{ "id": 3366300, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL L. CLARK, Defendant-Appellant", "name_abbreviation": "People v. Clark", "decision_date": "1977-04-18", "docket_number": "No. 13886", "first_page": "568", "last_page": "572", "citations": [ { "type": "official", "cite": "47 Ill. App. 3d 568" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "297 N.E.2d 578", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 310", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852335 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0310-01" ] }, { "cite": "268 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. 2d 106", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907836 ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0106-01" ] }, { "cite": "347 N.E.2d 71", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 912", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2714195 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0912-01" ] }, { "cite": "243 N.E.2d 709", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 2d 441", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599857 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0441-01" ] }, { "cite": "338 N.E.2d 239", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 736", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2871194 ], "weight": 2, "pin_cites": [ { "page": "738" }, { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0736-01" ] } ], "analysis": { "cardinality": 572, "char_count": 9952, "ocr_confidence": 0.899, "pagerank": { "raw": 1.3383948061687705e-07, "percentile": 0.6306336778707948 }, "sha256": "a5c10244272f291b357f14fc40cce088369a868249b03995b1ae55949a04f712", "simhash": "1:2c442cfab8b12484", "word_count": 1675 }, "last_updated": "2023-07-14T21:01:05.657790+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL L. CLARK, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE MILLS\ndelivered the opinion of the court:\nThe bottom line first: we affirm.\nClark 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.\nNow, a brief review of the evidence at trial:\nRoy 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\u2019s seat and a small child in the passenger\u2019s seat. He could not arouse the man and called the police.\nBoth the policemen who responded to Mr. Clemons\u2019 call testified. Defendant was slumped over the wheel of the car in the driveway, the car\u2019s 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\u2019s and the passenger\u2019s seat. Clark could not stand without assistance and flunked both the breathalizer and balance tests. He denied he had been operating the car.\nLarry 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\u2019 to celebrate. When it was time to leave, Clark was too intoxicated to drive but agreed to let Collins drive him home in defendant\u2019s 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\u2019 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.\nClark testified but basically said that he remembered nothing about the occurrence.\nIn 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.\nDefendant first argues that he was found guilty of a crime with which he was not charged. The complaint charged \u201cdriving\u201d while intoxicated but the instructions, he argues, permitted the jury to find him guilty of the different offense of \u201cbeing in actual physical control\u201d while intoxicated.\nThe statute defines the offense as follows:\n\u201c(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.\u201d (Emphasis added.) Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11\u2014501(a).\nWe 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:\n\u201cIt is apparent from the cases referred to that the term \u2018driving\u2019 is used to include both the actual operation of a moving vehicle and the circumstance of being \u2018in actual physical control\u2019 of the vehicle, even though the vehicle may not be moving.\u201d\nThis common understanding is reflected in the way the term \u201cdriver\u201d is used, not just for the person in control of a moving vehicle but for anyone in the driver\u2019s seat of a vehicle readily able to be moved.\nNumerous cases are cited by defendant where \u201cdriving\u201d is said to be an essential element of this offense. But these cases are not in conflict with our holding here. For instance, the conviction was reversed in People v. Ammons (1968), 103 Ill. App. 2d 441, 243 N.E.2d 709. There an officer chased a car with two persons in it. When it was finally stopped, he found only one person, the defendant, who was intoxicated. Ammons was found on the floor of the front seat with his body mainly on the passenger\u2019s side and his head towards the driver\u2019s side. It is apparent that from such a position, there could be no inference that the defendant was in actual physical control or that he was the one who had operated the vehicle. For this reason, the offense was not proved. Operation as opposed to control was not a factor.\nTraffic offenses need not be charged with the specificity of indictments. Naming the offense and citing the statute are generally sufficient. (People v. Oulson (1976), 37 Ill. App. 3d 912, 347 N.E.2d 71.) The complaint here was sufficient to charge the offense for which defendant was convicted.