Vann v. State

• Decision Date: 04 March 1980
• Docket Number: No. 59408,59408
• Citation: 266 S.E.2d 349,153 Ga.App. 710
• Parties: VANN v. The STATE.
• Court: Georgia Court of Appeals

Page 349

266 S.E.2d 349

153 Ga.App. 710

VANN v. The STATE.

No. 59408.

Court of Appeals of Georgia.

Submitted Feb. 13, 1980.

Decided March 4, 1980.

Harl C. Duffey, Jr., Rome, for appellant.

F. Larry Salmon, Dist. Atty., Stephen F. Lanier, Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

Defendant appeals the denial of his motion for a new trial after his conviction for driving under the influence of alcohol. Held :

1. Contrary to defendant's claim we find the evidence sufficient to authorize a rational juror to find him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. The allegation of the accusation was that defendant unlawfully drove an automobile "in an intoxicated condition and while under the influence of intoxicating liquors, wines, beers and drugs . . ." The evidence showed only alcoholic intoxication. Defendant contends there was a fatal variance between the allegation and the proof because there was no proof of any alleged drug intoxication. Code Ann. § 68A-902(a) (Ga.L.1974, pp. 633, 671) provides: "A person shall not drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol; (2) Under the influence of any drug to a degree which renders him incapable of safely driving; or (3) Under the combined influence of alcohol and any drug to a degree which renders him incapable of safely driving."

" 'When a defendant is charged with the violation of a penal statute containing disjunctively several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively if it charges more than one of them. (Cits.) Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the State to prove all of such separate ways or methods alleged in the indictment, but the State makes a prima facie case upon its establishment by proof of any one of them.' Jones v. State, 75 Ga.App. 610(4), 44 S.E.2d 174." Leverenz v. State, 140 Ga.App. 632, 634, 231 S.E.2d 513, 516. Since Code Ann. § 68A-902(a), supra, is disjunctive and the accusation conjunctive with one of the conjunctives proven, there is no variance; only a failure to prove more than one of the several ways the crime could have been committed.

3. In connection with the preceding division, the trial court did not err in not charging on drug intoxication. There is no duty to charge on possible issues in a case which are not supported by evidence. Pullen v. State, 146 Ga.App. 665(3), 247 S.E.2d 128; Franklin v. State, 136 Ga.App. 47(2), 220 S.E.2d 60.

4. The arresting police officer testified that after he stopped defendant and determined that defendant had been drinking, he placed defendant under arrest and read him the implied consent law, including the requirement of taking a breath test for alcohol. Over an objection of irrelevant and immaterial, he also testified that he informed defendant that if he failed to take the test his driver's license could...