of homicide, and one cannot ascertain which grade for which he has been indicted. If the indictment fails to use the language of the statute, it must be determined by the allegations. See Disharoon v. State, 95 Ga. 351, 356, 22 S.E. 698; Lee v. State, 184 Ga. 327(2), 191 S.E. 256; Turner v. State, 233 Ga. 538, 212 S.E.2d 370. Thus the true criterion as to the sufficiency of an indictment is the description of the crime charged rather than the description and number of the statute under the code or the law. Curtis v. State, 80 Ga.App. 244(1b), 55 S.E.2d 758; Perkins v. State, 29 Ga.App. 278(2), 115 S.E. 27. However, the true test of the sufficiency of the 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 offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' " Walker v. State, 146 Ga.App. 237, 241, 246 S.E.2d 206, 209, and cits.

3. The defendant is entitled to know the particular facts constituting the alleged offense to enable him to prepare for trial. Johnson v. State, 90 Ga. 441, 444, 16 S.E. 92; Mell v. State, 69 Ga.App. 302, 303, 25 S.E.2d 142; Harris v. State, 37 Ga.App. 113, 114, 138 S.E. 922; Roberts v. State, 54 Ga.App. 704, 705, 188 S.E. 844; Ramsey v. State, 85 Ga.App. 245, 247, 69 S.E.2d 98; Lee v. State, 117 Ga.App. 765, 162 S.E.2d 229.

4. The offense here under Code Ann. § 68A-904(a) or Code Ann. § 68A-904(b) is purely statutory and has no relation to the common law. Charging the defendant in either the terms of the statute (Code Ann. § 68A-903(a) or (b)) would be...