Defendant was convicted of homicide by vehicle by reckless driving. Sections 66-8-101 and 66-8-113, N.M.S.A.1978. He requested instructions on an asserted lesser included offense, which were refused. He claims the refusal was error. The refused instructions were to the effect that homicide by vehicle could be committed by a killing while unlawfully operating a vehicle. Defendant’s position is that any killing by unlawful operation of a vehicle is covered by § 66-8-101, that under § 66-8-101(A), the offense is a misdemeanor, that only under the two specific provisions of § 66-8-101(B), is the offense a felony. Defendant’s contention is that a killing under § 66-8-101(A), is a lesser offense included within § 66-8-101(B), and for this reason his requested instructions were erroneously refused. The literal wording of § 66-8-101, and legislative history support defendant’s argument.
We hold that the legislative intent and relevant case law supports the defendant’s contention. Thus, the requested instructions should not have been refused.
The homicide by vehicle statute is part of the Motor Vehicle Code enacted in 1978. Section 66-1-1, N.M.S.A.1978. Section 66-8-101, reads:
A. Homicide by vehicle is the killing of a human being in the unlawful operation of a motor vehicle.
B. Any person who commits homicide by vehicle while violating Section 66-8-102 or 66-8-113 NMSA 1978 is guilty of a felony.
Pertinent to defendant’s contentions are two penalty provisions, §§ 66-8-7 and 66-8-9, N.M.S.A.1978. They read:
66-8-7. Penalty for misdemeanor.
A. It is a misdemeanor for any person to violate any provision of the Motor Vehicle Code [66-1-1 to 66-8-140 NMSA 1978] unless the violation is declared a felony.
B. Unless another penalty is specified in the Motor Vehicle Code, every person convicted of a misdemeanor for violation of any provision of the Motor Vehicle Code shall be punished by a fine of not more than one hundred dollars ($100) or by imprisonment for not more than ninety days, or both.
66-8-9. Penalty for felony.
Any person convicted of violating any provision of the Motor Vehicle Code [66— 1-1 to 66-8-140 NMSA 1978] declared a felony, and punishment is not specified, shall be punished by imprisonment for not less than one year nor more than five years or by a fine of not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) or both.
Read literally, § 66-8-101(A), defines the crime of homicide by vehicle to include any killing of a human being in the unlawful *351operation of a motor vehicle. Read literally, only killings involving a violation of either § 66-8-102 or § 66-8-113, N.M.S.A. (1978) are declared to be felonies, with punishment under § 66-8-9. Other killings not declared to be felonies, are misdemeanors, see § 66-8-7(A), with punishment under § 66-8-7(B).
Two comprehensive laws pertaining to motor vehicles were enacted in 1953.
Generally speaking, Laws 1953, ch. 138 enacted the Uniform Motor-Vehicle Administration, Certificate of Title, and Anti-Theft Act. See Laws 1953, ch. 138, § 119. Sections 114 and 115 of Chapter 138 were penalty provisions. The substantive portions of §§ 114 and 115 were the source of the penalties now appearing in §§ 66-8-7 and 66-8-9, supra. Laws 1953, ch. 138 had nothing to do with a killing by vehicle and the penalty provisions of that law were not applicable to a vehicular killing.
Generally speaking, Laws 1953, ch. 139 enacted the Uniform Act Regulating Traffic on Highways. See Laws 1953, ch. 139, § 193. Section 53 of Chapter 139 set forth the offense of negligent homicide in terms of death caused by driving in reckless disregard of the rights of others. Section 53 stated its own penalty, a penalty greater than the general penalty for misdemeanors set forth in § 181 of Chapter 139. Section 53 of Chapter 139 was repealed by Laws 1957, ch. 239. With this repeal in 1957, there was no special law applying to vehicular killing; after the repeal, a vehicular killing would be prosecuted under the general homicide laws. See State v. Deming, 66 N.M. 175, 344 P.2d 481, 77 A.L.R.2d 964 (1959).