\nDefendant argues that because of the facts here, the complaint did not adequately inform him of the nature of the offense and\u2014to his prejudice\u2014misled him in preparing his defense. A very similar argument was presented in People v. Simpkins (1971), 48 Ill. 2d 106, 268 N.E.2d 386. Defendants there were charged with mob action in that they, with others, disturbed the peace by firing a gun. Defendants took the stand and denied firing a gun but testified to facts from which it could be inferred that they started, or were involved in, a gang fight. They were convicted. On appeal they argued that a fatal variance existed between the complaint, which charged disturbing the peace by firing a gun, and the proof, which showed no gun firing but a gang fight. They argued that the complaint misled them in preparing their defense. But the supreme court stated that the words in the complaint, \u201cfiring a gun,\u201d were surplusage and could be disregarded. Since defendants did not contend that their testimony was inaccurate or that they omitted putting any relevant facts before the court because of the surplus words, the contention that the variance was prejudicial was rejected. In the case at bar, defendant Clark does not argue that any defense testimony was inaccurate or omitted because of the wording of the complaint. Consequently, the Simpkins rationale must be followed.\nAnother argument also concerns the driving-while-intoxicated complaint. The complaint stated, in part:\n\u201c * * * defendant did unlawfully: OPERATE * * * upon a public highway namely, at (location): 301 S. McKinley.\u201d\nExcept for the address, the quoted material was part of the printed traffic ticket. The court gave instructions to the jury which permitted them to find defendant guilty regardless of whether the offense was committed on public or private property. In People v. Guynn it was specifically held that a violation of section 11\u2014501(a) can occur on private as well as public property. (People v. Guynn (1975), 33 Ill. App. 3d 736, 739, 338 N.E.2d 239.) Defendant does not argue that the violation cannot be committed on private property but does contend that a fatal variance exists in this case as the complaint alleged it occurred upon a public highway but the proof showed only control on private property.\nAgain, People v. Simpkins is relevant here. There an additional phrase was treated as surplusage which could be disregarded without affecting the validity of the complaints. In the case at bar, the phrase \u201cupon a public highway\u201d is unnecessary to allege an offense as it is not an essential element of the offense of \u201cdriving while intoxicated.\u201d Since Clark does not contend that this surplusage led him to omit or fail to place any relevant facts into evidence, or that the testimony was inaccurate, no prejudice is shown. See also People v. Young (1973), 12 Ill. App. 3d 310, 297 N.E.2d 578.\nThe next contention involves the second charge for which defendant was convicted. The complaint alleged \u201cIllegal Transportation of Alcoholic Liquor\u201d and the People\u2019s instruction on this issue was phrased in the language of the statute and stated:\n\u201cA person commits the offense of Illegal Transportation of Liquor, who transports, carries, possesses, or has any alcoholic liquor within the passenger area of a motor vehicle except in the original package and with the seal unbroken.\u201d\nClark objects to this asserted expansion of the charge. He argues, in effect, that section 11\u2014502 contains within it numerous offenses, namely: illegal transportation, illegal carrying, illegal possession and illegal having. However, these acts, although stated in the disjunctive, are intimately associated and therefore the complaint is sufficient and the instruction properly given. See People v. Oulson.\nHe argues that he was not proven guilty beyond a reasonable doubt and that it was error to refuse an instruction on circumstantial evidence. Both these arguments are dependent on the first condition asserted, that it was necessary for the State to show that defendant actually operated the vehicle. Since that argument has been rejected, it is unnecessary for us to discuss these two issues.\nFinally, defendant argues that an unconscious person cannot be \u201cin actual physical control\u201d and therefore the offense of driving while intoxicated was not proven. However, even if the defense version of events is accepted, defendant must have moved himself from the passenger\u2019s seat to the driver\u2019s seat after Mr. Collins had left. This would be\u2014in all credulity\u2014an undertaking of some difficulty in a car the size of defendant\u2019s Honda Civic with a stick shift. The case of the completely unconscious person therefore need not be addressed.\nAffirmed.\nCRAVEN, P. J., and REARDON, J., concur.", "type": "majority", "author": "Mr. JUSTICE MILLS" } ], "attorneys": [ "Edward H. Rawles, of Reno, O\u2019Byrne & Kepley, of Champaign, for appellant.", "James R. Burgess, Jr., State\u2019s Attorney, of Urbana (James E. Hinterlong and Linda M. Vodar, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL L. CLARK, Defendant-Appellant.\nFourth District\nNo. 13886\nOpinion filed April 18, 1977.\nEdward H. Rawles, of Reno, O\u2019Byrne & Kepley, of Champaign, for appellant.\nJames R. Burgess, Jr., State\u2019s Attorney, of Urbana (James E. Hinterlong and Linda M. Vodar, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0568-01", "first_page_order": 606, "last_page_order": 610 }