(dissenting).
The defendant was tried by the court for the crime of theft of an automobile and was found not guilty. The court then found the defendant guilty of “depriving an owner of a vehicle, an included offense.”
The crime of which the defendant was found guilty is not an included offense with the crime of theft. Theft requires an as-portation, and that element is made out by a movement of the vehicle, whether by pushing or by pulling with external forces. The crime of depriving an owner has one other element that is not required in theft, to wit: the defendant must “drive” the automobile.
There cannot be an included offense unless all the elements of the smaller offense are included in the greater one. 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 a 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.
In the case of State v. Ash,1 the defendant was convicted of theft of an automobile, and on appeal claimed that the trial court should have instructed on the included offense of depriving an owner of the use of his automobile. This Court answered that claim in the following language:
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 also 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.
It appears to me that the crime of depriving is not included in that of theft; and even if it were included, a finding of “not guilty” of theft would prevent a finding of guilt of the lesser offense, the elements of which were all included in the crime of which he was acquitted.
The judgment should be reversed.
. 23 Utah 2d 14,456 P.2d 154 (1969).