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Broadnax-Woodland v. State2/18/2004
when asked.
While the State's Request to Charge No. 19 omitted the word "knowingly," the defendant objected to the omission during the charge conference, and the trial court added the word so that the jury charge mirrored the accusation. But then the trial court specifically instructed the jury that its charge on intent--that criminal intent was "simply the intent to do the act which results in the violation of the law, and not necessarily the intent to commit the crime itself"--applied only to the first three counts and not to the count charging no proof of insurance. With respect to that charge, the trial court instructed the jury that intent may be inferred from the circumstances, *672 by acts and conduct, or "when it is the natural and necessary consequence of the act."
The general rule that the allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.
(Citation and punctuation omitted.) **353 Davis v. State, 139 Ga.App. 105, 106(2), 227 S.E.2d 900 (1976). The version of OCGA § 40-6-10 under which the defendant was convicted provided that "[t]he owner or operator of a motor vehicle for which minimum motor vehicle liability insurance coverage is required under Chapter 34 of Title 33 shall keep proof or evidence of required minimum insurance coverage in the vehicle at all times during the operation of the vehicle." [FN1] "Knowing" is not an element of driving without proof of insurance. Thompson v. State, 243 Ga.App. 878, 879, n. 3, 534 S.E.2d 151 (2000). While the accusation included that element, its inclusion was mere surplusage, and
FN1. The current version of OCGA § 40-6-10 provides that, until December 31, 2003, the owner or operator of a vehicle must have proof of insurance in the vehicle at all times. Beginning January 1, 2004, that requirement does not apply if the Department of Motor Vehicles database shows that the vehicle is insured.
can be entirely omitted without affecting the charge and without detriment to the accusation. Mere surplusage will not vitiate an indictment, and need not be established in proof. The material facts which constitute the offense charged must be stated and they must be proved in evidence. But allegations not essential to such purpose, which might be entirely omitted without affecting the charge and without detriment to the indictment, are considered as mere surplusage, and may be disregarded in evidence.
(Footnotes omitted.) Roseberry v. State, 251 Ga.App. 856, 858(3), 554 S.E.2d 816 (2001). In this case, the word "knowing" was not essential to proving the crime of driving with no proof of insurance. The accusation was sufficient to inform the defendant of the charge against her, and to protect her from another prosecution for the same offense. Eidson v. State, 262 Ga.App. 664, 665(1), 586 S.E.2d 362 (2003). The arresting officer confirmed several times that the defendant could not find her proof of insurance, which was sufficient evidence *673 to sustain the conviction. We therefore affirm the defendant's conviction for driving with no proof of insurance.
Judgment affirmed.
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