(dissenting).
In order for one crime to be included in another crime, there must not be any elements in the lesser that were not also in the greater.1 The law is stated in 7 Am.Jur.2d., Automobiles and Highway Traffic, Section 343 as follows:
. . . Furthermore, since the offense of taking and using á motor vehicle without the consent of its owner is distinct in its elements from the offense of larceny, an acquittal of one of these offenses is not a bar to a prosecution for the other.
The reason for this is that there is an element in depriving an owner which is not required for the crime of larceny. The crime of larceny is set out in our statute thus:
A person commits theft if he obtains or exercises unauthorized control over the property2 of another with a purpose to deprive him thereof.
The crime of depriving an owner of his automobile is defined in our statute as follows:
Any person who drives a vehicle, not his own, without the consent of the own- . er thereof and with intent temporarily to deprive said owner of his possession of such vehicle, without intent to steal the same is guilty of a misdemeanor. . . 3 [Emphasis added.]
It is obvious that there is an element in the crime of depriving an owner that is not required in the crime of larceny, to wit: the defendant must drive the car, which in larceny he need not do. In larceny, the defendant may push the motor vehicle, he may dismantle it, or he may load it on a truck and haul it away. One may steal a motor vehicle that cannot be started, but in order to deprive a owner of the use of his car, the defendant must drive it.
The law of depriving was enacted to serve as a deterrent to the propensity of young people to take a joy ride in an automobile that they did not own, without having to charge them with the felony of stealing the car when they were apprehended. Therefore, “driving” was intentionally made an element of the crime.
In the case of State v. Ash4 this Court said:
In the instant case the jury found the defendant guilty of intending to deprive the owner permanently of the use of his car, and we cannot see why they should *360also have been required to decide if he only intended to deprive the owner temporarily. The two crimes are based upon contrary intentions in the mind of the defendant. However, this does not mean that one offense is necessarily included within the charge made of the other. An acquittal of one is not a bar to a prosecution for the other offense.
[Emphasis added.]
Whether or not the court can find a defendant guilty of an included offense after he has found the defendant not guilty of the greater matter is not in this case for the reason that depriving an owner of the use of his motor vehicle is not an included offense in the crime of larceny with which appellant was charged and acquitted. The state may file a complaint for depriving an owner if it chooses to do so.
I would reverse the judgment of conviction.
. Beck v. State, 238 Ind. 210, 149 N.E.2d 695, 697 (1958); State v. Matthews, 295 A.2d 745, 747 (Del.Super.1972); Gaskin v. State, 244 Ark. 541, 426 S.W.2d 407, 409 (1968).
. 76-6-404, U.C.A.1953 as amended (1975 Supp.).
. 41-1-109, U.C.A.1953 as amended.
. 23 Utah 2d 14, 456 P.2d 154 (1969).