APPEAL from the Circuit Court of Champaign County; the Hon.
SARAH M. LUMPP, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
The bottom line first: we affirm.
Clark was charged with drunk driving and illegal transportation of liquor and was convicted by a jury of both charges. On appeal he raises numerous issues involving allegedly fatal variances between the complaints, the instructions and the proof.
Now, a brief review of the evidence at trial:
Roy Clemons resides at 301 South McKinley, Champaign, Illinois, and at 10:15 p.m., December 18, 1975, he became aware of a car in his driveway. At first he presumed it was his daughter but, after checking from his window a few times, decided it was not. He went out to find a man slumped over in the driver's seat and a small child in the passenger's seat. He could not arouse the man and called the police.
Both the policemen who responded to Mr. Clemons' call testified. Defendant was slumped over the wheel of the car in the driveway, the car's lights were on and the motor was running. The car door was opened with a coat hanger as defendant did not respond. A bottle of whiskey was found between the driver's and the passenger's seat. Clark could not stand without assistance and flunked both the breathalizer and balance tests. He denied he had been operating the car.
Larry Collins, for the defense, testified that the day in question was the last day of final exams. Defendant and Collins are both graduate students at the University of Illinois and defendant went over to Collins' to celebrate. When it was time to leave, Clark was too intoxicated to drive but agreed to let Collins drive him home in defendant's car. But that car had a stick shift unfamiliar to Collins. So, after 10 blocks, Collins decided to turn around and go back for his own car and turned into Mr. Clemons' driveway for this purpose. However, Collins could not find reverse, so he left the car, with the engine running for heat, and set off to get his own. When he returned, defendant and his daughter were gone but the police were still there. Collins did not approach the police. Collins further testified that it was he who put the bottle of whiskey in the car, as it was the one defendant had brought with him and from which they had been drinking that night.
Clark testified but basically said that he remembered nothing about the occurrence.
In rebuttal, Mr. Clemons testified that, although he got up almost immediately after the car arrived in his driveway, he did not see anyone walking away from the car nor did he hear doors slam.
Defendant first argues that he was found guilty of a crime with which he was not charged. The complaint charged "driving" while intoxicated but the instructions, he argues, permitted the jury to find him guilty of the different offense of "being in actual physical control" while intoxicated.
The statute defines the offense as follows:
"(a) No person who is under the influence of intoxicating liquor may drive or be in actual physical control of any vehicle within this State." (Emphasis added.) Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-501(a).
• 1 We do not believe that the statute defines two disparate and alternative offenses. As was stated in People v. Guynn (1975), 33 Ill. App.3d 736, 738, 338 N.E.2d 239, 240:
"It is apparent from the cases referred to that the term `driving' is used to include both the actual operation of a moving vehicle and the circumstance of being `in actual physical control' of the ...