People v. Lozon

211 N.W.2d 43, 48 Mich. App. 642, 1973 Mich. App. LEXIS 772

Opinion

Per Curiam.

Defendant was charged with unlawfully driving away an automobile (MCLA 750.413; MSA 28.645) and convicted of that offense by a jury in the Detroit Recorder’s Court. The first argument advanced by defendant on appeal is that the trial court erred by failing, sua sponte, to instruct the jury regarding the lesser included offense of use of a motor vehicle without authority (MCLA 750.414; MSA 28.646). The fact that defendant did not preserve this argument by objection below is sufficient reason for rejecting it. However, had the defendant preserved the argument by objection below, we would still reject it. To constitute an offense under the former statute, the prosecution must establish that the defendant took possession of the vehicle without authority; this element is not required to establish the latter, lesser included, offense. (See People v Smith, 213 Mich 351; 182 NW 64 [1921]; People v Stanley, 349 Mich 362; 84 NW2d 787 [1957].) There was no evidence whatsoever that the defendant had possession of the automobile with the owner’s authority; therefore the trial court did not err by failing to charge on the latter offense since there was no evidence to support such a charge.

The defendant also argues that the trial court erred by affirmatively excluding lesser included offenses from the jury’s consideration. However, since the record would not support a conviction for a lesser offense, we find no error. People v Membres, 34 Mich App 224; 191 NW2d 66 (1971).

Affirmed.