John Russell Howard pled guilty to homicide by vehicle, OCGA § 40-6-393 (a), and was sentenced to serve 15 years in prison. His guilty plea to additional counts of reckless driving, OCGA § 40-6-390, exceeding allowed width of vehicles and loads, OCGA § 32-6-23, and failure to obtain a permit, OCGA §§ 32-6-20; 32-6-26; 32-6-28, merged into the vehicular homicide count. Following the denial of his motion for new trial, Howard appeals, contending the indictment was fatally defeсtive in failing to charge him with a crime against the laws of Georgia. For the reasons which follow, wе affirm.
1. Initially, we address the State’s argument that Howard may not raise his challenge to the indictment in this direct appeal but may raise it only in a separate habeas corpus procеeding. Ordinarily, “[a] motion for new trial is not the proper method to attack the sufficiency of аn indictment and does not provide a basis for this Court to review the indictment.”
McKay v. State,
[w]hen an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law and, upon thе trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict, the accused’s proper remedy is a motion in arrest of judgment or habeas corpus.
(Punctuation omitted.)
McKay,
2. Howard contends Count 2 of the indictment failed to charge *488 him with felony vehiculаr homicide in that it failed to charge the underlying offense, reckless driving, because it did not allege that he drove in “reckless disregard for the safety of persons or property.” Count 2 allegеd as follows:
John Russell Howard did . . . unlawfully without malice aforethought, cause the death of [the victim], a human being, through a violation of OCGA § 40-6-390, Reckless Driving, in that [he] did operate a vehicle with a width greatеr than allowed by OCGA [§] 32-6-23, and did violate Department of Transportation Rules, Chapter 672-2, regarding required escorts, time of travel, route of travel, required visibility and travel over bridges less than 28 feet in width, cоntrary to the laws of this state.
As Howard correctly argues, an indictment for reckless driving under OCGA § 40-6-390 (a) which “fails to include the crucial language that [the defendant] drove
with reckless disregard for the safety of persons or property”
is “substantively defective.” (Emphasis in original.)
Ross v. State,
But Count 2 of the indiсtment charged Howard not with reckless driving but with vehicular homicide, with reckless driving as the predicate or underlying violation. Ordinarily, “[a]negations set forth in one count of an indictment cannot be imputed to a separate count, absent specific reference to the allegation sought to be imputed.” (Footnote omitted.)
Smith v. Hardrick,
Because the count of the indictment charging Howard with reckless driving included the “crucial language” that he drove with “reckless disregard for the safety of persons and proрerty,” Count 2, charging him with vehicular homicide based on that predicate act, contained the elements of the' offense and apprised him of the
*489
charges he must be prepared to answer at trial. Cf.
Ross,
3. Howard further contends Counts 4, 5, and 6 of the indictment failed to charge him with a сrime. Because the trial court merged the driving violations into the vehicular homicide count fоr sentencing, Howard’s convictions of reckless driving, exceeding allowed width of vehicles and loads, and failure to obtain a permit stand vacated by operation of law, and Howard’s contentions as to those convictions are moot.
Wilkins v. State,
Judgment affirmed.