Defendant was convicted by a jury of unlawfully driving away an automobile, MCLA 750.413; MSA 28.645.
At preliminary examination defense counsel filed notice of an intent to claim an insanity defense and moved for the appointment of psychiatrists to examine defendant. Pursuant to the court’s order, results of the examination were sent to defense counsel and the prosecuting attorney.
At trial, defense counsel made no mention of the defense of insanity. On appeal, defendant claims the notice of insanity and motion for psychiatric assistance required a commitment for forensic evaluation to determine his competency at the time of trial. We disagree.
It is our determination that the defense motion was made pursuant to MCLA 768.20; MSA 28.1043, which sets out pretrial notice requirements regarding the intention to rely on a theory that a defendant was insane at the time of the offense rather than pursuant to MCLA 767.27a; MSA 28.966(11), which sets out the procedure for forensic commitment to determine competency at trial. This conclusion is based on the language of the motion and defense counsel’s actions during trial.
The motion provided defendant would offer "testimony to establish his insanity at the time of the alleged offense”, and requested the assistance of court-appointed psychiatrists to aid in the preparation of the defense. The report was filed two weeks before trial. Defense counsel had ample opportunity to raise the issue in opening statement, by the presentation of witnesses, and closing argument. He chose otherwise. The mere assertion of such a defense does not entitle defendant to jury consideration. Kregger v Bannan, 170 F Supp 845 (ED *141Mich, 1959). Failure to present competent proof at trial forecloses any appellate consideration of the merits of the defense. See People v Minton, 25 Mich App 225 (1970). Similarly, we do not feel the defense motion for psychiatric assistance requested along with the notice of intention to rely on an insanity theory required forensic commitment and evaluation.
Although defendant now urges that because other language included in the motion suggests a request for commitment his motion should be so construed, close examination of the pleadings and the trial court’s order indicate the overall intent was to raise the defense and not demand forensic evaluation. The language of the statute, MCLA 767.27a, supra, and GCR 1963, 786, while liberally construed to effectuate its purposes,1 has never required automatic commitment. In People v Sherman Williams, 38 Mich App 370, 382 (1972), Judge O’Hara wrote:
"[W]hen prior to trial a motion raising the issue of incompetence is made, commitment to a diagnostic facility will be mandated only if a sufficient showing of mental incompetency is made by the moving party, or when other evidence is before the court which raises a bona fide doubt as to the defendant’s mental competency to stand trial.”
No such showing was made below.
Defendant next argues the trial court’s jury instructions distinguishing the elements of unlawfully driving away an automobile, MCLA 750.413; *142MSA 28.645, from the lesser included offense of unlawful use of an automobile, MCLA 750.414; MSA 28.646, were unclear.
The difference between the two offenses is clear; unlawfully driving away an automobile first requires that the possession of the vehicle be taken unlawfully from the owner. People v Smith, 213 Mich 351, 353 (1921). Unlawful use of an automobile requires only that the use of a vehicle, lawful possession of which has already been obtained, be illegal. See People v Smith, supra; United States v One 1941 Chrysler Brougham Sedan, 74 F Supp 970 (ED Mich, 1947); People v Ryan, 11 Mich App 559, 561 (1968).
The trial court explained that distinction to the jury. Upon completion of the reading of the charges to the jury, both the prosecutor and defense attorney expressed satisfaction. The jury .requested clarification. The trial court again explained the difference in the offenses. Defense counsel again made no objection. We are convinced no error occurred. See GCR 1963, 516.2.
The third issue raised questions the propriety of the consideration of juvenile records in passing sentence. There is currently a split of opinion in this Court concerning this issue. MCLA 712A.23; MSA 27.3178(598.23), which provides that juvenile court dispositions shall not be proper "evidence” against an individual, is the source of the confusion.
People v Coleman, 19 Mich App 250 (1969), held there was no prohibition in using such dispositions in sentencing since MCLA 771.14; MSA 28.1144, requires an inquiry into the "antecedents, character and circumstances” of a person about to be sentenced. In Coleman, this Court reasoned that such inquiry, to be true and complete, must in-*143elude whatever reasonably obtainable juvenile record an accused may have. This Court stated:
"Only by examination of a complete report, containing any such record, can the court properly perform its duties; to determine whether 'defendant is not likely again to engage in an offensive or criminal course of conduct’ and whether 'the public good does not require that the defendant shall suffer the penalty imposed by law’ [MCLA 771.1; MSA 28.1131]; and, if probation be granted, 'to fix and determine the period and condittanp’ thereof. [MCLA 771.2; MSA 28.1132].
"Nor does § 23 preclude examination of juvenile records for the purpose of sentencing. The express terms of the statutory prohibition bar only the use of prior juvenile dispositions as 'evidence’. Read in the light of its generally accepted meaning, 'evidence’ connotes testimony and matters actually presented at trial. The post-conviction examination of juvenile records in order to impose a fair and just sentence is not a use of such records as 'evidence’.” People v Coleman, supra, 256.
This position maintained control of the issue until 19722 when another panel of this Court decided People v McFarlin, 41 Mich App 116 (1972), leave granted, 388 Mich 761 (1972).3 The McFarlin interpretation favored a more expansive definition of "evidence”, and excluded juvenile records from sentencing considerations.
It is our feeling that the Coleman rule is better reasoned and therefore find no error in the trial *144judge’s consideration of defendant’s juvenile record in passing sentence.
Defendant was sentenced to a term of four years minimum to five years maximum in the State Prison of Southern Michigan. In People v Tanner, 387 Mich 683, 690 (1972), the Michigan Supreme Court held that " * * * any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act”.4 Accordingly, we order that the minimum sentence be reduced to three years and four months5 and affirm.
Quinn, P. J., concurred.See People v Chambers, 14 Mich App 164 (1968); People v Kerridge, 20 Mich App 184 (1969); People v Gomolak, 386 Mich 540 (1972); People v Hartford, 25 Mich App 200 (1970); People v Ledbetter, 31 Mich App 160 (1971); People v Howard, 37 Mich App 662 (1972); People v Goodall, 37 Mich App 223 (1971); People v Jackson, 40 Mich App 237 (1972); People v Chase, 38 Mich App 417 (1972); People v Overby, 42 Mich App 1 (1972).
See also People v Charles Williams, 19 Mich App 544 (1969), leave den, 384 Mich 753 (1970); People v Matthews, 22 Mich App 619 (1970); People v Davidson, 23 Mich App 4 (1970); People v Richardson, 25 Mich App 117 (1970); People v Welch, 25 Mich App 694 (1970); People v McGilmer, 26 Mich App 357 (1970); People v Hammond, 27 Mich App 490 (1970); People v Bradshaw, 28 Mich App 354 (1970); People v Ward, 33 Mich App 308 (1971); People v Wright, 35 Mich App 365 (1971); People v Potts, 39 Mich App 104 (1972); People v Jones, 40 Mich App 368 (1972); People v Pence, 42 Mich App 215 (1972).
See also People v Bukoski, 41 Mich App 498 (1972); People v Anderson, 42 Mich App 10 (1972).
MCLA 769.8; MSA 28.1080.
Pursuant to GCR 1963, 820.1(7).