Opinion
73636.
DECIDED APRIL 7, 1987. REHEARING DENIED APRIL 22, 1987.
Vehicular homicide. Chatham State Court. Before Judge Mikell.
John R. Calhoun, Malcolm MacKenzie III, for appellant.
Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.
William A. E. Brown brings this appeal from his conviction and sentence of homicide by vehicle in the second degree, OCGA § 40-6-393 (b). Held:
1. Defendant's first enumeration assigns error to the trial court's repeating the instruction to the jury on vehicular homicide "because this repetitious instruction gave undue prominence to the State's accusation." We find no merit in this assertion.
"A mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant's rights. [Cit.]" Brown v. State, 142 Ga. App. 247, 248 ( 235 S.E.2d 671) (1977). "Mere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury." Brown v. Brown, 89 Ga. App. 428, 429 ( 80 S.E.2d 2) (1953); see Patterson v. State, 207 Ga. 357 (2) ( 61 S.E.2d 462) (1950). The repetition complained of resulted from a jury request for a recharge on the issue of intent and was accompanied by several references to the State's burden of proving each element of the crime charged beyond a reasonable doubt. "When the charge is read as a whole, we cannot say that it confused or misled the jury or in any manner resulted in an unfair statement of the law as it relates to defendant." Brown v. State, supra at 248.
2. Defendant's second enumeration of error asserts that the trial court's instructions on intent were "confusing, conflicting, erroneous and impermissibly lessened the burden of the State to prove the element of intent beyond a reasonable doubt." We find no merit in any of the arguments raised here.
(a) First, we find no error in the trial court's charge to the effect that the "intention" the State was required to prove beyond a reasonable doubt did not mean an intention to violate a penal statute but an intention to commit the act prohibited thereby. See Price v. State, 253 Ga. 250 (2) ( 319 S.E.2d 849) (1984); Balark v. State, 81 Ga. App. 649 (1a) ( 59 S.E.2d 524) (1950). The asserted internal inconsistency in this charge "was not misleading except by construction, and in view of the clarity of the charge as a whole, it is unlikely that [this alleged inconsistency] would mislead a jury of ordinary intelligence. [Cit.]" Harper v. State, 155 Ga. App. 764, 766 ( 272 S.E.2d 736) (1980). See Griffis v. State, 242 Ga. 26 (2b) ( 247 S.E.2d 833) (1978). See generally Avery v. State, 141 Ga. App. 92 (4) ( 232 S.E.2d 618) (1977).
"[T]he intent that the State is required to prove beyond a reasonable doubt is not an intention to speed, it's not an intention to violate the law. . . . In other words, . . . the State must prove that the Defendant intended to operate a vehicle at greater than the speed limit." (Emphasis supplied.)
(b) Also, we find no error in the trial court's further instructions on intent in the form of an illustration, where "[t]he illustration here used did not tend to mislead, inflame, or prejudice the jury against the accused." Benton v. State, 185 Ga. 254, 255 ( 194 S.E. 166) (1937); accord Brown v. State, 177 Ga. App. 778 (2) ( 341 S.E.2d 226) (1986). See generally Collier v. State, 154 Ga. 68 (3, 4) ( 113 S.E. 213) (1922). The holding in Brinson v. State, 163 Ga. App. 567 (2) ( 295 S.E.2d 536) (1982), does not compel a different conclusion. In Brinson the challenged charge on intent was inflammatory, which is clearly not the situation in the case at bar.
(c) Finally, the trial court took proper curative action to correct its misstatement that the State must prove intent by a preponderance of the evidence. See Young v. State, 131 Ga. App. 553 (3) ( 206 S.E.2d 536) (1974). See generally Cameron v. State, 123 Ga. App. 282 (1) ( 180 S.E.2d 554) (1971).
3. The trial court did not err in excluding from evidence the owner's manual for the automobile appellant was driving at the time of the fatal accident. See Goldsmith v. State, 148 Ga. App. 786 (7) ( 252 S.E.2d 657) (1979), and cits. Nor did the trial court err in excluding from evidence the allegedly defective rear axle as there was no showing that this item caused the accident or was otherwise relevant to the issues in this case. See generally McNabb v. State, 70 Ga. App. 798 (1) ( 29 S.E.2d 643) (1944).
4. Defendant's hearsay challenge to the admissibility of the State Crime Lab autopsy report is controlled adversely to him by the holding in Millwood v. State, 166 Ga. App. 292 (5) ( 304 S.E.2d 103) (1983). Defendant's further challenge to the completeness of the report goes to its weight, not its admissibility.
Judgment affirmed. Birdsong, C. J., and Deen, P. J., concur.