Rank v. StateRank v. State
- Reporters:
- , ,
- Before:
- Carley
Appellant was indicted on one count of homicide by vehicle, one count of driving under the influence, and one count of driving on the wrong side of the roadway, all as the result of a single automobile collision. A jury found him not guilty of homicide by vehicle in the first degree and of driving under the influence. However, the jury returned a guilty verdict as to driving on the wrong side of the roadway and homicide by vehicle in the second degree. Appellant appeals from the entry of judgment on the guilty verdicts.
1. Appellant asserts that a conviction of homicide by vehicle in the second degree was not an authorized verdict which could be returned under the indictment. Count One of the indictment is denominated “Homicide by Vehicle-First Degree.” However, the indictment alleges elements which, if proven, would authorize a jury to find appellant guilty of the offense of homicide by vehicle in either the first or the second degree. Count One charged, in pertinent part, that appellant did, “without malice aforethought, cause the death of [the victim], a human being, while said accused was then and there under the influence of an intoxicating liquor, and while operating a motor vehicle on the wrong side of a certain road. . . .” (Emphasis supplied.) The record reveals that the jury was charged as to both first and second degree vehicular homicide.
Appellant first contends that the indictment is fatally flawed because it is too indefinite and ambiguous to appraise him of the charge which is being brought against him. “Generally, the principle is well established in Georgia that ‘It is immaterial what the offense is called, if the averments of the presentment are such as to describe an offense against the laws of the [S]tate. It is not the name given to the bill which characterizes it, but the description in the averments of the indictment. [Cit.]’ [Cits.]. ... It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy. [Cits.]” State v. Eubanks, 239 Ga. 483, 484-485 (238 SE2d 38) (1977). Accordingly, the denomination of Count One of appellant’s indictment as a charge of “Homicide by Vehicle in First Degree” is immaterial. State v. Eu-banks, supra. “It is the description of the crime, rather than the description and number of the section under which it appears in the Code which furnishes the criterion for determining whether the indictment is good. [Cit.]. . . . ‘[I]t is the description of the crime given in the indictment, the criminal acts alleged therein to have been committed, that characterizes the offense.’ ” Curtis v. State, 80 Ga. App. 244, 246 (lb) (55 SE2d 758) (1949). As noted above, the descriptive averments of Count One of the indictment were sufficient to charge *29 appellant with both first and second degree homicide by vehicle.
The issue then becomes whether a defendant may be charged, in one count of an indictment, with both first and second degree vehicular homicide. “While a defendant can not be charged with
separate and distinct
offenses in one count of an indictment, offenses of the same nature and differing only in degree may be joined in one count of the same indictment. . . . The test is whether the acts charged in the indictment relate to but one transaction. [Cits.]” (Emphasis in original.)
Bennings v. State,
53 Ga. App. 218 (1) (185 SE 370) (1936). It has long been the rule in Georgia that different grades of the same offense may be alleged in the same count of an indictment. See
Long v. State,
12 Ga. 293 (3) (1852). It seems clear that
2. Appellant further contends that his conviction for both second degree vehicular homicide and driving on the wrong side of the road
*30
cannot stand. In
Woods v. State,
233 Ga. 495, 501 (212 SE2d 322) (1975), our Supreme Court held: “Proof of the elements of the offense of felony murder necessarily requires proof of the elements of the felony. [Cit.] Thus, the felony is a lesser included offense of felony murder under [
3. Over appellant’s objection, the trial court admitted opinion testimony from two investigating police officers concerning the relative positions of the two vehicles immediately prior to the collision. Appellant asserts that, as to this testimony, the officers were erroneously ruled to be qualified as experts. In the case at bar, the evidence showed that the two police officers had a combined total of more than 20 years experience with the Georgia State Patrol, including substantial special training in traffic accident investigation. Together, they had investigated several hundred traffic accidents, many of them involving serious injury or death. The trial court clearly did not abuse its discretion in qualifying the officers as experts and in allowing their opinion testimony into evidence. See generally Massee v. State Farm &c. Ins. Co., 128 Ga. App. 439 (197 SE2d 459) (1973); Erwin v. Gold Kist, 146 Ga. App. 372 (246 SE2d 404) (1978).
4. Appellant asserts that there was insufficient evidence to support the jury’s verdict. However, it is clear from the record that there was evidence sufficient to authorize any rational trior of fact to find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SE 2781, 61 LE2d 560) (1979).
5. For the reasons discussed, appellant’s conviction of homicide by vehicle in the second degree is affirmed and his conviction of driving on the wrong side of the road is reversed.
Judgment affirmed in part and reversed in part.
McMurray, P. J., and Pope, J., concur.