dissenting: I am unable to agree with the majority. In my opinion, unlawful deprivation of property (K.S.A. 21-3705) is a lesser included offense of theft (K.S.A. 1979 Supp. 21-3701).
I am convinced the Kansas Supreme Court has heretofore determined that unlawful deprivation of property is a lesser included offense of theft. In my opinion, State v. Moore, 220 Kan. 707, 709, 556 P.2d 409 (1976), and State v. Andrews, 218 Kan. 156, 157-158, 542 P.2d 325 (1975), cited in the majority opinion leave no doubt that our Supreme Court is of the opinion that *419unlawful deprivation of property is a lesser included offense of theft.
It seems to me that unlawful deprivation of property and theft involve a different degree of intent; i.e., the intent to temporarily deprive versus the intent to permanently deprive. Thus, there is not a different element involved in unlawful deprivation. All of the essential elements are the same. Other jurisdictions that have considered whether “joyriding” is a lesser included offense of theft, e.g., State v. O’Brien, 114 N.H. 233, 317 A.2d 783 (1974), and Commonwealth v. Nace, 222 Pa. Super. Ct. 329, 295 A.2d 87 (1972), are in accord with what I believe to be the rule in Kansas.
There is sufficient competent evidence concerning the automobile motor transaction to support an instruction on unlawful deprivation of property. Defendant testified he had charged the motor to himself and intended to pay for it. If that testimony and other evidence presented by the defendant had been accepted by the jury as true, it could have convicted defendant of unlawful deprivation of property. I would therefore reverse the conviction concerning the automobile motor transaction and remand it for a new trial.
I would, however, affirm the conviction on counts one through five for the reason there is no competent evidence to require such an instruction. Defendant denied any intentional taking, and if the jury had believed his testimony concerning counts one through five it necessarily would have acquitted defendant under either theory. Simply stated, defendant did not defend on an unlawful deprivation theory. As to one count, he denied any knowledge of the missing deposit and offered an alibi. On others, he merely denied any intent to deprive the owner and speculated as to what might have occurred. There is no competent evidence to support an instruction for unlawful deprivation in counts one through five, thus the trial court did not err by reason of its failure to instruct on unlawful deprivation of property.