
    THE NAVAJO TRIBE OF INDIANS Plaintiff-Appellee vs. RICHARD GEORGE Defendant-Appellant
    Decided on January 26, 1972
    Merwin Lynch, Deputy Trial Prosecutor, Office of the Prosecutor, Window Rock, Arizona, for Plaintiff-Appellee
    John H, Yazzie, D.N.A., Window Rock, Arizona, for Defendant-Appellant
    Before KIRK, Chief Justice, BENALLY and BENNALLEY, Associate Justices
   KIRK, Chief Justice

The principal question presented on this appeal is whether a person charged with driving or under actual control of a vehicle while under the influence of intoxicating liquor as defined by Title 14, Navajo Tribal Code, Section 246, can be held to be guilty of the charge under evidence that the defendant's truck was found parked near the roadway with the lights on and the engine running and with defendant sitting behind the driver's wheel passed out from the influence of intoxicating liquor.

We hold that the defendant under these circumstances is "under actual physical control11 of the vehicle as provided by Title 14, Navajo Tribal Code, Section 246, and that he is guilty of the offense charged. This is in accord with the decisions of the state courts which hold that the vehicle need not be moving under facts such as are here involved: State v. Graham, 264 N.C. 228, 141 S.E.2nd 275; State v. Sweeney, 40 N.J. 359, 192 A.2nd 875; Note: 47 ALR2nd 570.

We further hold that a complaint charging the defendant with a violation of Title 14, Navajo Tribal Code, Section 246 by driving while under the influence of intoxicating liquor is sufficient to notify the defendant of the nature of the charge and that under such a complaint the proof is sufficient if the defendant is shown to be in the actual physical control of the vehicle.

The judgment of this Court is that the defendant is sentenced to labor for a period not to exceed thirty (30) days or in lieu of labor to serve the same time in jail. The Trial Court judgment is modified and the fine returned.

BENALLY, Associate Justice, and BENNALLEY, Associate Justice, concur.  