People v. Lozon

Full title: PEOPLE v LOZON

Court: Michigan Court of Appeals

Date published: Jul 26, 1973

48 Mich. App. 642 (Mich. Ct. App. 1973)

211 N.W.2d 43

Opinion

Docket No. 14492.

Decided July 26, 1973.

Appeal from Recorder's Court of Detroit, Joseph A. Gillis, J. Submitted Division 1 May 14, 1973, at Detroit. (Docket No. 14492.) Decided July 26, 1973.

Daniel G. Lozon was convicted of unlawfully driving away an automobile. Defendant appeals. Affirmed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

David William Potts, for defendant.

Before: R.B. BURNS, P.J., and V.J. BRENNAN and VAN VALKENBURG,^_ JJ.

_ Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

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 N.W. 64; People v Stanley, 349 Mich. 362; 84 N.W.2d 787.) 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 Members, 34 Mich. App. 224; 191 N.W.2d 66 (1971).

Affirmed.