State v. Madrid

OLIVER, Acting Judge.

This is an appeal from a jury verdict and a judgment of conviction, which found defendant-appellant guilty of the crime of incest. The issue presented herein is whether incest is a lesser included offense of rape. We hold that the trial court's instruction to the jury, that incest is a lesser included offense of the crime charged, was error. We set the judgment of conviction aside, on the basis that the defendant was convicted of a crime with which he had never been charged.

The facts necessary to an understanding of this case are basically that defendant *737was charged with…