The provisions of Laws 1953, chs. 138 and 139, together with other motor vehicle provisions, were compiled in 1953 N.M.S.A. as Chapter 64, Articles 1 through 23. Laws 1961, ch. 213, § 1 declared that these portions of the 1953 compilation could be cited as the “Motor Vehicle Code”. Although the two 1953 laws were compiled in the “Code”, Laws 1961, ch. 213 § 1 left intact the separate penalty provisions of the two 1953 laws. However, Laws 1961, ch. 185 stated penalties for “Motor Vehicle Code” misdemeanors and felonies in language identical to §§ 66-8-7 and 66-8-9, supra. Laws 1961, ch. 185 also repealed the separate penalty provisions of the two 1953 laws. Thus, after the 1961 legislation, there was one general penalty provision for misdemeanors and one general penalty provision for felonies under the “Motor Vehicle Code.”
Laws 1969, ch. 138 enacted the homicide by vehicle statute. Its substantive language was identical to the language of § 66-8-101. The statute was enacted as “a new Section 64-22-1, N.M.S.A. 1953”. By this language, the homicide by vehicle statute was enacted as a part of the “Motor Vehicle Code” to which the general penalty provisions for misdemeanors and felonies applied.
Both the homicide by vehicle statute and the general penalty provisions of the “Motor Vehicle Code” were repealed by Laws 1978, ch. 35, and a new Motor Vehicle Code was enacted. This new Code enacted §§ 66-8-7, 66-8-9 and 66-8-101, as quoted in this opinion. The relationship between the homicide by vehicle provision and the penalty provisions was not changed by the 1978 enactment. The literal reading of these statutes, which supports defendant’s position, has existed since 1969. The lack of legislative change in the 1978 law further supports defendant’s argument. See State v. Thompson, 37 N.M. 229, 20 P.2d 1030 (1933).
Is there a lesser included offense of homicide by vehicle by careless driving? If so, it has not been declared to be a felony and, thus, is a misdemeanor under § 66-8-7, supra. The maximum penalty for such a killing by careless driving would be no more than the maximum penalty for careless driving without a killing. It may be argued that the Legislature could not have intended that a killing by careless driving would have such a penalty consequence, and that to avoid an absurd result, we should hold that the Legislature had no intent that there be lesser included offenses included *352within the offense of homicide by vehicle. We cannot agree with this proposition.
There are degrees in our “Homicide by Vehicle” statute. Defendant was entitled to instructions on the unlawful operation of his vehicle other than reckless driving.1 If the defendant is convicted of homicide due to reckless driving, it is a felony. It is undisputed that defendant drove his car left of the center lane when the accident occurred. If the defendant is convicted of homicide by reason of driving on the wrong side of the road it is a misdemeanor.
A “lesser included offense” is one which is one composed of some, but not all, elements of a greater offense and which does not have any element not included in the greater offense so that it is impossible to commit the greater offense without necessarily committing the lesser offense. See R.Crim.Proc. 44(d); State v. Patterson, 90 N.M. 735, 568 P.2d 261 (Ct.App.1977); State v. Kraul, 90 N.M. 314, 563 P.2d 108 (Ct.App.1977); State v. Medina, 87 N.M. 394, 534 P.2d 486 (Ct.App.1975).
In the instant case, the greater offense is homicide by vehicle, the killing of a human being in the unlawful operation of a motor vehicle. Unlawful operation exists by way of reckless driving, driving under the influence of intoxicating liquor, speeding, driving on the wrong side of the road and careless driving. All of these elements of these methods of operation are included in the greater offense. These unlawful operations have no element not included in the greater offense.
The State charged that defendant did: operate a motor vehicle in a reckless manner ... and while doing so did unlawfully kill Edgar D. Moates .... (Emphasis added.)
Under this charge, the defendant could operate his motor vehicle in a reckless manner. But if it was not this conduct that unlawfully killed the victim, defendant would be guilty of reckless driving and not homicide by vehicle. The same result would occur if defendant was unlawfully operating his car in any of the “unlawful” methods set forth above.
The failure to instruct on a lesser included offense is reversible error where there is some evidence to establish the lesser offense. State v. Wingate, 87 N.M. 397, 534 P.2d 776 (Ct.App.1975). There is some evidence to this effect from the testimony of defendant and an accident analyst.
This case is reversed and defendant granted a new trial.
IT IS SO ORDERED.
WOOD, C. J., dissenting.
SUTIN, J., specially concurring.