On May 13, 1975, defendant was found guilty by a jury of unlawfully driving away an automobile. MCLA 750.413; MSA 28.645. Defendant was sentenced to a prison term of from 3 years, 4 months, to 5 years on August 4, 1975. He appeals as of right.
Defendant raises this issue: Whether unlawful use of an automobile is a necessarily lesser included offense of unlawfully driving away an automobile.
The elements of the crime of unlawfully driving away an automobile, MCLA 750.413; MSA 28.645, are as follows:
1) The motor vehicle must have belonged to another.
2) Possession of the motor vehicle must have been taken.
3) Defendant must have driven or taken away the motor vehicle.
4) The taking of possession and the driving or taking away must have been done without authority.
5) Defendant must have intended to take unlawful
possession
of the vehicle and drive or take it away, knowing that he had no authority to do so. See
People v Shipp,
The elements of unlawful use of an automobile, MCLA 750.414; MSA 28.646, are as follows:
*3 1) The motor vehicle must have belonged to another.
2) Defendant must have taken or used the motor vehicle.
3) The taking or using must have been done without authority.
4) Defendant must have intended to take or use the vehicle, knowing that he had no authority to do so.
MCLA 750.414; MSA 28.646 uses the phrase "without intent to steal”. The absence of an intent to steal is not an element that the people must show beyond a reasonable doubt. This language merely indicates that the statute applies even though there is no intent to steal.
Taking
possession
of a motor vehicle without authority is prohibited by MCLA 750.413; MSA 28.645. Taking
possession
of a motor vehicle without authority is not prohibited by MCLA 750.414; MSA 28.646. Otherwise, the two statutes prohibit the same conduct and have the same elements. See
People v Blocker,
"Lawful possession” is not an element of the offense of unlawful use of an automobile. It is just that "unlawful possession” does not have to be shown to support a conviction for unlawful use of an automobile. Confusion concerning lesser offenses often results from an analysis which treats the absence of an element as a positive element of a crime. See
People v Chamblis,
Unlawful use of an automobile is a necessarily lesser included offense of unlawfully driving away an automobile. Failure of the trial court to give a requested instruction on a necessarily lesser in-
*4
eluded offense is reversible error.
People v Ora Jones,
Conviction of unlawfully driving away an automobile is reversed and the case is remanded for entry of judgment of conviction of unlawful use of an automobile. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the original charge. See
People v Lank Thomas,
We note that this case was tried before People v Ora Jones, supra, and we note that Judge Boucher is not clairvoyant, but in People v Lank Thomas, supra, defendant was convicted November 8, 1974, long before People v Ora Jones was released, and his conviction was reversed.
Remanded to the trial court for proceedings consistent herewith.