Defendant contends his jury conviction for taking possession and driving away a motor vehicle, under CL 1948, § 750.413 (Stat Ann 1954 Rev § 28.645), denied him equal protection of the law. He argues that two statutes of unequal penalties apply to the same crime, the other statute being CL 1948, § 750.414 (Stat Ann 1954 Rev § 28-.646). Thus, defendant contends he was subject to the arbitrary choice of the prosecutor as to which statute to apply.

*271In People v. Ryan (1968), 11 Mich App 559, this Court resolved defendant’s argument by holding that the statutory crimes are distinct. The prosecutor may use his discretion in proceeding under either statute. The facts encompassed the crime charged, and therefore, the prosecutor did not abuse his discretion.

Affirmed.