Stovall

Defendants were informed against jointly in two counts, the first charging them with the crime of grand theft, the second charging a violation of section 146 of the Motor Vehicle Act, both charges being based on the same taking of an automobile. Stovall and Roark entered pleas of guilty to the charge made under section 146 and the grand theft charge was dismissed as to them. Miller pleaded not guilty as to both charges and after trial was convicted of grand theft and acquitted of the charge of violating section 146. Miller appeals from the judgment and from an order of the trial court denying his motion for a new trial.

Section 146 of the Motor Vehicle Act (Stats. 1923, p. 564, Deering’s Gen. Laws, Act 5128) provides: “Any person who shall drive a vehicle not his own, without the consent of the owner thereof and in the absence of the owner, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, shall be deemed guilty of a felony.” As this language denounces the asportation of an automobile, under the other circumstances stated in the section, appellant contends…