We disagree. Although most federal courts of appeals have, under their supervisory power to control proceedings in federal trial court, disapproved of the use of a presumption-of-truthfulness charge substantially similar to the one given here, see Cupp v. Naughten, 414 U.S. 141, 143-147 ( 94 S.C. 396, 38 L.Ed.2d 368) (1973), the Supreme Court has held that the charge is not unconstitutionally burden-shifting, Cupp v.Naughten, supra, 414 U.S. ___. Moreover, both this court, Davis v. State, 241 Ga. 376, 384 (7) ( 247 S.E.2d 45) (1978), and the Georgia Court of Appeals, Ivie v. State, 151 Ga. App. 496 (4) ( 260 S.E.2d 543) (1979), have held that charges identical in material respect to the one given here are constitutional. We therefore conclude that the charge challenged by Noggle is not unconstitutional.
Accordingly, the trial court did not err in denying his motion in arrest of judgment unless the alleged defects in the indictment were so great as to cause the indictment to be absolutely void. State v. Eubanks, 239 Ga. 483, 485 ( 238 S.E.2d 38) (1977); Ivie v. State, 151 Ga. App. 496, 497 ( 260 S.E.2d 543) (1979). The indictment charged, in relevant part, that Drake did "unlawfully and with malice aforethought hire the killing of Donald Evans with a pistol . . ."
To the contrary, the evidence was sufficient for the jury to find beyond a reasonable doubt that Bautista drove his vehicle in reckless disregard for the safety of others and that he caused Major's death through such reckless driving. Ivie v. State, 151 Ga. App. 496, 496-497 (1) ( 260 SE2d 543) (1979) (evidence that the defendant drove his vehicle in reckless disregard for the safety of others by failing to yield the right-of-way to oncoming traffic was sufficient to convict the defendant of first degree vehicular homicide predicated on reckless driving). His convictions are affirmed.
"[A] common sense reading of the entire indictment makes it clear that appellant was being charged with homicide by vehicle in the first degree." Ivie v. State, 151 Ga. App. 496, 497 (2) ( 260 SE2d 543) (1979). Accordingly, the trial court erred by finding that Counts I and II charged only homicide in the second degree.
Parks v. State, 246 Ga. App. 888, 889 (1) ( 543 S.E.2d 39) (2000).England v. State, 232 Ga. App. 842, 844 (2) ( 502 S.E.2d 770) (1998); Duggan v. State, 225 Ga. App. 291, 297 (8) ( 483 S.E.2d 373) (1997); Dunbar v. State, 209 Ga. App. 97, 98 ( 432 S.E.2d 829) (1993); Ivie v. State, 151 Ga. App. 496, 497 (2) ( 260 S.E.2d 543) (1979). OCGA § 16-8-14 (a), (b) (1).
]" State v. Black, 149 Ga. App. 389, 391 (4) ( 254 S.E.2d 506) (1979). England did not make this challenge to the accusation by way of special demurrer prior to pleading guilty, however, and consequently has waived her right to raise the argument on appeal. See Dunbar v. State, 209 Ga. App. 97, 98 ( 432 S.E.2d 829) (1993); Ivie v. State, 151 Ga. App. 496, 497 (2) ( 260 S.E.2d 543) (1979). (b) England also argues that she was guilty as a matter of fact only of a misdemeanor violation of OCGA § 40-5-58.
This contention has no merit. Duggan did not assert any defect in the indictment until after his conviction and accordingly cannot challenge it now unless the alleged defects in the indictment are so great as to cause the indictment to be absolutely void. State v. Eubanks, 239 Ga. 483, 485-486 ( 238 S.E.2d 38) (1977); Ivie v. State, 151 Ga. App. 496, 497 (2) ( 260 S.E.2d 543) (1979). The indictment charged, in relevant part, that Duggan "did, without malice aforethought, cause the death of another person . . . through the violation of [OCGA §] 40-6-390 Reckless Driving by driving . . . a moving vehicle, at a speed exceeding the maximum speed limit on the curved ramp from Interstate 285 East to Interstate 85 South in reckless disregard for the safety of persons and property."
Bafford's "argument that a warning that refusal to submit to the test would `possibly' result in suspension did not permit him to make an intelligent choice in the matter strains credulity." Ivie v. State, 151 Ga. App. 496, 498 (3) ( 260 S.E.2d 543) (1979). Compare Coleman, supra, and Deckard v. State, 210 Ga. App. 421, 423 ( 436 S.E.2d 536) (1993), in which we held it was unlawfully coercive for officers to tell non-residents that test refusal would cause their home states to revoke or suspend their driver's licenses.
In order for such chemical analysis to be admissible in evidence, "[a] defendant is `not entitled to a warning which track(s) the exact language of the implied consent statute. (Cit.)' Ivie v. State, 151 Ga. App. 496, 498 ( 260 S.E.2d 543) (1979)." (Emphasis in original.)
L. 1963, pp. 1072, 1078; Code Ann. § 70-207 [OCGA § 5-5-24]) this does not relieve him from the necessity of requesting instructions except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence. [Cits.]" Hardin v. State, 141 Ga. App. 115, 116 (2) ( 232 S.E.2d 631). Accord Ivie v. State, 151 Ga. App. 496, 500 (5) ( 260 S.E.2d 543). Was the failure to charge on self-defense clearly harmful as a matter of law? We think not. Self-defense was not the defendant's sole defense.